KARACHI: AG told to help settle KBCA-city govt dispute
By Shujaat Ali Khan
KARACHI, Sept 16: The simmering discord between the city district government and the Karachi Building Control Authority came out in the open on Thursday
and Justice S. Ali Aslam Jaferi of the Sindh High Court asked the advocate-general to appear on Oct 5 to help resolve the legal dispute.
The controversy over the status and functions of the Karachi Building Control Authority under the Sindh Building Control Ordinance, 1979, and the city government powers under the Sindh Local Government Ordinance, 2001, intensified in the course of proceedings in a suit instituted by Oaks Associates against the stoppage of work on their residential-cum-commercial project, Oaks Tower, on Chaudhry Khaliquzzaman Road.
Imp leading the city district government and the KBCA as defendants, the builder and developer complained that they were raising the 18-storeyed structure in accordance with an approved plan sanctioned by the KBCA and a no-objection certificate issued by the Karachi Metropolitan Corporation, the city district government's predecessor. However, subsequent varying notices served on them by the two authorities caused confusion and ultimately the construction of the complex had to be halted in compliance with the latest notice.
The KBCA submitted in its counter-affidavit that the building plan for an 18-storeyed complex was approved by it on the basis of a no-objection certificate issued by the city district government.
The city government's district coordination officer, however, wrote to the KBCA subsequently that the no-objection certificate issued by the KMC was "of doubtful nature" and that sanction be withheld. The KBCA stated that the CDGK's instructions were confusing. Either an NOC was valid or it was void. There was no such thing as "a doubtful NOC".
The authority complained not only of undue interference by the officials in its working but also of harassment of its staff. It said the CDGK had made the smooth functioning of the KBCA well nigh impossible.
It requested the court to restrain the plaintiff builder from raising further construction and from creating third party interest till the issuance of a valid NOC from the lessor (the CDGK) and the Civil Aviation Authority to avoid further complications.
The CDGK relies on a provincial government notification of April 30, issued under the 2001 ordinance to assert that a 16th group of offices called "Building Control Group of Offices" had been created to merge the KBCA into it.
The authority has no independent status save as a group the CDGK. The chief controller of buildings has thus become an executive district officer (EDO) of the CDGK and must work under its hierarchy and carry out its orders. The SLGO of 2001 overrides all other laws, according to the CDGK.
The KBCA, however, said in its counter-affidavit that it was a statutory body established by the SBCO of 1979 with an independent seal and perpetual succession. It was legal entity and could sue and be sued in its name.
The confusion created by the CDGK decisions and local government department notifications had finally been cleared by two judgements of the SHC division benches. According to the judgements, the KBCA was a statutory organization but "the authority" referred to in Section 4 of the SBCO would vest in the city nazim.
According to one judgement, the nazim would, however, have no jurisdiction to undertake scrutiny of cases of violative structures where "the factum of building laws violation had been established in a court of law". The CDGK had "no authority to assume to itself the functions of the authority", it declared.
In an additional counter-affidavit submitted by Advocate Shahid Jamil Khan on behalf of the KBCA on Thursday, the authority denied that it could be merged into CDGK or made its 16th group under the law and the successive SHC verdicts. The counsel cited an SHC judgement to claim that "duty to demolish a building constructed in violation of Section 8 of the SBCO continued to rest with the KBCA".
Advocate Shahid Jamil also questioned the legal validity of the local government department notification of April 30, being relied upon by the CDGK for the KBCA's merger into it as its 16th group. He requested the court to intervene immediately to check the illegal and unjustified interference of the CDGK officials into the KBCA affairs.
The interference amounted to a "wilful defiance" of the SHC judgements that clarified the legal status of the authority, he asserted. Since the matter raised by the KBCA counsel called for interpretation of legal provisions, government notifications and judicial verdicts, Justice Aslam Jaferi issued the advocate- general a notice for Oct 5.
CONTEMPT NOTICE: The Sindh High Court on Thursday issued a contempt notice to a deputy controller of buildings and asked him to execute a surety bond in the sum of Rs50,000 to ensure his personal appearance on every date of hearing.
The order was passed in proceedings on a writ petition challenging illegal construction of a structure on plot number SB-8, Block I, Gulistan-i-Jauhar. A division bench had asked the Karachi Building Control Authority to demolish the building. The builder submitted that it had moved a regularization application under the relevant ordinance.
The court order was altered to provide for regularization if the builder's application was acceptable and for demolition if it was not. The builder's application was found in order by the KBCA, which issued a challan for payment of a hefty fee as a condition precedent to regularization.
The builder requested the KBCA either to reduce the fee or at least stagger the payment of the amount. The KBCA allowed him to pay the fee in three instalments. The builder paid one instalment and was not traceable thereafter. The structure could thus neither be demolished nor regularized in compliance of the court order.
As the petition came up before a division bench, comprising Justices Anwar Zaheer Jamali and Maqbool Baqar, on Thursday, Gulshan Town deputy controller of buildings Munir Ahmed Ghangro appeared in response to a court notice.
He said the violative structure could not be demolished as a challan for regularization fee had already been issued and the fee had been partly paid. Nor could it be regularized in compliance with the court order as the builder seemed to have disappeared, the fee had not been fully paid and the entire process was stuck up.
The KBCA official told the bench that he had issued a number of notices to the builder at his address but the notices were returned unserved. His office was not aware of the builder's whereabouts. No step could be taken in the builder's absence, he said.
The bench observed that the matter reeked of collusion. The official has issued notices to the builder merely as a formality. Apparently, the intention was not to comply with the court order but to circumvent it by 'paperwork'. It termed the official's conduct as a wilful defiance of the court order.
The bench issued Mr Ghangro a contempt notice and asked him to submit a reply by Oct 7 when the petition would again come up for hearing. The alleged contemner was also directed to execute a surety bond for his personal appearance on every subsequent date. The surety amount would be forfeited if he failed to appear.
