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Official Citation: 2024 SHC 128
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-02-06
Parties: Syed Mohsin Mahzar vs Province of Sindh & Others
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-02-06, officially reported as 2024 SHC 128. In this matter between Syed Mohsin Mahzar and Province of Sindh & Others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024SHC128
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Muhammad Abdur Rahman Title: Syed Mohsin Mahzar vs Province of Sindh & Others Case No.: C.P. No. D-5549 of 2022 & C.P. No. D-6026 of 2023 Date of Judgment:2024-02-06 Reported As: 2024 SHC 128 Result: Petition Disposed of
Judgment ORDER MOHAMMAD ABDUR RAHMAN J. These Petitions have each been maintained under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in respect of the construction on Plot No. B- 10 Block-16, KDA Scheme No.36, Gulistan-e-Jauhar, Karachi (hereinafter referred to as the "Said Property") and on which has admittedly been constructed a Ground + 3 storey building. A. The Petitions 2. C.P. No. D-5549 of 2022 has been maintained by the Petitioner challenging the construction on the Said Property as having been constructed without obtaining an approval as mandated under Sub-Section (1) of Section 6 of the Sindh Building Control Ordinance, 1979 (hereinafter referred to as the "SBCO,1979"). On 23 September 2022 directions were given in this Petition to the Sindh Building Control Authority (hereinafter referred to as the "SBCA") clarifying that if there was any illegality in the construction on the Said Property that it should be demolished. The SBCA had filed their comments stating that they had issued a notice under section 7-A of the SBCO, 1979 stating that no approval had in fact been accorded by the SBCA, for the construction on the Said Property, under Sub-Section (1) of Section 6 of the SBCO, 1979 and that the construction on the Said Property having not been sanctioned by the SBCA was illegal and was liable to be demolished. 3. CP No. D-6036 of 2023 has been maintained by the owner of the Said Property contending that an approval for a Ground + 01 storey building for a residential bungalow was submitted to the SBCA on 25 August 2021. A copy of the application for approval and a payment of Rs.69,640/- has been appended to that Petition. As there was an inconsistency on account of these documents that had been submitted by the Petitioner in CP No. D-6036 of 2023 and the submission that had been made by the SBCA in C.P. No. D-5549 of 2022 regarding the approval, we had modified our
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order dated 23 September 2022 and restrained the demolition of the structure on the Said Property until the status of the application was determined. 4. The SBCA have now filed a report stating that an approval was in fact applied for by the Petitioner in CP No.D-6036 of 2023 and where after a letter was issued by the SBCA to the Karachi Development Authority (hereinafter referred to as the "KDA") to verify the title of the owner to the Said Property and against which a reply was received from the KDA ,not denying the title of the Petitioner in CP No.D-6036 of 2023 to the Said Property, but by stating that there were certain dues on the Said Property that were outstanding in their record. The SBCA has on this basis therefore contended before us that while the plan that had been submitted by the Petitioner in C.P. No. D- 5549 of 2022 could have been "deemed" approved under the provisions of Regulation 3-2.6 of the Karachi Building & Town Planning Regulations, 2002 (hereinafter referred to as the "KB&TPR, 2002") as there were amounts owing to the KDA, therefore no approval could be "deemed" to have been accorded by the SBCA to the Plan submitted in respect of the construction on the Said Property. 5. SBCA have further contended that even if the sanction is to be considered as having been "deemed" to have been made under the provision of Regulation 3-2.6 of the KB&TPR, 2002, then as per Regulation 3-2.6.2 of the KB&TPR,2002 such an approval cannot be considered as having been made as the structure has been constructed in violation of the provisions of the KB&TPR,2002 i.e. a Ground + 3 storey structure has been constructed as against the "deemed" approval of Ground + One Storey structure. They finally contended that the owner of the said property is liable to rectify the building works under Regulation 3-1.4 of the KB&TPR,2002 to bring it in compliance with the provisions of the KB&TPR,2002 before any further decision on the Petitioner's application can be made. 6. The Counsel for the Petitioner in CP No.D-6026 of 2023 has conversely contended that the deviations are regularisable and the same may be considered by the SBCA under the mandate conferred under clause (c) of Regulation 3-2.20 of the KB&TPR, 2002. Conversely, Counsel for the Petitioner in CP No.D-5549 of 2022 has contended that the deviations in the construction are clearly not regularisable and are liable to be demolished. 