KARACHI, July 11: While provisionally upholding the condition of KBCA no-objection certificates for registration of newly- constructed buildings, a division bench of the Sindh High Court has observed that apparently the requirement could not be imposed without a duly notified amendment in the registration rules.

The bench comprising Justices Sarmad Jalal Osmany and Zia Perwez left the matter to the division bench that initially passed the order for production of NOCs issued by the Karachi Building Control Authority for registration of immovable properties in the district of Karachi. The petitioner alleged that the condition had brought property transactions to a standstill.

The petitioner was represented by Advocate Muhammad Aziz Malik, the provincial government by Additional Advocate-General Abbas Ali and the KBCA by Advocate Shahid Jamil Khan. The detailed order of the bench was available on Saturday.

It said: "The contention of Mr. Aziz Malik is that the impugned order has held-up the entire registration work of the province. According to learned counsel, the said order is otherwise not sustainable in law as per rule 149 item No. XVII of the Sindh Registration Rules only approved building plan is to be submitted from the Karachi Building Control Authority at the time of registration of any sale deed etc. and not an NOC.

Admittedly per learned counsel, the said rule was inserted upon orders of the Member Board of Revenue, Government of Sindh, and hence the same is against the provisions of Section 69 of the Registration Act according to which any amendment in the rules can only be initiated by the Inspector General Registration.

The learned counsel, therefore, prays that both the amendments in rule 149 as well as impugned order / circular whereby an NOC has been required from the prospective transferees / transferors regarding registration of sale deeds etc., which has been issued by the Board of Revenue, should be struck down.

"To this both learned Additional Advocate-General as well as the learned counsel for the KBCA have submitted that as per the orders of a division bench of this court in CP No. 153/2000 passed on 5.5.2004 as well as CP No. 1925/2002 passed on 21.10.2003, a direction has been issued to the law officers that the sub-registrars may be asked not to record registration of any sale deed in violation of the requirement of Section 12 of the Sindh Building Control Ordinance.

As per learned Additional Advocate-General such directions were issued to arrest the growing tendency in the city whereby builders after obtaining an approved building plan flout it with impunity and either construct additional floors or make alterations within the existing floors which are not in accordance with such approved building plans.

Thereafter, the flats are transferred to the innocent public without obtaining any NOC as per requirement of Section 12 of the Ordinance and the builders thereafter disappear. Consequently, according to the learned AAG, the impugned circular was issued by the Member Board of Revenue, Government of Sindh.

However, he concedes that the said direction should only be confined to newly constructed buildings or those which are under construction and not to open plots of land as well as those buildings which are of old construction and for which sale deeds etc. already exist.

The learned counsel for the KBCA additionally submits that such directions be given for buildings constructed after promulgation of Sindh Building Control Ordinance, 1979, as the concerned officers of the authority have detected a number of violations in existing buildings and unless NOCs are obtained from the Authority, this tendency shall keep on going unchecked.

"We have heard both the learned counsel as well as the learned AAG Prima facie, it appears that both item No. XVII in Rule No 149 of the Sindh Registration Rules, regarding submission of approved building plans from the Karachi Building Control Authority before the registration of sale deeds/ lease deeds/ sub-lease deeds is concerned, as well as the impugned circular, does not take into consideration the provisions of Section 69 of the Registration Act whereby any modification/ amendment to the Registration Rules can only be brought about by the Inspector General Registration and with the concurrence of the Provincial Government which would mean that such amendment is to be issued through proper notification.

Be that as it may, at this stage as orders have already been passed by a learned division bench of this court, we are not inclined to disturb the same. At the moment, therefore, while following such orders we would direct that an NOC from the Karachi Building Control Authority would only be relevant for the purposes of newly constructed buildings and those under construction and not where registration is sought with respect to open pieces of land or those buildings for which sale/ lease/ sub-lease deeds exist and which are of old construction viz. prior to 1979.

These are only interim orders. The matter shall be put up before the same learned bench, which had passed orders in CP Nos. 153/2000 and 1925/2002, after seeking the approval of honourable chief justice.

"It is further directed that as soon as applications are made by the concerned parties as regards NOC, the same shall be issued within one week, if so warranted. Copy of this order shall be sent to the Chief Controller Buildings, Karachi Building Control Authority, for compliance."