IN THE HIGH COURT OF SINDH
AT KARACHI
(Constitutional Jurisdiction)
Constitution Petition No-D- /2004
Jetp Relief
Society
Through its President ……………………….………………Petitioner
VERSUS
Chief
Controller of Building
Karachi
Building Control Authority
Having
its office at Annex Building
Civic
Center, University Road,
Karachi.
& Others………………………………………..Respondents
Constitution Petition
under Article 199
of The
Constitution of Islamic Republic of Pakistan, 1973.
The Petitioner above named beseeches as under:-
1.
That the Jetp Relief Society has authorized its
president to file present legal proceedings ( Original Authority letter is
enclosed and marked as ‘A’ )
2.
That the Jetp Relief Society/petitioner about 20 years
before lawfully constructed a building according to approved Building plan in
the name and style of ‘Jetp Plaza, and the respondent # 1 vide its letter #
KBCA/DCB/-10 dated 31.08.1987 approved the completion plan of the building and
issued occupancy certificate. (Photo state copy of occupancy certificate is
enclosed herewith and marked as ‘B’ )
3.
That the project is residential cum commercial and the
petitioner put the poor of its community in flats at lowest rate than the cost
of the flat in order to accommodate the needy and poor. The petitioner allotted
the basement of the Building to GL and his family at market rate; hence they
are enjoying the possession of basement for the last twenty years. The society
as a matter of policy did not sub-lease any of the unit including basement to
any one with object to avoid that in future occupant would not be able to sell
the unit to any other person other than a person belonging to this community.
The lease hold rights of the ‘Jetp Plaza’ are still with the petitioner. (Photo
state copy of allotment order of basement is enclosed herewith and marked as ‘C’)
4.
That the respondent # 1 is legal functionary,
performing its duties in accordance with the provisions of The Sindh Building
Control Ordinance, 1979, coupled with Karachi Building Control Licensing
Regulation, 1982. The Section 6 of the aforesaid Ordinance completely restrains
from raising construction of any building before the Authority except in the
prescribed manner, after obtaining approved
plan of such building and after grant of no objection certificate for
the construction thereof on payment of such fee as may be prescribed. The Section 7-A of the Ordinance authorizes
the respondent # 1 to demolish the building constructed in violation of Section
6(1) of The Sindh Building Control Ordinance, 1979.
5.
That on 30.09.2004, the petitioner received a
complaint from the GL that respondent # 2 to 4 overnight has raised illegal
steps/walls up to eight feet, resultantly eight windows of 4 2 feet, which were
installed for ventilation purpose at road side in basement since last twenty
have been completely closed and now 15,000 square feet basement has turned in darkness
as no air or sunlight can pass through it. (Photo state copy of Complaint is
enclosed herewith and marked as ‘D’)
6.
That the petitioner reported the matter to leassor and
General Secretary of The Kathiawar Co-operative Housing Society Ltd/ lessor
requested the respondent # 1 to remove illegal construction raised by
respondent # 2 to 4 but respondent # 1 has failed to perform its lawful duty. (Photo
state copy of Complaint/letter dated 01.10.2004 is enclosed herewith and marked
as ‘E’)
7.
That
the petitioner apart from above request made which was made to respondent # 1 also made request to Nazim
of Union Council as well as to Station
House Officer but all in vain as illegal construction raised by respondent
# 2 to 4 is still as they are demanding
Rupees Four Hundred thousand. ( Photo state copies of Notice dated
7102004, 8.10.2004 of UC NAZIM and
Police are enclosed herewith and marked as F, G and H)
8.
That
the respondent # 2 to 4 by raising illegal construction on road side hampered
the rights of other occupants of the vicinity, and in such circumstances
respondent # 1 is duty bond and it is his statutory obligation that on receipt of
information from petitioner to take legal action against the respondent # 2 to 4
and demolish the illegal construction raised by them but respondent # 1 failed
to discharge its lawful duty for the best reasons known to him.
9.
That
respondent # 1 is legal body, and is functioning in connection with the affairs
of the province of Sindh and are charged with multifarious duties relate able
to enforcement of law, subject to control of judiciary and movement High Court
comes to conclusion that Government functionary are not performing duties
within the parameters assigned to them, High Court would come to the rescue of
the aggrieved citizen.
10.
That under Article 4 of the Constitution this
is an inalienable right of every citizen is to be dealt with in accordance with
law and whenever a right of a citizen is violated and brought to the notice of
High Court should be investigated and appropriate order is to be passed in
exercise of its jurisdiction under Article, 199 of the Constitution.
11.
That no other adequate remedy is available to the petitioner for seeking direction against
the respondent # 1 for demolition
except by filling this constitution petition in this Honorable Court .
12.
That there is no impugned order in this constitution petition, and the petitioner has not
filed any other petition prior to this constitution petition nor he has filed
any complaint before any court of law on the subject matter for the relief
prayed in this constitution petition.
