The Court held that the Constitution and relevant laws assign responsibility for regulating buildings
ISLAMABAD:
The Federal Constitutional Court (FCC) has withdrawn the Supreme Court’s blanket directions that imposed restrictions on land conversion in Karachi and ordered the demolition of illegal constructions, including the orders that led to the demolition of the Nasla Tower.
She ruled that the regulation of buildings and the enforcement of construction laws fell primarily within the jurisdiction of the provincial government rather than the judiciary.
In a 10-page written judgment written by Justice Aamer Farooq, the court held that the Constitution and relevant laws vest the responsibility of regulating buildings and taking action against illegal constructions on the Sindh Building Control Authority (SBCA) and the Sindh government.
He said officials of the SBCA and the provincial government are constitutionally and legally responsible for enforcing construction laws and must discharge their duties in accordance with the law.
The court observed that the Constitution and relevant laws require the SBCA and the Sindh government to take action against illegal constructions, adding that the competent authorities are required to fulfill their constitutional and legal obligations.
According to the judgment, the matter was brought before the Supreme Court as an appeal regarding an illegally constructed building in Lyari. However, the scope of the procedure later expanded to the entire Lyari region and later to the entire city of Karachi.
The SC had also issued general directions for demolition of illegal marriage halls, shopping malls, markets and other structures built in violation of the Karachi Master Plan. These general directions included the orders issued in 2018 and 2019 which ultimately resulted in the demolition of the Nasla Tower.
The FCC observed that, in hearing the appeal, the Supreme Court effectively exercised powers similar to suo motu jurisdiction without fulfilling the constitutional requirements governing such proceedings, amounting to an excess of judicial authority.
The judgment specifies that the courts must remain limited to the disputes submitted to them and avoid any unnecessary intervention in matters falling within the competence of the executive authorities.
The court held that demolition orders cannot be issued solely based on the reports submitted by the SCBA. He stressed that every citizen has the right to due process and a fair trial before any adverse action affecting their rights is taken, observing that due process of law is a mandatory constitutional requirement in all cases.
He clarified that his decision does not legalize illegal constructions and does not prevent measures against illegal constructions. On the contrary, he said that the Constitution and existing laws already provide a comprehensive legal framework to combat illegal constructions, and this framework must be followed by the relevant authorities.
The judgment notes that there is already an effective legal mechanism and competent institutions to combat illegal constructions in Karachi. He added that the Sindh government and concerned authorities are constitutionally and legally bound to monitor illegal constructions and take action in accordance with law.
The court further noted that according to the parties involved, the initial litigation relating to the illegally constructed building in Lyari had become infructuous. Therefore, the FCC withdrew all general directions previously issued by the Supreme Court in this case and ruled on the appeal.
In a supplementary note, Justice Syed Arshad Hussain Shah observed that protection of fundamental rights of citizens and public facilities is the primary responsibility of the state.
He stressed that parks, playgrounds, green belts, footpaths, beaches and other public spaces must be protected from illegal encroachments and illegal alterations.
