ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No.D-74 of 2007

1. For Orders on Nazir Report.

2. For Katcha Peshi.

3. For Orders on CMA No.271/07.

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07.03.2008

None present for the Petitioner.

Mr. Shahid Jamiluddin Ahmad Khan, Advocate for Respondent No.1 alongwith DCB Abdul Rehman Ansari.

None present for the Respondents Nos.2 and 3.

Mr. Sarwar Khan, Addl. A.G.

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MUNIB AHMED KHAN, J : The learned counsel for the respondent No.1 submits that the building in question is an old building and the building plan of the same was approved in 1967. He has produced a copy of the same, which is kept on record. He further submits that there is no violation but simple additions and alterations which can be regularized.

In such a situation, when the petitioner and his counsel are not available the petition is disposed of with the direction that subject addition and alteration be assessed and examined and if the same is not regularizeable then action be taken in accordance with the Building Regulations.

In addition, the learned counsel for the respondent No.1 has filed a statement stating therein difficulties and problems faced by the KBCA and pointed out them which include lack of police assistance, non-cooperation on the part of the Government bodies including the departments providing amenities i.e. electric, gas, water, etc. as well as NGOs, hence the task for KBCA has become difficult while persons occupying the building claim that they have purchased the buildings months or years before for consideration and bent upon to take law in their own hands which creates serious law and order situation. He further submits that in the above situation, it will be just and proper that any NGO or person in respect to construction of the buildings may first approach the KBCA within shortest time so that proper and timely action be taken which will serve the purpose and the KBCA will be in a position to enforce the law. In addition, he further submits that there are numerous cases against KBCA pending on Constitutional, Appellate and Original side of this Court as well as in lower Courts and most of DCBs and other staff remain in attendance before the Courts, therefore, their time is being consumed in the Courts and thus they are unable to properly watch the activities going on in their beats. He further submits that if some directions are given to the applicants aggrieved by any order or direction of the KBCA to approach it then the matter would be solved initially at its level and the time of the Court, KBCA as well as of litigants will be saved.

He further submits that previously there was an Oversee Committee constituted U/S. 4-B of SBCO, 1979 which was looking after the affairs of illegal constructions as well as watching the functions of the KBCA in implementations of law, but at the moment there is no Oversee Committee. The learned counsel further submits that in Petition No.856/2002 this Court has passed order in respect of formation of the Oversee Committee, but due to certain factors involved in it including non-cooperation on the part of the different departments that Committee could not perform its work properly. He has also pointed out Section 10-A of SBCO, 1979 with due power to the authority to appoint Committee or Sub-Committee.

Mr. Sarwar Khan, learned AAG, who is present in Court in other matters, submits that the factual position in respect to the constitution of Committee given by Mr.Shahid Jamiluddin is correct and that certain directions can be given for appointment of Committee.

The intention of the KBCA, as expressed by its learned counsel, to solve the problem of the aggrieved parties by taking action against the illegal construction, after being pointed out, is worth appreciable and we think that there is no bar on KBCA to implement its law on its own end rather it is required to do so. In such a situation we think that the complainant may avail the good gesture shown by the KBCA and bring to its knowledge their grievance so the applicants be provided inexpensive remedy.

While hearing the learned counsel, we have noticed that Section 6 of the Ordinance prohibits the construction of any building without approved building plan and if the violation is committed then action U/S. 7-A of the Ordinance is to be taken by the KBCA, but we regret to point out that KBCA has failed to discharge its statutory obligations and in so many cases no action has been taken and the persons and NGOs are approaching this Court and numerous petitions and other litigations, in this regard, have been filed on behalf of NGOs and other aggrieved persons. We have also noticed that in some petitions the petitioners, after filing of the petitions disappear which creates a lot of doubt on the genuineness of the grievance and the petitioners discharge their burden on the shoulder of the Courts to enter into factual enquiries to determine whether there is any violation of Section 6 of the Ordinance or not and in that way factual position is ascertained by appointing Commissioner etc. which, of case, is seldom business of the Court in writ jurisdiction.

In such a situation, we find that keeping in view the past experience of Oversee Committee U/S. 4-B of SBCO, 1979, it will be more proper if the KBCA itself is put to correct its own illegalities or irregularities by resorting to Section 10-A of SBCO, 1979 and appoint Committee or Sub-Committee as may be required consisting of technical experts to control and Oversee the functions of the officials of the authority in a summary way. These Committees besides looking of matter of construction should also see that documents falling within the meaning of public documents be supplied to the applicants without delay on usual cost and that timely action be initiated as the delay creates complications and third party’s involvement.

In view of what has been discussed above, it will be more viable and proper that the grievance of the aggrieved person in respect of the violation of the Building Control be sorted out and settled by the KBCA itself as well as at the level of its Committee or Sub-Committee and even after these exercises no fruitful result is coming out or lack of interest is found on the part of the officials of KBCA or unchecked violation is pointed out, this Court will take serious notice of the same which includes passing of remarks against the officials, who are failing in their duties, and adoption of punitive measures to correct the working of the functionaries of KBCA.

Copy of this order be supplied to Mr. Sarwar Khan, the learned Addl. A.G. and Mr. Shahid Jamiluddin Ahmad Khan, the learned counsel for KBCA for strict compliance of this order.

JUDGE