KARACHI, Oct 8: The city Nazim or the city government has no jurisdiction to desire scrutiny of demolition cases where the fact of violation has been established, the Sindh High Court declared on Wednesday.
Upholding the power of the Karachi Building Control Authority under the Sindh Building Control Ordinance, 1979, ‘which remains operative as part of the statute book’, a division bench comprising Justices Sabihuddin Ahmed and S. Ali Aslam Jafri observed that only the provincial government has the power to restrain the KBCA under Section 16,17 and 18 of the 1979 ordinance in its appellate jurisdiction. The power had not been transferred or delegated to the city government or the Nazim under the Sindh Local Government Ordinance, 2001.
The KBCA, the court declared, was required by the law to take appropriate action in all cases unless a restraint order in a particular case had been passed by a court of law or by the provincial government in exercise of its appellate jurisdiction.
The legal position was clarified by the bench after hearing Additional Advocate-General Qazi Khalid Ali for the provincial government, Advocate Shahid Jamiluddin Khan for the KBCA and Advocate Manzoor Ahmed for the city government.
The question was involved in a writ petition moved by the Citizens Advice Forum for demolition of the fourth and fifth floors of Al Rahman Plaza, Shah Waliullah Road, Khadda, Lyari Town. The bench directed the KBCA to demolish the structure raised in violation of the law and rules. It also asked the authority to conduct an inquiry into possible collusion between its officials and the builder and developer and submit a report within four months.
Since the floors were occupied by purchasers or tenants, the KBCA requested the city Nazim to detail adequate police force to help it in the ejectment and demolition operation. The Nazim gave no response and the authority informed the court of its inability to comply with its order. Subsequently, the Nazim wrote a letter to the KBCA saying: “ ... Such issues cannot be decided in haste. In future sufficient time should be given to the (city government) committee (constituted to decide demolition matters) for recommendations on the proposed demolition plan, unless you consider a particular case to be taken up expeditiously, in which case I should be taken into confidence”.
Advocate Manzoor Ahmed also placed on record minutes of city government meeting which declared that “ the KBCA functioned under the control of the city government and that any action to demolish a building should be taken only after the city Nazim’s approval”.
Advocate Shahid Jamil argued that the KBCA was a statutory body with perpetual succession and capable of suing and being sued in its own name. Its control and supervision had not been delegated to the Nazim or the city government. AAG Khalid Ali supported the position.
The bench in its order of Wednesday observed: “We do not, at this stage, intend to go into the deeper question of distribution of powers between the provincial government, the city government and the KBCA. ... One aspect of the matter is absolutely clear. It has been repeatedly asserted and there is no cavil with the proposition that the provisions of the Sindh Building Control Ordinance, 1979, remain operative. Therefore, even if it be assumed that all powers available to the provincial government under the ordinance now stand transferred to the city district government, the fact remains that the provincial government itself could exercise only such powers as were available to it under the law (the 1979 ordinance).
“Sections 6 and 7(a) of the ordinance make it obligatory upon the KBCA to enforce the law by demolishing any building wherein violation of Section 6 has taken place. Obviously, the duty is not optional but mandatory and its enforcement has been ensured by the superior courts in a number of cases.”
HR ACTIVIST CASE: The Sindh High Court on Wednesday asked the mother of the detained human rights activist Krishan Sharma to agitate the question of his release in the same writ petition that resulted in his custody with the military authorities being declared illegal.
The new petition moved by Srimati Leelan, the aggrieved mother, for enforcement of a division bench order for his release or transfer of his custody to a civilian agency was accordingly disposed of by a division bench, comprising Justices Shabbir Ahmed and Gulzar Ahmed.
In their order on the previous petition, Justices Zahid Kurban Alavi and Zia Perwez declared that Sharma being a civilian, could not be tried by a military court as proposed by the Pakistan Army’s judge advocate-general branch.
He should be tried for the alleged espionage activity by a special magistrate as required by the Official Secrets Act, the law under which he had been arrested. He should also have been handed over to the civilian authorities after his arrest by a Rangers squad in March, the bench observed.
The petitioners’ counsel, Syed Ghulam Shah and Noor Naz Agha, were advised by the new bench to move an application in the old petition instead of filing an independent new petition.