KARACHI: The Sindh High Court (SHC) has observed that there was a distinction in the applicable law between the lawful use of land and legal construction on it, since permission for change of land use did not dispense with the requirement of obtaining approval for construction, additions or alterations.
A two-judge constitutional bench of the SHC headed by Justice Riazat Ali Sahar also underscored the obligation of public authorities to enforce the law where unauthorised development adversely affects civic and environmental rights.
It further said that a no-objection certificate (NOC) for change of land use without examination of its terms and the relevant building approvals cannot be treated as blanket authorisation for every structural alteration.
The bench made these observations while deciding a petition seeking directions to the Sindh Building Control Authority (SBCA) for demolition of an alleged illegal and unauthorised construction raised in Block D, North Nazimabad.
The petitioner approached the SHC in2017 and asserted that his elder brother was carrying out additional construction, including two showrooms, on a plot measuring 1,000 square yards, contrary to the approved plan, while the NOC for change of land use was conditional and did not authorise construction contrary to the sanctioned building plan.
The SBCA, in its comments, asserted that the building plan for the subject property was originally approved for a ground-plusone-floor residential bungalow in 1974 and that permission for running a restaurant was granted in 1998, whereas an NOC for commercialisation/change of land use was issued by the City District Government Karachi in 2006.
The authorityalsocontendedthatcertain additions and alterations to the existing structure were commenced in 2017 and, as a result, a show-cause notice was issued to the owner of the property, who replied that the property had already been permitted to be used for commercial purposes and therefore, its commercial use could not be termed wholly unauthorised.
The owner of the subject plot in his counteraffidavit argued that the petitioner was his younger brother and they had been involved in disputes concerning the restaurant busi-ness conducted at the subject premises.
He relied upon the NOC for change of land use and payment of conversion charges and submitted that the petitioner had instituted a lawsuit about the ownership and business, and thus, the petition was motivated by personal grievances.
The bench, in its order, said that a nazir had also inspected the property in question and filed a report in 2018, which reflected that there was a ground-plus-one-storey building with shops on the ground floor and a restaurant, which was found to be nonfunctional and in a dilapidated condition.
The nazir further reported that the SBCA officials concerned had produced a proposed layout plan showing a residential bungalow on the 1,000-square-yard plot, but did not produce any approved layout plan authorising commercial use or division of the property into shops, it added.
The bench also observed that Section 6(1) of the Sindh Building Control Ordinance, 1979, as applicable at the relevant time, required approval of the building plan and issuance of the requisite NOC before construction, while Section 7-A empowered the competent authority to order demolition of construction raised in violation of Section 6(1) besides takingother action permissible under the law.
It said, ‘Thus, the scheme of the Ordinance makes a distinction between lawful use of land and lawful construction thereon. Permission for change of land use does not, by itself, dispense with the requirement of obtaining approval for construction, additions or alterations’.
Referring to a 1999 judgement of the Supreme Court (SC), it further said that the power to regularise deviations was not unfettered and could not be exercised to validate violations which materially alter the character of the proposed construction or adversely affect the rights and interests of others. It also emphasised the importance of civic amenities including water, electricity and sewerage while considering conversion of residential properties and approval of construction.
Mentioning another order of the SC handed down in 1994, the SHC observed that the right to life guaranteed under Article 9 of the Constitution was not confined to mere existence but extended to the amenities and conditions necessary for living with dignity, including a healthy environment.
‘These principles underscore the obligation of public authorities to enforce the law where unauthorised development adverselyaffects civic and environmental rights’, it added.
The bench also said that the NOC for change of land use relied upon by the owner of the property cannot, without examination of its terms and the relevant building approvals, be treated as blanket authorisation for every structural alteration carried out at the premises.
As regards the objection concerning previous civil litigation between the parties, the bench said that the same did not appear sufficient to absolve the SBCA of its statutory obligations, while the dispute about the parties’ respective interests in the restaurant business was distinguishable from the question of whether construction has been carried out in accordance with law.
Therefore, it directed the SBCA to perform its statutory functions and determine the legality of the construction on the basis of the relevant record, including the building plan, subsequent approvals, NOC for change of land use and any revised or amended plans.
It also ordered the authority to pass a reasoned order within 60 days and, if any unauthorised construction was established, take appropriate action strictly in accordance with law.