KARACHI: Court rules out parking space misuse regularisation
By Shujaat Ali Khan
KARACHI, Nov 29: The conversion or misuse of car parking space cannot be regularised and those who purchase flats and shops built on such spaces do so at their own risk, a division bench of the Sindh High Court ruled on Wednesday.
The bench, which consisted of Justices Mushir Alam and Maqbool Baqar, was hearing a review petition moved by the owners of five flats built on the ground floor of Uzma Apartments, Civil Lines Quarters, Clifton, which was reserved for car parking in the plan submitted to and sanctioned by the Karachi Building Control Authority. The court had ordered the demolition of the unlawfully-constructed flats.
The owners submitted that the demolition order was passed behind their back. They were innocent purchasers and their application for regularisation of the flats under the one-time regularisation scheme of 2004 was pending before the KBCA. This fact was not brought before the court’s notice. There was adequate alternative space available in the complex for a parking lot. Citing a Supreme Court order, their counsel, Gohar Iqbal, submitted that the KBCA was directed to take a decision on the regularisation application of the petitioners within two weeks. They sought an identical order in their favour from the SHC.
After hearing Advocate Shahid Jamil Khan for the KBCA and Advocate Haider Imam Rizvi for the appellant, the bench observed that Section 6 (2) of the Sindh Building Control Ordinance, 1979, ‘provides that no building can be occupied by any person or shall be allowed to be occupied by the builder before the KBCA has issued an occupancy certificate’. An SHC division bench, it noted, had held in a similar case that the plea of bonafide purchasers was not available to owners who occupy a building without ensuring that an occupancy certificate had been issued by the KBCA in respect of it.
The position was upheld by the Supreme Court, which declared in a judgment in 2000, that purchasers who occupy their premises in the absence of occupancy certificate ‘do not acquire a perfect and marketable title’ in the property. The bench pointed out that the position was further reinforced by an amendment to the Karachi Building and Town Planning Regulations, 2002, inserted in 2004. Now no violation can be regularised in respect of a building ‘where parking space has not been provided, shifted or altered or is intended for misuse for other such purposes, until such space is restored to its original purpose’.
Thus even if a regularisation application was pending, the authority could not regularise the violation. At the request of the owners’ counsel, the bench suspended the demolition order for two weeks to enable them to approach the Supreme Court.
SHOPPING MALL: The tenant of a building adjoining Choice Shopping Mall on Abdullah Haroon Road, meanwhile, submitted a statement and photographs to show that a stay order passed by the court was being violated. Perveen Ara, a tenant of Krishna Mansion, has moved a contempt application through Advocate Mahfooz Yar Khan alleging that the builder-developer of the shopping mall has illegally occupied compulsory open space of the mansion. The court had stayed construction after its nazir inspected the site.
The applicant said the area SHO was asked to ensure that no further construction took place but the builder-developer was building the mall post-haste to circumvent the stay order. She said the digging along the open space of Krishna Mansion threatened the mansion’s foundation, besides violating the building rules and the court order. The application is being heard by a division bench comprising Justices Sarmad Jalal Osmany and Sajjad Ali Shah.
TRANSPORTERS’ PLEA: The bench consisting of Justices SJ Osmany and SA Shah, meanwhile, issued notices to the city district government and other respondents for December 5 in a petition by transporters questioning a ban on Quetta-bound buses operating from the Old Sabzimandi, University Road, Gulshan-i-Iqbal.
The transporters submitted through Advocate Gohar Iqbal that while 600 buses carrying passengers from and to the interior of Sindh and up-country were allowed to operate from within the city, they were barred from picking up passengers from anywhere within the city after the construction of a bus terminal at Baldia Town. The ban imposed by the city district government and the court order to enforce it discriminated against the transporters plying their vehicles between Balochistan and Sindh, the counsel contended.
NOTICE TO NAB: Another division bench comprising Justices Rehmat Husain Jafri and Mrs Yasmeen Abbasy issued a notice to the deputy prosecutor-general of the National Accountability Bureau to explain whether an acquittal application moved by an accused before an accountability court under Section 265-K of the Criminal Procedure Code could be dismissed without hearing the defence counsel.
Advocates Ghulam Qadir Jatoi and Minhaj Farooqi submitted that there was no likelihood of conviction of their client, Jan Mohammad, but the accountability court hearing a reference against him dismissed his acquittal plea without hearing them. Jan Mohammad, a former deputy director of the Water and Power Development Authority posted at Guddu Thermal Power Station, has been arraigned for purchasing a purifier for Rs9.5 million while its was available in the open market at a much cheaper price.
His lawyers, however, say that the equipment was bought at a competitive price and that the case was 10 years old. Wapda had conducted an inquiry into the allegation and the inquiry had exonerated Jan Mohammad and 56 others allegedly involved in misuse of funds. The NAB was now indulging in pick and choose and had instituted a criminal reference against five of the exonerated officials, they contended. They alleged that their acquittal application was dismissed by the trial court without hearing their arguments.