7. We have heard Mr. Ali Muhammad Tahir, Mr. Shahzeb Akhter and Mr. Ghulam Akbar Lashari, advocates appearing for the parties and have perused the record. B. Approval And Deemed Approvals 8. The authority conferred on the SBCA to sanction an approval for a construction is contained in Sub-Section (1) of Section 6 of the SBCO, 1979 and which inter alia states that permission for construction is to be taken "before" any construction is commenced. Where however an application is made for an approval but is not "processed" by the SBCA, Regulation 3.2.6 of the KB&TPR,2002 provides that: "... 3-2.6. Period of Approval . 3-2.6.1 (a) After the receipt of an application for approval of building plan the Authority shall examine and shall approve or reject within 60 days and from the date of issuing letter for re- verification of title document required after issuing letter for re-verification of title document required from concerned Authority /Lessor along with compliance of observation issued by Authority. In case reply has not been received from concerned Authority /Lessor within ten (10) days. The case may be considered deemed to be re-verified. Appropriate action shall be taken against the concerned officer under E&D rules if the case is not processed within the period specified above. (b) In the case of refusal/ rejection explicit objection will be communicated in writing quoting provision of the regulations. If the applicant complies with the specific objections communicated earlier within a period of one year no further scrutiny fee shall be charged.
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(c) Upon approval of the submission construction should be commenced within a period of one year failing which renewal of permission to construct shall be obtained from the Authority. 3-2.6.2. If no order is passed on an application within 60 calendar days for category I & II and 90 days for category Ill & IV of table 3.1 of its receipt, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of these Regulations or the Master Plan Department or sanctioned Site Development Scheme, if any, and after giving notice to the Authority, the person may proceed to carry out the said building works at any time within one {1) year starting from the date of submission provided the title of land is clear from all disputes and objections." (i) The Time Period for Examination, Approval or Rejection of a Plan 9. Under clause (a) of Regulation 3-2.6 of the of the KB&TPR, 2002, it is incumbent on the SBCA to first examine and thereafter to "approve" or "reject" an application for a sanction of a plan within 60 days. We are of the opinion that this provision is to be treated as mandatory as consequences[1] are specified in that Regulation if the plan is "not processed" within the time frame mentioned and which consequences are contained in the latter part of that regulation and which read as under: "... Appropriate action shall be taken against the concerned officer under E&D rules if the case is not processed within the period specified above." As such if the plan is neither approved nor is rejected through a speaking order in terms of Clause (b) of Regulation 3-2.6 of the KB&TPR,2002 within the time frame provided for then, mandatorily, action must be taken by the SBCA as against any and all of its errant officers. (ii) Verification as to Title of Property 10. The time period for the approval or the rejection having been dealt with, the rest of the regulation creates some complexity on account of the incompressible language that is used in that Regulation. While, it is apparent that the regulation attempts to seek confirmation from the lessor of the land e.g. the KDA, the Karachi Municipal Corporation, the Province of Sindh etc. to confirm the ownership to the property on which the construction is sought to made, and rightly so as to do otherwise would result in the SBCA have participated in a trespass to that property by sanctioning such an approval, regrettably, the language of the regulation is indecipherable the offending portion of which reads as under: " ... and from the date of issuing letter for re-verification of title document required after issuing letter for re-verification of title document required from concerned Authority /Lessor along with compliance of observation issued by Authority.." What is however understood is that in the event that the verification of the title is not received "from the concerned Authority /Lessor within ten (10) days, title may be deemed to have been "reverified." 11. We are of the opinion that such a "deemed" verification of title as has been given by the SBCA regarding the ownership of the Said Property is clearly in excess of the jurisdiction of the SBCA as no such power is conferred on the SBCA under its constituting statute i.e. the SBCO, 1979 and such portion of the regulation in terms of Section 21A of the SBCO, 1979 is therefore inconsistent with the provisions of that statute and is void. Nowhere, in that statute does the SBCA have the authority to determine a person's title to a property on which an approval for construction is being sought and as such the SBCA lacks the jurisdiction to determine title to property let alone to "deem" such a determination of title. That being said, we are equally clear that the SBCA, as an administrative measure must mandatorily inform itself as to the ownership to a property for which sanction is being sought as to do otherwise would be to sanction a trespass to a property. Clearly, once such a letter is issued, the lessor of the property would be mandatorily required to confirm such ownership, post haste, as to do otherwise would to our mind violate the fundamental right of the owner of the
