KARACHI: Bagh Ibne Qasim structure being razed eight years after court order
By Hasan Mansoor
KARACHI, June 18: The City District Government Karachi (CDGK) has started the demolition of the sole commercial structure in Bagh Ibne Qasim eight years after the Supreme Court (SC) handed down a verdict in this regard, Dawn has learnt.
“We have started demolishing the five-storey Costa Livina after senior law experts recommended it in the light of the SC’s 1999 verdict,” said a senior CDGK official.
CDGK’s legal department informed City Nazim Mustafa Kamal in writing that the SC had passed a detailed order in the case (1999 SCMR 2883), in which the builders had been asked to submit the plans for a smaller part of the plot where a commercial structure had been raised. The builders failed to meet the 60-day deadline. Eight years then passed and no action was taken against the building.
Recently, however, after the enormous park was developed around the Jehangir Kothari Parade, the authorities decided to seek some advice from senior law experts. The matter was referred to former Chief Justice Saiduzzaman Siddiqui, who sent his recommendations to the city nazim last month. Referring to these, the CDGK legal department recommended that the city government could take action against the structure.
The dispute in the case relates to 132 acres of land earmarked for the Bagh Ibne Qasim public park in the housing scheme framed by the KPT in 1956. Upon the creation of the KDA under KDA Order 1957, the then Government of West Pakistan notified this scheme as KDA Scheme No 5 on October 30, 1964.
According to instructions issued by the government, the 132-acre site reserved for the park was to contain amusement parks, recreational and refreshment facilities, shops and gardens. On April 1, 1976, the scheme was revised. A plot was carved out of the park area and reserved for the construction of a revolving restaurant allotted to M/s Marvi Investment on July 19, 1976, followed by a formal allotment letter issued on April 8, 1990.
About five weeks after the issuance of the allotment order, M/s Marvi Investment transferred the plot to M/s Pearl Builders (Pvt) Ltd on May 12, 1990. Subsequently, the building plan submitted by Pearl Builders was approved by the KBCA on July 19, 1990.
However, through a general order dated August 4, 1990, the Sindh government rescinded all orders granting approval to building plans under section 6 (5) of the SBCO 1979. An appeal filed by Pearl Builders was allowed on the condition that a plot ratio of 1:6 and a mandatory 20-foot set-back on all sides of the proposed building were maintained. Pearl Builders submitted a revised plan and while this was under consideration, public quarters raised objections against the proposed construction.
Despite the objections of an appellant in the case, and adverse note taken by some KDA officials, the building plans for Costa Livina were approved on July 4, 1992.
Following public protest, however, the then chief minister constituted a committee to make recommendations after an in-depth study of the project. The committee found that the approval for the 15-storey building violated the layout plan originally sanctioned, and further that a high-rise building could not be built on an amenity plot reserved for park.
Nevertheless, the builders started construction, after which a writ petition was filed in the Sindh High Court. This was dismissed on September 25, 1995, on the grounds that the allotment of the plot for the construction of a revolving restaurant amounted to the conversion of the use of the plot to commercial purposes and, therefore the petitioners had no locus standi to object to the construction of a multi-storey building.
Following an appeal, the Supreme Court reversed the order of the Sindh High Court and held that the carving out of a plot measuring 4851.61 square yards in the area reserved for a park for the construction of a revolving restaurant was (a) in furtherance of the scheme of the park as it intended to attract the visitors; (b) the Karachi Building and Town Planning Regulations 1979 have statutory force; and (c) para-3 of schedule ‘D’ to the Regulations prohibited the change of land use or conversion of amenity, utility and other plots without following the procedure of inviting public objections through newspapers and hearing them as prescribed under the Regulations.
In the final analysis, the Supreme Court found that the construction plans submitted by Pearl Builders showed that it intended to construct a total covered area of 261659.26 sq.ft, of which only 2827.35 sq.ft were to be used for revolving restaurant and 3871.35 sq.ft for the mechanical room for the proposed restaurant. This worked out to only 2.6 per cent of the total proposed construction, thus defeating the object of carving out a plot for a revolving restaurant within the park area.
According to Mr Siddiqui, the court then held that the plot carved out and allotted for the construction of a revolving restaurant could only be used for these purposes and not for a high-rise commercial / residential building. He added that the CDGK or the Building Control Authority could therefore allow only the construction of a revolving restaurant on the plot allotted to Marvi Investment and purchased by Pearl Builders.
When approached by Dawn, City Nazim Syed Mustafa Kamal commented that, “the land belongs to the people of Karachi and we’ll use it to beautify the park and ensure more fun for our people.”
