KARACHI: SHC upholds ombudsman’s adjudication against MDA
By Our Staff Reporter
KARACHI, May 6: The Sindh High Court upheld on Friday the provincial ombudsman’s adjudication in favour of an allottee in the Malir Development Authority’s low-cost housing project contracted out to a builder and developer. The allottee, Muhammad Ali Khoso, booked a flat in Scheme 25-A, Shah Latif Town, Malir, in June 1997. He paid Rs100,500 at the time of booking and in various instalments subsequently. According to the terms of booking, the allotment was liable to be cancelled at the allottee’s option if he lost interest in the accommodation subject to a deduction of 15 per cent of the amount paid by him.
The project could not be completed within 33 months as stipulated and Khoso sought cancellation of the allotment and refund of the amount. The authority had already allowed cancellation and made refunds without any deduction in a couple of cases and he also sought refund of the total amount paid by him.
The authority declined his request and he approached the provincial ombudsman. The ombudsman ordered refund as requested, holding that it would be discriminatory if deduction was made from the amount paid by one allottee while other allottees placed in a similar situation received their amounts without any deduction.
He also noted that the project was delayed and that under the contract, the allottee could seek cancellation of his allotment.
The ombudsman’s order was challenged by the MDA before the provincial governor, who upheld it and dismissed the appeal. The builder and developer moved a writ petition against the original order and the dismissal of the appeal against it. Contesting the petition, Additional Advocate-General M. Ahmed Pirzada said the ombudsman’s order was applicable only to one allottee and after its merger in the governor’s order, could not be challenged by the petitioner. The allotment contract provided for cancellation and refund. City government counsel Manzoor Ahmed took the same position and supported the impugned order.
A division bench comprising Justices Ataur Rahman and S. Ali Aslam Jafri disposed of the petition with the observation that the order was confined to refund to one allottee only.
ORDER ON PROBE: On an application moved by the Karachi Building Control Authority, the bench drew the ombudsman’s attention to the SHC orders of September 2004 and April 2005 “so that he may act strictly in accordance with the parameters laid down by the two orders”.
The September 2004 order called for a probe into allegations of maladministration in the KBCA while the April 2005 order clarified it at the instance of the authority, which complained that the ombudsman’s office had started a roving inquiry under the cover of a probe into maladministration.
It clarified that the probe was not meant to raise academic questions relating to the authority’s legal status and the legal framework it was working under. Such questions could best be answered by a proper appreciation of the law, the court observed.
The KBCA again approached the court complaining that “the public notices issued by the ombudsman inviting complaints/objections to its performance in pursuance of the SHC order of September 2004 were creating hurdles in the discharge of its functions” and that such public notices were not in consonance of the court order. KBCA counsel Shahid Jamil Khan sought a clarification. AAG Ahmed Pirzada waived notice but requested time for a rejoinder.
Adjourning the matter to a date in office, the bench observed that “at this stage”, it would simply like to draw the ombudsman’s attention to the two orders so that he could act strictly in accordance with them.
COMMERCIALIZATION: The bench asked the law officer to ascertain whether the provincial government had issued a notification for commercialization of certain areas.
The issue came up in the course of proceedings on a petition moved by the owner of a plot in Sindhi Muslim Housing Society on Shahrah-i-Faisal.
The petitioner owner claimed that his plot stood commercialized by virtue of decision taken by the provincial government to commercialize a number of areas but the city district government had asked him to move an application and pay the charges. CDGK counsel Manzoor Ahmed submitted that there was no formal decision on wholesale commercialization of city roads and areas.
The declaration only existed in the air and there was no notification in the field. As for the petitioner, there was no lease in existence in his favour. The bench asked the AAG to find out whether any notification was issued and inform the court on May 17.