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property as guaranteed under Sub-Article 1 of Article 24 of the Constitution of the Islamic Republic of Pakistan, 1973 and which omission on the part of the lessor, having held up the application for construction, would amount to "depriving" a person to deal with his property in accordance with law. 12. We note that, as per the SBCA, they had issued a letter to the KDA to inform themselves as to the title of the Petitioner in CP No.D-6026 of 2023 to the Said Property and while objections had been raised regarding certain amounts that were purportedly due by the owner of the Said Property to the KDA, there has been no objection that has apparently been made by the KDA as to the title of the Petitioner in CP No.D-6026 of 2023 to the Said Property. While, the SBCA has contended before us that on account of the observation made by the KDA they are unable to process the approval for the sanction of the construction we cannot agree with such a contention. There is no provision in either the SBCO, 1979 or the KB&TPR,2002 which permits the SBCA to refuse to sanction an approval under Sub-Section (1) of Section 6 of the SBCO, 1979 on the grounds that there are amounts owed by the owner of a property to a lessor and as such the failure on the party of the SBCA not to process the application for construction on such a grounds would be in violation of its obligation to process such an approval under that section. If the lessor wishes to recover any such amount it can do so under the dispensation given to it in its enabling statute or in terms of the obligations under the lease issued by them, but clearly the lessor cannot affect such a recovery indirectly through the SBCA by restraining the sanction of an approval under Sub-Section (1) of Section 6 of the SBCO, 1979. The objection that has therefore been raised by the SBCA to refuse to process the application of the Petitioner in CP No.D-6026 of 2023 for construction on the Said Property on account of there being amounts owed by the owner of the Said Property to the lessor is therefore not sustainable and the SBCA is directed to process all applications made for construction as long as they have informed themselves as to the title of the Said Property has been verified by the lessor. (iii) Deemed Approval of Construction 13. Under Regulation 3-2.6.2 of the KB&TPR, 2002, in the event that an application is submitted by an owner of a property and no order is passed by the SBCA on that application "within 60 calendar days for a category I & II and 90 days for category Ill & IV of table 3.1", the plan that has been submitted shall be "deemed to have been sanctioned to the extent to which it does not contravene the provisions of these Regulations or the Master Plan Department or sanctioned Site Development Scheme." 14. In the case of the Petitioner in CP No.D-6026 of 2023, admittedly a plan has been submitted on 25 August 2021 and even if the construction is of the nature warranting the larger period of 90 days to have elapsed, since that period has also elapsed the ground plus one storey approval applied for by the owner of the Said Property would necessarily be deemed to have been approved under Regulation 3-2.6.2 of the KB&TPR, 2002, unless the SBCA through a speaking order can demonstrate as to whether the construction on the Said Property, as identified in the plan submitted by the Petitioner in CP No.D-6026 of 2023, does or does not violate: (a) any provisions of the Karachi Building and Town Planning Regulations 2002, or (b) the Master plan of the area within which the Said Property is located, or (c) the Site Development Scheme within which the Said Property is located 15. Clearly, in the event that the SBCA concludes that the plan submitted for the construction on the Said Property does not violate any of the abovementioned factors, then the plan must be "deemed" to have been sanctioned under Sub-Section (1) of Section 6 of the Sindh Building Control Ordinance, 1979 for authorising the construction as per that plan and the applicant would be at liberty to commence construction within one year from the date when the application was submitted. We would add, that there being no consequences specified in Regulation 3-2.6.2 of the
