April 05, 2008	Saturday	Rabi-ul-Awwal 27, 1429

KARACHI, April 4: The Sindh High Court on Friday invalidated bifurcation of a residential plot and commercialisation of the sub-divided plot for construction of an apartment block with shops on the ground floor.

Two residents of Mohammad Ali Jauhar Cooperative Housing Society, Zahid Saeed and Humayun Qureshi, moved the high court against sub-division of a 2000-square-yard plot (44/A) in their vicinity into a 1444-square-yard residential plot numbered 44/A and a 555-square-yard renumbered 44/A-1. The smaller portion was commercialised by the owner-builders, Mohammad Siddique Mohammad Awais, and a ground-plus-nine residential-cum-commercial plaza named “Sana Heights” was raised on it. The petitioners said the sub-division and conversion created a nuisance and were an infringement of their easement rights.

The petition was disposed of by a division bench in March 2007 with the observation that “conversion of a sub-divided residential plot into commercial premises without due observance of the provisions of the Karachi Building and Town Planning Regulations, 1979, is against law and cannot be sustained. Consequently, any super-structure built on illegal foundation cannot be sustained. Resultantly, the petition is allowed.”

The respondent builders challenged the short order before the Supreme Court but since the detailed judgment was not available even after a lapse of 10 months, the Supreme Court remanded the case to the high court for rehearing. The builders submitted that the sub-plot was commercialised by the federal ministry of housing and works in 1991. All legal formalities, including the permission of the master plan and environmental control department of (the since defunct) Karachi Development Authority and subsequently of the city district government and sanction of the Karachi Building Control Authority, were duly completed. The petitioners, the respondents said, had no case as all the requisite no-objection certificates were obtained from the various authorities.

The respondents also said the plot was got bifurcated by the original lessee, Ms Farhat Salim, in 1979 and she sold the sub-divided residential and commercial plots in 1992 to M/s Younus Brothers, who sold it to them. They were raising construction on the commercialised plot in accordance with a KBCA-approved plan.

On remand from the Supreme Court, the petition was heard by a division bench consisting of Justices Yasmin Abbasy and Furrukh Zia G. Shaikh. Representing the petitioners, Advocate Iqbal Haider said that the plot was situated in an exclusively residential area. According to the terms of lease, the plot was residential and indivisible. The lessee or any subsequent purchaser could built only a double-storey residential bungalow on it. All authorities that sanctioned sub-division and conversion acted in violation of the law and rules and regulations. No objections were invited from the general public.

Allowing the petition, the bench pointed out that the KBTR prescribed the size and manner of “display advertisements” to be put up for inviting public objections and “classified ads” claimed to have been published by the respondents in two newspapers could not be said to have fulfilled the requirement. When the law requires something to be done in a particular manner, it has to be done in that specific manner and not otherwise. Referring to the condition of prior permission for sub-division, the bench remarked that the subsequent sanction amounted to violation of the contract of lease.

The bench also noted contravention of the terms of the no-objection certificate granted by the KDA’s master plan and environmental control department. The final plan covered the 10-foot compulsory open space required to be left uncovered. The government functionaries exceeded their powers by granting approvals in violation of the law and rules.

The petitioners had sought demolition of the illegal structure but the respondents have moved for suspension of the division bench’s judgment. The bench has issued notices in the respondents’ application without an interim injunction. Advocate Iqbal Haider appeared for the petitioners, Advocate Mushtaq A. Memon for the respondents, Advocate Amir Aziz Khan for the M. A. Jauhar Housing Society and Advocate Shahid Jamil Khan for the KBCA.