P R A Y E R
The
petitioner therefore prays that this Honorable Court may be pleased to issue
appropriate writ/ direction as under:-
(a)
Directing the
respondent # 1 to perform its duty
legally vested to him and demolish illegal / unauthorized construction
raised by respondent # 2 to 4 along with walls of
basement , which have closed eight windows of the basement of Jetp Plaza,
constructed on plots No 33 Karachi with direction to submit report
of its compliance in this Honorable Court.
(b)
Any other equitable relief (S) as this Honorable Court
may deem fit and proper under the circumstances of this constitution petition.
Karachi Petitioner
Dated: 14 -10-2004
Advocate for the Petitioner
APPLICATION UNDER SECTION 151
CODE
OF CIVIL PROCEDURE
On consideration of the facts and grounds
disclosed in the accompanying affidavit, it is most respectfully prayed that
this Honorable court may be pleased to exempt the petitioner from filing
original/certified copies of Annexed A,B,C, and E.
prayer in the
greater interest of justice and equity.
Karachi.
Dated: 14-10-2004 Advocate for the petitioner.
A F F I D A V I T
I, _________, Muslim Adult President of Jetp Relief Society having its office at Flat No.__,
Karachi, do hereby state on oath as under:-
1.
That
I am petitioner in the above matter, as such am fully conversant with the facts
there of and able to depose the same.
2.
That
the accompanying application for
inspection of site has been drafted and
filed by my counsel under my specific instructions, contents therein are true
and correct to the best of my knowledge,
information and belief.
3.
That
I shall be seriously prejudiced and shall suffer an irreparable loss, until
accompanying application is allowed.
4.
That
whatever stated above is true and correct to the best of my knowledge and
belief.
Karachi
14-10 -2004. DEPONENT.
Identified by me .
SMZUBAIR
Advocate.
APPLICATION UNDER ORER XXXIX RULE 1 AND
2
R/W
SECTION 151 CODE OF
CIVIL PROCEDURE
On consideration of the facts and grounds
disclosed in the accompanying affidavit and in the memo of petition , it is
most respectfully prayed that this
Honorable court may be pleased to restrain the respondents # 2 and 3, his agents ,workers ,attorneys and
all other person (S) working for
them, on their behalf from raising further illegal
construction in violation of
approved plan over plot # Z13 and further from creating third party interest,
pending disposal of this Constitution Petition.
An ad-interim injunction is to be solicited
meanwhile in terms of main prayer in the greater interest of justice and
equity.
Karachi.
Dated: 12-10-2004 Advocate for the petitioner.
A F F I D A V I T
I, Muhammad, do hereby state on oath as under:-
2.
That I am Office Secretary of the
petitioner in the above matter, as am fully conversant with the facts there of.
3.
That the accompanying application
under order XXXIX Rule 1 and 2 read with section 151, Code Of Civil
Procedure has been drafted and filed by
my counsel under my specific instructions, contents therein are true and correct
to the best of my knowledge, information
and belief.
4.
That construction raised on arcade by
respondent # 2 and .3 over his
plot # Z-130 AdamJee Nagar is absolutely
illegal and without approved plan and the same is liable to be demolished as
due to this illegal construction rights of the petitioner and occupants of the
vicinity have been hampered. Any further construction if any raised by
respondent # 2 and 3 shall create
difficulties for every one therein.
5.
That I say that I have good prima
facie case and balance of convenience lies in my favor and there is likely
hood that I shall win in this petition .
6.
That for the sake of brevity and in
order to avoid duplication, I adopt the contents of accompany application as
well as main petition as an integral part and parcel of this affidavit and do
not repeat the same.
7.
That I shall be seriously prejudiced
and shall suffer an irreparable loss, until accompanying application is
allowed.
8. That
whatever stated above is true and correct to the best of my knowledge and belief.
Karachi
Dated: 12-10-2004. DEPONENT.
APPLICATION UNDER
ORDER XVIII
RULE 18 CODE OF CIVIL
PROCEDURE,
On consideration of facts and grounds disclosed in the
accompanying affidavit , it is most respectfully prayed that this Honorable
court may be pleased to direct the Nazir of this Honorable to inspect the site
of plot #.__ (Jetpt Plaza ) and submit report of illegal construction raised thereon, as a result 8 windows of
basement has been closed.
Karachi.
Dated : 14-10-2004 Advocate for the
petitioner.
AFFIDAVIT
I, Muhammad do hereby state on oath as under:-
1.
That I am petitioner
as such am fully conversant with the facts there of and able to depose
the same.
2.
That the accompanying application
under Order XVIII Rule 18 Code Of Civil Procedure has been drafted and filed by my counsel
under my specific instructions, contents therein are true and correct to the
best of my knowledge, information and belief.
3.
That I say that the respondent #
2and 3
have raised illegal construction have occupied seven feet land of arcade without approved plan , inspection is just
and necessary. as respondent # 1 has failed to discharge its lawful duty.
4.
That I shall be seriously prejudiced
and shall suffer an irreparable loss, until accompanying application is
allowed.
5.
That whatever stated above is true
and correct to the best of my knowledge and belief.
Karachi
Dated: 01-02-2001. DEPONENT.