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KB&TPR,2002 as to the status of the approval if construction is not commenced within the time period specified in that regulation, would to our mind lead to the conclusion that the time period specified was in fact directory and not mandatory and the applicant could even commence construction after the period of one year but nevertheless within a reasonable period.[2] 16. Conversely, in the event that the plan submitted for construction does violate any of the abovementioned factors or if the title of the owner of the land is not clear from "all disputes" and "objections", then the plan cannot be deemed to have been approved and must be considered as having been rejected and the construction on the Said Property would be liable to be demolished. Regarding the title of the owner of the land being required to being clear from "all disputes" and "objections", while a dispute as to title would be quite clearly ascertainable on the basis of rival or concurrent claims as to ownership we would also consider the expression "objections" to also be as towards the title of the owner of the property and not as to the nature of the construction that is proposed to being raised on the property. 17. Finally, we are at pains to clarify, that the "deemed" approval of the plan does not have any connection with the construction that exists on the Said Property and which would have to be examined independently under other provisions of the KB&TPR,2002 and which have been clarified hereinunder. Needless to say, if the plan is found to be in conformity with the abovementioned factors, then the Petitioner in CP No. D-6026 of 2023 would have the right to construct a building on the Said Property in accordance with that plan. C. Alteration And Revised Plans 18. We have been informed that the plan that was submitted by the Petitioner in CP No. D-6026 of 2023 was for a ground plus one storey construction for a bungalow while the construction that exists on the site is a ground plus three storey construction for apartments. In this regard, it would be incumbent to refer to the provisions of Regulation 3.2.4 and 3.2.5 of the KB&TPR, 2002 and which read as under: "... 3-2.4. Alteration of Design In case of category-1 category-II and category-IIl Buildings (a) If the Owner/ Professional intends to alter the design After grant of approval, such that there is no increase in floor area, change of open space/s or increase in height of buildings, no further submission or permission shall be required provided that the proposed changes do not violate any of the provisions of these Regulations. (b) In the event that proposed alteration/s after grant of approval, involves increase in floor area and/or change in open space/s and/or increase in height of building, provided that the proposed changes do not violate any of the provisions of these Regulations, the Owner/ Professional shall be required to submit a revised submission plan. However during the period of processing of revised plan by the authority construction may continue. (c) In case of category-IV building If at any time after grant of approval the Owner/Professional intends to alter the design, the Owner/ Professional shall be required to submit a revised submission plan During the period of processing of revised plan by the authority, Construction may allow. 3-2.5. Revised/Amendment of Plan - In public sale buildings deviation in internal layouts shall not be allowed during the construction stage. No structural deviations or deviations in the external envelope of the building shall be permitted. The owner shall be required to submit a revised plan for approval before proceeding with the construction of such structural or external envelope changes." As is apparent, in the event that the construction is considered by the SBCA to come within the scope of a category-1 category-II or category-IIl construction, as identified in Table 3.1, then:
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(i) under clause (a) of Regulation 3.2.4 of the KB&TPR, 2002, after a plan was approved, which we consider could include a plan that is deemed to have been approved under Regulation 3.2.6 of the KB&TPR 2002, then the plan can be altered if there is: (a) no increase in floor area, (b) no change in open spaces, or (c) no increase in the height of building. without the need for a revised plan being submitted unless the proposed changes violate the provisions of the KB&TPR, 2002 and in which case an approval, if possible, for the regularisation of the construction which violate the provisions of the KB&TPR 2002; (ii) under clause (b) of Regulation 3.2.4 of the KB&TPR, 2002 if an alteration was sought after grant of approval or a deemed approval under Regulation 3.2.6 of the KB&TPR, 2002 which involved either: (a) an increase in floor area, or (b) a change in open spaces, or (c) an increase in height of building, then, in the event that the proposed alteration did not violate any of the provisions of the KB&TPR,2002, a revised plan would be required to be submitted for approval and which would be considered at the time of the issuance of a completion plan, but such a deviation, as it does not violate the provisions of the