THE HIGH COURT OF SINDH KARACHI

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ORDER SHEET

C.P. No. D – 3213 of 2023

DATE ORDER WITH SIGNATURE OF JUDGE(S)

Fresh Case.

1. For order on Misc. No.15233 of 2023.

2. For order on Office Objection.

3. For order on Misc. No.15234 of 2023.

4. For order on Misc. No.15235 of 2023.

5. For hearing of Main Case.

03-07-2023

M/s. M.M. Aqil & Faizan Memon, Advocates for Petitioners.

**********

1] Urgency granted.

2-5] The Petitioners have challenged notice dated 21-06-2023

[impugned notice] issued under section 185 of the Cantonments

Act, 1924, [the Act] requiring the Petitioners to remove an iron

structure erected within Kashif Centre, a building on Shahrah-e-

Faisal, Karachi Cantonment. Per the Petitioners, the iron structure

erected is for the purposes of establishing a cafeteria in an open

space within the building, and that the same is being done at the

instance of the majority occupants of the building excepting the

Respondent No.4 at whose behest the impugned notice has been

issued.

Learned counsel first submit that the impugned notice having

been issued by the Cantonment Executive Officer is without lawful

authority as the same is not backed by a resolution of the

Cantonment Board. However, the impugned notice categorically

states that it has been issued “for and on behalf of the Cantonment Board

Karachi”. In any case, the foremost question is whether the act of

construing a cafeteria by the Petitioners is in accordance with law.

Sections 178A and 179 of the Act envisage the sanction of the

Board for erecting or re-erecting a building by stipulating as follows:

C.P. No. D – 3213 of 2023

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―178A. Sanction for building.-- No person shall erect or

re-erect a building on any land in a cantonment, except with

the previous sanction of the Board, nor otherwise than in

accordance with the provisions of this Chapter and of the

rules and bye-laws made under this Act relating to the

erection and re-erection of buildings.

179. Notice of new buildings.--(1) Whoever intends to erect

or re-erect any building in a cantonment shall apply for

sanction by giving notice in writing of his intention to the

Board.

(2) For the purposes of this Act, a person shall be deemed to

erect or re-erect a building who—

(a) makes any material alteration or enlargement of

any building, or

(b) converts into a place for human habitation any

building not originally constructed for that purpose,

habitation a building originally constructed as one

such place, or

(d) converts two or more places of human habitation

into a greater number of such places, or

(e) converts into a stable, cattle-shed or cow-house

any building originally constructed for human

habitation, or

(f) makes any alteration which there is reason to

believe is likely to affect prejudicially the stability or

safety of any building or the condition of any

building in respect of drainage, sanitation or hygiene,

(g) makes any alteration to any building which

increases or diminishes the height of, or area

converted by, or the cubic capacity of, the building or

which reduces the cubic capacity of any room in the

building below the minimum prescribed by any

bye-law made under this Act.‖

The sanction of the Board is then either accorded or refused under

section 181 of the Act.

When queried whether the Petitioners have obtained the

sanction of the Board for constructing the cafeteria, learned counsel

submit that section 178A and 179 of the Act are not attracted

inasmuch as the Petitioners are not erecting any new building but

merely a cafeteria within an existing building. However, in our

view, the definition of ‗building‘ in section 2(iv) of the Act is not

confined to a new building. It includes additions being made within

an existing building. That much is also manifest in section 179(2) of

the Act supra. It is not the case of the Petitioners that the nature of

C.P. No. D – 3213 of 2023

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construction being raised does not require a prior sanction from the

Board, in that, by letter dated 15-05-2023 the Petitioners themselves

have sought sanction from the Cantonment Board for constructing

the cafeteria. Since that sanction has not been issued thus far, nor is

there anything to show that such sanction has been declined, the

petition is without any force. The petition is therefore dismissed in

limine alongwith pending application(s).

JUDGE

SHABAN*