APPLICATION UNDER RULE IX CHAPTER III A,
VOLUME V SINDH CHIEF COURT RULES
It is most respectfully
submitted that this Honorable Court may kindly be pleased to treat this
matter as urgent motion and fix in
Court on .10.2004 for Preliminary
hearing, as if immediate action is not taken, the
private respondents will raise more illegal construction and shape of the
property shall be changed.
The prayer is made most earnestly in the greater
interest of Justice and equity.
Karachi.
Dated: 13.10
.2004. Advocate for the
petitioner.
APPLICATION UNDER ORDER IX RULE 4
R/W
SECTION 151 CODE OF CIVIL PROCEDURE
On consideration of facts and grounds incorporated in the accompanying
affidavit, it is most respectfully prayed that this Honorable Court may be
pleased to set aside/ recall the order dated 15-03-2001, dismissing the petition in default
and restore the same to its original position.
Prayer is made most earnestly in the greater interest of justice and
equity.
Karachi Advocate
for the petitioner
Dated: 16-03-2001
AFFIDAVIT
I, Muslim adult, having office at ____, Karachi do hereby state on oath
as under:
1.
That I counsel of the petitioner in
the above matter and am fully conversent with facts thereof and able to depose
the same.
2.
That on 15-03-2001, when this petition was fixed for
preliminarily hearing, I was also busy
in Special Criminal ATA #. 915/2000, before learned DB – IV, First Appeal #. 819/2000,
before Mr. Justice Zia Perwez, Civil Suit # 5219/2000 before Mr. Justice Sarmad
Jalal Osmany and Execution # . 214/1996.
3.
That this petition was fixed in
Additional list and in main list there were 39 cases in katcha peshi and I was
under impression that number of this petition will come after tea break.
4.
That I checked in the tea break and
found that the matter has been dismissed in non-prosecution.
5.
That my absence was not deliberate
nor will full but was for the reasons mentioned above.
6.
That I say that order dated 15-03-20001 be recalled,
otherwise petitioner shall be seriously prejudiced and suffer and irreparable
loss.
7.
That I adopt the contents of
accompanying application as an integral part and parcel of this affidavit and
in order avoid duplication do not repeat the same.
That whatever stated above is true and correct to the best of my
knowledge, information and belief.
Deponent
APPLICATION UNDER RULE IX CHAPTER III A,
VOLUME V SINDH CHIEF COURT RULES
It is most
respectfully submitted that this
Honorable Court may kindly be pleased to treat this matter as urgent motion and fix in court on 31.05.2001 for Katcha peshi as if immediate action is not taken, the respondent
# 2
will raise more illegal construction over her plot and this will
hamper the rights of people
of vicinity and particularly of the petitioner.
The prayer is made most earnestly in the greater
interest of Justice and equity.
Karachi.
Dated: 12.10
.2004. Advocate for the
petitioner.
APPLICATION UNDER ORDER IX RULE 4
R/W
SECTION 151 CODE OF CIVIL PROCEDURE
On consideration of facts and grounds incorporated in the accompanying
affidavit, it is most respectfully prayed that this Honorable Court may be
pleased to set aside/ recall the order dated 15-03-2001, dismissing the petition in default
and restore the same to its original position.
Prayer is made most earnestly in the greater interest of justice and
equity.
Karachi Advocate
for the petitioner
Dated: 12-10-2004
AFFIDAVIT
I, do hereby state on oath as under:
1.
That I counsel of the petitioner in the above matter
and am fully conversant with facts thereof and able to depose the same.
2.
That on 15-03-2001, when this petition was fixed for preliminarily
hearing, I was also busy in Special Criminal ATA #. 915/2000, before learned DB
– IV, First Appeal #. 819/2000, before Mr. Justice Zia Perwez, Civil Suit # 5129/2000
before Mr. Justice Sarmad Jalal Osmany and Execution # . 214/1996.
3.
That this petition was fixed in main list at serial #
32 and I was under impression that
number of this petition will come after tea break.
4.
That I checked in the tea break and found that the
matter has been dismissed in non-prosecution, while illegality has come on
record as Nazir has inspected the site and this Honorable court was pleased to
grant injunction order.
5.
That my absence was not deliberate nor will full but was for the reasons mentioned above.
6.
That I say that order dated 15-03-20001 be recalled, otherwise
petitioner shall be seriously prejudiced and suffer and irreparable loss.
7.
That I adopt the contents of accompanying application
as an integral part and parcel of this affidavit and in order avoid duplication
do not repeat the same.
That
whatever stated above is true and correct to the best of my knowledge,
information and belief.
Deponent
APPLICATION UNDER RULE IX CHAPTER III A,
VOLUME V SINDH CHIEF COURT RULES
It is most respectfully submitted
that this Honorable Court may kindly be pleased to treat this matter as urgent
motion and fix in
court on 21.03.2001 restoration application for order. As illegality
of the respondents has been noted down by the Nazir in inspection and by
dismissing this petition injunction order has also been vacated and if
immediate action is not taken, the respondent #
3 will raise more illegal
construction over his plot.
The prayer is made most earnestly in the greater
interest of Justice and equity.
Karachi. Advocate for the
petitioner.
Dated: 16.03 .2001.
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