KB&TPR,2002 would not necessitate the construction being stopped. (iii) In the event that the construction that is being carried out relates to a category-IV building as identified in Table 3.1 then, if there is an alteration to the design, a "revised" plan would be required to be submitted. It is interesting to note that the language of clause (c) of Regulation 3.2.4 of the KB&TPR,2002 is at variance with the language of clause (b) of Regulation 3.2.4 of the KB&TPR,2002 in as much as while clause (b) of Regulation 3.2.4 of the KB&TPR,2002 permits an alteration to made to the plan which does not violate the provisions of the KB&TPR,2002, clause (c) of Regulation 3.2.4 of the KB&TPR,2002 is silent as to whether the alteration that is being sought through the revised plan has to conform with the provisions of the KB&TPR,2002 or not. "... No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted No Objection Certificate for the construction thereof on payment of such fee as may be prescribed. ..." The expression "prescribed" is defined in sub-section (l) of Section 3 of the SBCO, 1979 and which stipulates that: "prescribed" means prescribed by rules or regulations made under this Ordinance;" If one is to consider the meaning of the expression "prescribed" as used in Sub-Section (1) of Section 6 of the SBCO, 1979 the only interpretation that can be given to that Section is that a construction of a building on a plot, which comes within the jurisdiction of the SBCA, cannot be commenced unless there is a plan that was approved, in accordance with Rules framed under Section 21 or in accordance with regulations framed under Section 21A of the SBCO, 1979 and which for Karachi are the KB&TPR, 2002. Applying such an interpretation to clause (c) of Regulation 3.2.4 of the KB&TPR 2002, if an alteration of a plan is being sought, then clearly an "alteration" through a revised plan, as to be contrasted with a "regularisation", must come within the provisions of the KB&TPR 2002. Any contrary interpretation could only be that where a revised plan is submitted under clause (c) of Regulation 3.2.4 of the KB&TPR, 2002 then the SBCA would have the power to sanction such a revised plan in excess of the provisions of the KB&TPR, 2002 and which to our mind would in fact be seeking a "regularisation" of a deviation under clause (c) of Regulation 3.2.20 of the Karachi Building and Town Planning Regulations, 2002 and would not amount to an "alteration" and would in fact amount to a "regularisation". The only way to reconcile these two provisions would be to either read into clause (c) of Regulation 3.2.4 of the KB&TPR, 2002 by inserting the words "provided that
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the proposed changes do not violate any of the provisions of these Regulations" between the words "design" and "the" or to "read in" to that Regulation so as to bring that regulation in conformity with the Sub-Section (1) of Section 6 of the SBCO, 1979.[3] In the circumstances rather than to hold that the provisions of clause (c) of Regulation 3.2.4 of the KB&TPR, 2002 are ultra vires of the SBCO, 1979 we consider it appropriate to "read in" the words as mentioned above into that regulation to being into conformity with the provisions of the SBCO,1979 and hence such alteration is applicable as long as the alteration sought does not exceed the provisions of the KB&TPR, 2002. D. Compounding / Regularisation (i) Section 19 of the SBCO, 1979 and the right to Compound an Offence 19. The purported function of the Sindh Building Control Authority to "compound" a construction that has been made deviation in a plan sanctioned under Sub-Section (1) of Section 6 and which function is colloquially referred to as "Regularisation" is often misconstrued as being found in Section 19 of the SBCO, 1979 and which as originally drafted read as under: "... 19. Penalty. (1) Whoever has contravened any provision of this Ordinance shall be punished with simple imprisonment for a term not exceeding six months or with fine not less than ten thousand rupees, or with both. (2) No court shall take cognizance of an offences under this Ordinance except upon a complaint in writing made by the Authority or any person authorised by it. " These provisions have been amended twice[4] and which at present reads as under: 19. Penalty.- (1) Whoever contravenes any provision of this Ordinance, shall be punished with simple imprisonment for a term not exceeding three years or with fine not less than Fifty thousand rupees or with both and if the offence is a continuing one, further fine not exceeding five hundred rupees for each day after the date of the first commission of the offence. (1-A) The Authority or any person authorized by it in this behalf may compound an offence relating to building works of a building plan which was approved prior to the promulgation of the Sindh Building Control(Amendment) Ordinance, 2001 on payment of the existing composition fee enhanced by fifty percent to three hundred percent for the…
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