KARACHI: KBCA certificate must for owning a flat - SHC
By Our Staff Reporter
KARACHI, Aug 19: A purchaser cannot acquire ownership of a flat, office or shop from a builder or developer in the absence of an occupancy certificate issued by the Karachi Building Control Authority
, the Sindh High Court held on Thursday.
Dismissing six suits and several miscellaneous applications moved by the owners of shops in Trade Tower on Abdullah Haroon Road, Justice Mushir Alam observed that the Sindh Building Control Ordinance was promulgated to curb the growing tendency to raise "unauthorized, illegal, haphazard and mushroom constructions that converted Karachi from a beautiful city into a jungle of concrete structures".
No building could be constructed under the SBCO without approval of its design by the KBCA in the prescribed manner. Nor a building could be offered for sale without the KBCA's approval as required by Section 12 of the ordinance.
Similarly, he ruled, an occupancy certificate is a condition precedent to occupying any premises in any building in terms of Section 6(2) of the SBCO. An allottee or sub-less see should demand the certificate from the builder-developer or obtain the same from the KBCA himself before executing a sub-lease or occupying the premises.
The precondition is in the public interest and is intended to protect the right of the allottee or the prospective buyer. It ensures that the premises being transferred or leased out is constructed in accordance with the approved plan.
The plaintiffs whose cases were dismissed had acquired shops in a project of the Landmark builders and developers on plot 3- CL-5 on Abdullah Haroon Road through registered sub-leases executed on various dates commencing from 1992 to 2003.
According to the approved plan, the builders were allowed to raise a ground-plus-six-floor structure. A basement was also sanctioned for car parking. The parking lot was, however, converted into shops.
The KBCA moved against the builder for sealing and ultimate demolition of the shops but the allottees and sub- lessees approached the court and obtained a stay order. Though the builder-developer was impleaded as a defendant by the purchasers, the construction was completed during the stay period.
Seeking vacation of the stay order and dismissal of the suit, KBCA counsel Shahid Jamil Khan submitted that it was incumbent on the prospective purchasers to obtain occupancy certificates in order to confirm the title of the builder- developer, which was being transferred to them.
The shops were built in violation of the approved plan and even the space provided subsequently for car lift was converted into a mini- market and there was just no room left now for parking within the building.
Among the judgments cited by him was a Supreme Court decision declaring that "without an occupancy certificate from the KBCA, the buyer could not claim to have acquired a perfect and marketable title to the property".
Upholding the arguments, Justice Mushir Alam repelled the plaintiffs' claim that Section 6 (2) of the SBCO was not mandatory but was only directory and no consequences flowed from its violation.
He referred to several SHC judgments holding that where a building had been raised in contravention of its approved plan, the KBCA was well within its powers to demolish it wholly or partially as warranted by the law and rules.
He said an amenity space in the building had unlawfully been put to commercial use and "no right based on a breach or disregard of law can be enforced". The judgment deplored the practice of converting parking facilities into shopping centres and markets, which not only deprived the purchasers and occupants of a facility promised to them at the time of booking but also placed entirely avoidable additional burden on the scarce parking space in the city.
It held the KBCA equally responsible for "the menace" and called for timely action to curb it. It said inspection of under- construction buildings should be carried out at various stages to nip the evil in the bud. It also urged the authority to take action against its corrupt officials "who connive and cooperate with the offending builders".
