EVERY man strives to possess his own hearth and home, which he builds on land leased to him for 99 years, the terms of the lease being sacrosanct.

In 1990, Mr. Justice Wajihuddin Ahmed of the Sindh High Court handed down a judgment in the matter of Suleman Mala vs. Karachi Building Control Authority (1990 CLC 448). Inter alia, he stated:

“...It is an admitted position that construction activities under the Sindh Building Control Ordinance, 1979, are controlled and governed under an Authority, which, in so far as the city of Karachi is concerned, is known as the Karachi Building Control Authority. Buildings, as a rule, are to be raised on the basis of approved plans. Such plans, [in] principle are to be in consonance with the relevant scheme spreading over a specific area, framed by or under the successive directions of the Karachi Metropolitan Corporation, the Karachi Improvement Trust, the Karachi Development Authority and, finally, the Karachi Building Control Authority, as it is in such order that these powers have from time to time come to vest.

“Each such scheme has its peculiar features and constructions, reconstructions and even modifications or alterations are to be on the basis of approved plans calculated to fit into the requirements of a particular scheme or an area within which the scheme operates or is enforced. Open spaces, covered areas, number of storeys, and even nature or use of constructions may be duly regulated. Property holders within the perimeters of such schemes and even permanent residents come to have either vested rights or, at the very least, some interest in the observance of the necessary features of the relevant scheme. The local authority operating in such areas is obliged to ensure the observance and continuity of such schemes but always subject to law...”.

This clearly clarifies four basic principles in respect of the development, sale and construction of buildings, which has been ignored by successive local governments and authorities of Karachi.

The first is town planning. A local authority initially takes raw/barren land, and develops it taking into account the following factors: (a) land use, i.e residential, commercial, industrial, flat site, or amenity; (b) open spaces to be maintained around a building, the number of such buildings and their heights’; (c) constant with the above, the size of the roads and public utilities such as sewage, electricity, gas, and water and other infrastructural facilities, including parks, playgrounds, schools, hospitals, etc.

The second is the implementation of the town plan — the development of the land by the local authority with the carving out of plots, the laying out of roads, sewage lines, electricity cables, gas lines, all laid out in conjunction with the type of land use for which the scheme was originally framed.

Thirdly comes the disposal of plots. Plots, once developed, are to be leased through auction (or otherwise) to individuals who are aware of the entire town plan of the area and know what kind of construction will be allowed next to the plot that they purchase, and who spend their hard earned money on the basis of representations made by the local authority. In the event that they purchase a plot, they know that the use of their neighbours’ property will be of a certain nature, that the building or buildings (as the number of buildings is specified) constructed will be of a certain height, with specified open spaces.

Stage four is the construction on the plot. This is regulated by a building control authority which, as stated by the learned judge, “must at all times be in consonance with the relevant scheme of the specific area.” The building control authority, being a separate juristic entity, at no time has the authority to change the terms of a lease issued by the local authority, whoever/whatever it may be.

Town planning and building control are basically two very different functions and cannot at any stage overlap. The blurring of the distinction between the two has caused a grey area, thus provoking various authorities to act in excess of their jurisdiction — for instance, the KBCA goes in for town planning which it has no right or authority to do. This leads to the overburdening of the judicial system and clogs the courts with multiple wrangles as to the existence of such rights.

All this confusion causes wastage of limited resources, leads to the stagnation of economic activity and development of the city, and even affects the sanity of citizens who have purchased plots on the basis of the representations of the local authority. Builders misrepresent the construction that is permitted on plots and are willing to pay lacs of rupees to ‘persuade’ the concerned authority to deviate from the original town planning scheme of the area. Third parties are then bluffed by the builders into investing money on the basis of dubious documentation issued by the KBCA.

Where an area has been developed on the basis of a scientific town planning scheme, any deviation in respect of even one aspect, say, change of land use, will have an impact on many other aspects such as sewerage, electricity, gas, water supply, the impact of traffic on the roads, none of which can bear additional loads. The correct solution in the case of a change of land use is for the government to purchase the property from the current owners, replan the scheme, and then sell the plots to the citizens as per the new layout and conditions.

This time-consuming formula has never been acceptable to the successive local authorities and land owners of this city (right now, the CDGK, KPT, ministry of housing and works, seven cantonments, and the government of Sindh). Hence, each authority takes the easy (lucrative?) way out, and amends the town planning conditions, one plot at a time, extracting revenue plot by plot, thus resorting to ‘plot planning’ rather than town planning.

In any democracy worth its name, parliament is supreme. It legislates, and all authorities act within the power delegated by parliament when implementing the law. Any act in excess is ultra vires and consequently null and void. Not so in the form of democracy as sporadically practised in Pakistan.

On March 3 1979, the Sindh Building Control Ordinance, 1979 was promulgated to regulate building control within Karachi. It had no power to do town planning. In 2002, the Karachi Building Control Authority [KBCA] promulgated the Karachi Building Control and Town Planning Regulations which allegedly permits it to take on both building control and town planning responsibilities, the latter being rightfully within the ambit of various local governments.

The authority performs its dual role, firstly, by changing the land use from one category to another, from residential to commercial or flat site, and so on, and, secondly, by changing conditions in respect of the open spaces to be maintained, and height/bulk of a building, and so forth.

Not satisfied with this, the KBCA thereafter framed Regulation 25 of a new Karachi Building Control and Town Planning Regulations 2002 which divides the type of construction activity into five categories — residential (25-2), commercial (25-3), flat site (25-4), industrial (25-5), amenity (25-6).

Regulation 25-2 reads : “Residential. 25-2.1 Building Bulk Standards. All residential houses/bungalows shall observe the following standards.”

Regulation 25-2.2.2. [prior to the amendment dated August 5, 2005] “Height of all houses/bungalows measured from plinth level ... shall not exceed 35ft.(10.66m) or three stories whichever is less (except for category H - plots of 4000 sq.yds and above where height of 72 ft or six stories whichever is less will prevail).”

This particular section was being misinterpreted by KBCA to approve of the construction of multistoreyed flats. When there are two separate categories, residential (25-2) and flat sites (25-4), one must necessarily exclude the other. And when the words of the regulations state “all residential houses and bungalows,” the fact that a plan for multistoreyed flats is issued under this regulation is dishonest in the extreme. Even if by a stretch of the imagination and legal ingenuity, a flat is considered a house/bungalow, the fact that regulation 25-2.2.2 is additionally ignored is even more dishonest.

During the regime of chief controller of buildings A. S. Nasir hundreds of multistoreyed flat projects were unlawfully approved on house/bungalow plots, many of which are still under construction. His successor, acting chief controller Rauf Siddiqui, issued a circular clarifying that where a plan is approved for a flat under regulation 25-2 regulation 25-2.2.2 must be applied, thereby restricting the height of the building.

The Nazim of the city (the notified ‘authority’ under the 1979 Ordinance and thus responsible for the implementation of building laws), currently residing at the old KMC building, when going up to his office each day passes by the foundation stone of the Karachi Municipality Building on which is engraved”. The Consecration ceremony of this Building was performed on 7 January 1932 in presence of the citizens of Karachi. May all be blessed in the city.”

We are indeed very blessed.

E-mail: arfc@cyber.net.pk