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June 20, 2021

SC directs commissioner to demolish Nasla tower expeditiously

KARACHI: The Supreme Court on Saturday directed commissioner Karachi to remove all persons from the Nasla tower situated at Sindhi Muslim Cooperative Housing Society after taking possession of building and complete the process of demolishing of building as expeditiously as possible.

The direction came in detailed order on application filed by the owners of Nasla tower with a request that SMCHS may declared in possession of the layout plan of blocks A and B of SMCHS and notice be issued to society and KMC for layout plan. The court had also issued notice to the owners of Nasla tower to examine the legality of the tower which had allegedly encroached upon service road.

SC’s three member bench headed by Chief Justice Gulzar Ahmed observed in its order that plot 193-A measuring 780 square yards bearing survey No 242 survey sheet Stratchen quarters was allotted to Nusrat Ali on December 23, 1950 and on death of Nusrat Ali the plot was transferred to his widow Mustafai Begum who also entered into lease agreement on March 12, 1955 with SMCHS.

The court observed that it was claimed that around 1957 the main road that was proposed to be 280 ft wide was realigned and as result it width was reduced to 240 ft and excess 40 ft (20 ft on each side) was allotted to SMCHS on December 27, 1957 by the Chief commissioner Karachi.

The court pointed out that additional area is claimed to be have allotted by the SMCHS to Mustafai Begum from 780 square yards to 1044 square yards while it is significant that this additional area of 264 square yards was not incorporated either in the original/amended lease nor in any subsequent lease deed. The court observed that present owner of the plot ultimately acquired it by way of conveyance deed executed in 2015.

The court observed that it appears that plot in question was meant for residential purposes and later it was converted from residential to commercial use after resolution of City District Government Karachi which allowed conversion of all residential plots on Shahra-e-Faisal for commercial use in January 6, 2004.

The court observed that additional 77 square yards of SMCHS was within the boundary walls of plot 193-A and said piece of land was allowed subject to payment of commercialization fee and owners claimed that said area of 77 square yards was allotted by SMCHS vide resolution on February 15, 2010 and same was included in total area of the plot.

The court observed that a report was procured from Mukhtiarkar Ferozabad who stated in his report that SMCHS had illegally increased the size of the plot by allotting land reserved for service road. The revenue official placed reliance on a layout plan which was indicative of the fact that SMCHS as well as owners of the Nasla tower had made construction on service road and had thereby blocked the same.

The court inquired the counsel of the building to explain as how the registered lease which conferred leasehold rights on the original owner for a plot of land measuring 780 square yards and which constituted the basic document on basis of which all subsequent transections took place could confer and or transfer rights on an area beyond 780 square yards. The counsel submitted that then chief commissioner Karachi had agreed to allot SMCHS 20 ft wide land strip on both sides of main Karachi-Malir road in front of the land already allotted to that society on payment of full market price. He attempted to argue that said letters confers title/leasehold rights on the additional land.

The court observed that arguments of the counsel could not be accepted to the effect that aforesaid letters and subsequent certificates and letters issued by SMCHS furnish sufficient basis to hold that area of the plot 193-A stood enhanced and the lease instrument stood modified/amended.

The court observed that such letters do not in any manner have the effect of modifying, amending or substituting the lease deed executed and registered by SMCHS in favor of the original allotees which lease deed constitute the basic and foundational document upon which the subsequent infrastructure of leases and conveyancs has been raised.

The court observed that letters and certificates issued by the SMCHS to different individuals satin that area of plot 193 A has been increased from 780 square yards to 1044 square yards are also of no legal consequences in terms of conferring title or leasehold rights on the original allottees or the subsequent leases/purchasers of the leasehold rights.

The court observed that there was no denial of fact that on account of such unilateral increase in the area which was not supported by any legally acceptable instrument, a service road has been encroached upon and the tower exists on area in excess of what was originally leased which was reflected in a duly registered lease instrument.

The court observed that commissioner Karachi has also categorically stated that all excess area measuring 341 square yards occupied by Nasla tower building is encroached.

The court observed that after examination of entire record and scrutinizing the reports submitted by all concerned agencies and departments there was in no manner doubt that tower in question had been indeed constructed on encroached land which amongst other things has also blocked the service road. The court observed that being illegal construction and there being no provision for compounding such illegality specially where a service road has been blocked the same tower was liable to be demolished.

The court directed commissioner Karachi to demolish the high rise building Nasla tower after removing all occupants from the building and submit report before court in next session of the court. The court directed that owners of the building shall refund the price of shops, residential units and other areas sold by them in any form to the registered owners within the period of three months.

The court observed that in case of delay the claimants may claim markup/profit at the bank rate together with damages and for said purpose initiate proceedings for implementation of the order of the court before court of competent jurisdiction.