KARACHI, July 9: A petition challenging the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 was on Tuesday admitted for hearing by a division bench of the Sindh High Court.

The bench, comprising Justice Sabihuddin Ahmed and Justice Zia Pervez, fixed the matter for Aug 7.

It is the case of the petitioners that the impugned Ordinance is violative of Article 9 of the Constitution since it is tantamount to depriving the citizens of their lives, safety and well-being by permitting “regularization” of buildings which have been built in violation of law.

Among the 12 petitioners are Ardeshir Cowasjee, Qazi Fez Issa, Shehri and others. The respondents are the provincial government, the KBCA and the city district government.

Mr Naeem-ur-Rahman and Qazi Fez Isa wanted the bench to proceed with the matter on Tuesday in view of the urgency and as the matter affected the entire city. But they could not convince it on urgency question. The other side was represented by Mr Mushtaq Memon.

The petitioners had maintained that there was no reason for promulgation of the impugned ordinance by the governor who was operating under the Provisional Constitution Order No.1 of 1999 and the Provisional Constitution (Amendment) Order No.IX of 1999.

The ordinance was, therefore, a violation of the Provisional Constitution No 1 of 1999 which specifically prohibits the interference with the functions of the courts as well as specifically stipulates that fundamental rights continue to be in force, the petitioners maintain.

The petitioners had claimed that at a time when the assembly was dissolved, it was incumbent upon the Respondent No.1 to consult the Oversee Committee of the Respondent No 2.

Not only the provincial government failed to consult this statutory body, but it acted in total contravention of its recommendations of not entertaining any purported regularization of illegal buildings.

In promulgating the impugned Ordinance, the respondents were causing destruction of civil society and the rule of law, the petitioners claimed

“The impugned ordinance abrogates to itself the powers and functions of the courts and tramples upon the judgments of this court as well as of the Supreme Court”, they maintained.

It was their contention that such blatant exercise of purported legislative power to protect and advance the interests of the corrupt had never before been exercised in the legislative history of Pakistan.

They claimed that the impugned Ordinance was ultra vires of the Constitution and as such void ab initio and of no legal effect.

Promulgation of the impugned ordinance was beyond the powers vested in the governor and as such was a nullity in law and of no legal effect.

“The governor can only use his law-making powers as specifically specified, which do not permit him from promulgating laws which have the effect of spreading and or institutionalising corruption, as is sought to be done by the impugned Ordinance and in particular Section 5 thereof,” they claimed.

They have maintained that in promulgating the impugned Ordinance, respondents were promoting a culture of lawlessness and rewarding criminals. There no longer remains any inducement to follow the law because criminals will be encouraged to raise further illegal constructions with the legitimate expectancy that these criminal acts would also be subsequently regularized.

It was their contention that Karachi is situated in a region designated as one of upper-moderate seismic activity and could be subject to tremors in the magnitude region of up to “6” on the scale for recording of earthquakes. The Respondent No 1, through the impugned Ordinance, purports to sanction buildings which were constructed without having regard to such potential seismic activity and thereby exposing citizens to real and acute danger. Such scant regard for public safety borders on criminal neglect. The petitioners have also cited constitutional provisions regarding wellbeing of the people.

They maintain that the notification was to facilitate corruption and the breaking of the building laws, since there would remain no further check on the working of the Respondent No 2 and the floodgates to let in corruption would be opened.

But the KBCA maintained that the ordinance had been promulgated in public interest. The preamble of the said Ordinance provides for the regulation and control of the use of plots and construction of buildings in the province.

The said Ordinance came into force on March 15, and shall remain in force for a period of one year from the date of its commencement.

The KBCA in its written reply had contended that the Ordinance was special law. Its section 3 provided that its provisions shall have effect notwithstanding anything contained in any law for the time-being in force.

Section 5 of the said Ordinance provided that notwithstanding anything contained in any law for the time being in judgment, order or decree of any court, any building constructed before the commencement of said Ordinance, in violation of the provisions of the Ordinance or regulations made thereunder, may be regularised by the authority appointed under the Ordinance on the conditions and on payment of the fees as may be prescribed.

The KBCA has also maintained that the petitioners intend to create un-necessary hurdles and obstacles in the smooth functioning of the KBCA.

It was their claim that the impugned Ordinance had been promulgated in public interest. The preamble of the said Ordinance provides for the regulation and control of the use of plots and construction of buildings in the province.