KARACHI: The Supreme Court has said that additional grounds were raised during the hearing of the review petition against the demolition order of Nasla Tower, but due to limited scope of review jurisdiction the same cannot be permitted.

A three-judge SC bench comprising Chief Justice of Pakistan Gulzar Ahmed, Justice Ijaz Ul Ahsan and Justice Qazi Mohammad Amin Ahmed had dismissed the review petition against the demolition of the 15-storey Nasla Tower on Sept 22 through a short order. The court issued the detailed judgment, authored by Justice Ahsan, on Tuesday.

The apex court observed that it repeatedly asked the petitioner counsel to show any title/registered lease deed about the allotment of area in excess of 780 square yards, but the response was the same as the petitioner again relied upon two letters which did not in any manner had the effect of modifying or substituting lease deed.

The judgement said that during the course of proceedings it was brought to the notice of the court that the building had not only encroached a portion of the service road but the same had also been constructed on an area in excess of what was allotted in the lease deed being 780 square yards.

It further said that the counsel for the petitioners were banking on the two letters issued by an assistant secretary to the chief commissioner-Karachi addressing to the collector and municipal commissioner to allot to the Sindhi Muslim Cooperative Housing Society (SMCHC) 20-foot-wide land strips on both side of the Karachi Malir Road, now called Sharea Faisal, in front of the land allotted to the SMCHC on payment of full market price.

The argument made was that such letters conferred title/leasehold rights of the additional land notwithstanding the fact that the registered lease deed had been executed in favour of the owners relating to allotment of a plot measuring 780 square yards in their favour.

Further, there is no denial of the fact that the original deed was never amended or modified nor a fresh deed covering the additional area claimed by the owners of the tower was executed by the competent authority on the basis of such letters, it added.

The apex court further said: “We came to the conclusion that the same did not in any manner have the effect of modifying or substituting the lease deed executed and registered by the SMCHS in favour of the original allotttees which lease deed constituted the basic and foundational document upon which the subsequent infrastructure of lease and conveyance has been raised.”

It also noted that the counsel for petitioners had raised additional grounds during hearing of the review petition, but owing to limited scope and nature of review jurisdiction and settled principles of law on the subject, raising fresh pleas and treating the review petitions as a rehearing of the matter cannot be permitted.

After hearing the counsel for the petitioner, the order said that the bench was not persuaded to take a different view as it was not convinced that any ground for review of the earlier order was made out.

About the case of allotttees/possessions holder, the bench said, they sail and sink with the owners of the tower in view of the fact that the building in question had been constructed on encroached land and they could not be given any premium on the basis of their assertion that they were bona fide purchasers.

In June, the SC had ordered the demolition of the tower and directed the builders to refund the amount to the registered buyers of residential and commercial units within three months.

The builder filed a review petition through senior counsel Munir A. Malik, who submitted that he was on general adjournment when the matter was heard and decided. The bench had said it had heard another counsel for the petitioner at length during earlier proceedings, but asked Mr Malik to advance his augments.

He had argued that the building had not encroached upon the service road, adding that out of 1,044 square yards, 780 square yards were allotted and the remaining area was also obtained by the petitioner after paying the authorities as 23 other plot owners did.

He contended that the area in excess to allotment land neither belonged to any government authority nor private party and the 780 square yards was also not leased as there was no lease in SMCHC and it had filed a suit in the Sindh High Court in 1980s in this regard and the same was still pending.

Published in Dawn, September 29th, 2021