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Constitutional Petition No. D‑94 of 1982, decided on 5th May, 1982.

--‑ Art. 9 read with Sind Building Control Ordinance (V of 1979);S 4‑Constitutional petition‑Prematurely of Owner of plot whereupon building plan approved in respect of construction of residential premises, proceeded to construct commercial building ... without permission of Development Authority or sanction for such conversion‑Owner submitting plan for regularisation of variation in construction and deviation from approved plan‑‑Owner's application for conversion of plot from residential to commercial lying under objection and not to be considered unless objection removed‑Owner filing constitutional petition without waiting for decision on his application‑Owner receiving notice from respondent No. 3 restrain ing him from using premises for commercial purposes‑Master Plan and Environmental Control Department designated as Authority for purpose of Sind Building Control Ordinance‑Vires of notice could not be challenged‑Owner's application for deviation from original plan pending and petition premature.

Faizuddin for Petitioner.

Mirza Yaqoob Baig for Respondent No. 4.

Date of hearing: 5th May, 1982.

.‑By the present petition under Article 9 of the Provisional Constitution Order, the petitioner, Aziz‑ur Rehman, seeks the following reliefs :‑‑

"The humble petitioner prays for declaration and direction as under :

(i) That the Respondents 1, 2 and 3 have no lawful authority to assume delegation of powers contained in the K. D. A's Order No. 5 of 1957 and cannot take any action beyond the scope of Sind Building Control Ordinance, 1979.

(ii) That the Respondents No. 1, 2 and 3 possess no lawful authority to demolish and destroy the property of the petitioner by abuse of their official authority and all actions to be taken or intended to be taken other than mentioned in section 19 of the Sind Building Control Ordinance, 1979 are repugnant, bad in law and ultra vires.

(iii) That the revised Plan tendered on or about 7th October, 1980 by the petitioner may first be disposed of and petitioner be afforded reasonable opportunity to represent his case for a just and lawful decision rather than be condemned unheard.

(iv) That the Respondents 1, 2, 3 and 4 may please be directed to refrain from doing all that which they are not permitted by law to do (viz. demolition of the property of the petitioner), and further be directed to decide the request of the petitioner for the revised plan."

The brief facts of the case are that the petitioner claims to be owner of Plot No. A‑137 in Block No. 5 in Gulshan‑e‑Iqbal, K. D. A. Scheme A No, 24, Karachi, The building plan had been approved in respect of I construction of residential premises over this plot. The petitioner, however, claims that he read a news item in some local newspaper, stating that all the residential plots of land in the various schemes of Karachi Development Authority, which faced, or, were falling on the main roads, could be Converted into commercial plots on payment of some fee, or, charge to the Karachi Development Authority. The petitioner, to use his own words, "was lured by the viable propensity in justification of the happy vicissitudes, and proceeded to construct a commercial building, of course without any permission of the Karachi Development Authority, or, sanction for such conversion. To such extent, the case is admitted. It is further admitted that there was variation in the construction and deviation from the approved plan. The petitioner thereafter submitted a plan for regularisation by respondent No. 3. In the comments, that have been called, respondent No. 3 admits that a revised plan had been submitted and an application also has been submitted for conversion of the plot from residential to commercial, but it is stated that such application was lying under objections, an therefore the same could not be considered unless such objections were removed. This, it appears, the petitioner is not inclined to do.

The petitioner has received a notice from respondent No. 3, stating that he had opened one shop and was contemplating to open another she on the same plot, and the same was against the building bye‑laws, and h was restrained from using the premises for commercial purposes. Aggrieve by such notice, the petitioner has filed the present petition.

A faint argument has been raised by Mr. Faizuddin in regard to the authority under which the. Building Control Authority had acted. In our view, complete answer is provided by Building Control Ordinance of 1979, which clothes the Authority appointed under the said Ordinance with powers to regulate construction and development within the city. By the Surd Building Control (Amendment) Ordinance III of 1982, section 4 of the original Ordinance was amended, so that the Government could, by notification, appoint anybody corporate, or, council, or, any department or such corporate, or, council, or, any Government department, or, function ary, or, any organisation to act as Authority, as contemplated by clause (b) of section 3 of the said Ordinance. It has not been challenged before us that the Karachi Master Plan and Environmental Control Department, which was initially an organ of the Karachi Development Authority, had been designated as Authority for the purpose of Building Control Ordinance. In such a view of the matter, the vires of this notice could not be challenged.

The next argument of Mr. Faizuddin was that in several other cases, the respondents have permitted deviation on payment, or, levy of some charge. To that extent, the comments submitted by respondent No. 3 state that such permission had been granted in certain specified localities, and under some given conditions. The petitioner, however, has not waited for a decision on his application by the respondents, but has filed this petition at a premature stage. It is crystal clear that his petition for deviation from original plans is still pending.

The petitioner has also relied on the provisions of Article 68 of the D. A. Order (P. O. No. 5 of the 1957) to raise an argument in his sup port, but we are of the view that this provision does not all help the peti tioner,. because he could be granted a completion certificate only after inspec tion is made by the relevant authority, and the construction is found to be in order. In this case, the stand of the respondents is that the construction is in deviation of the original plans. A reference was also made to Article 122 of the same Order, but the purpose for which reference was made was not very clear. In any case, the said provision does not help the petitioner.

We see no force in this petition, which we hereby dismiss in limine.

K. M. A. Petition dismissed.

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