Demolition of illegal fourth floor in flats ordered

SHC slams builder, SBCA for illegal construction, safety violations

HYDERABAD:

Adding an extra but unapproved floor in a flat may take some months to build but getting that unauthorised construction demolished may take around nine or more years in this country, thanks to administrative and litigation delays. Such an instance, in which the Sindh High Court has ordered demolition of flats built on the fourth floor of a plaza in Latifabad's Kohsar housing scheme, has unfolded in Hyderabad.

The subject of the case, Oasis Apartments which was supposed to have 39 flats in its ground plus three-storey structure, though pertains to a particular building, the practice of raising unlawful structures is noticeably rampant in commercial buildings.

Through its order the Hyderabad Circuit Bench has not only laid bare violations of a builder in connivance with the government's regulatory arm, Sindh Building Control Authority (SBCA), the omissions of the subordinate courts have also been brought to light. The order given by justice Riazat Ali Sahar reads, "I am of the deliberate opinion that the findings of the learned trial and appellate courts are a result of their failure to consider the facts and the law. This is a classic case of non-reading of evidence and gross misinterpretation and non-application of the otherwise clearly applicable law."

In 2016 an inhabitant of Oasis Apartment in Kohsar, Muhammad Irfan, filed a two-pronged suit before civil judge and judicial magistrate IV. Its one part was related to his payment problems against the builder, M/S Hassan Construction Co, Builders and Developers, and the other was about the interests of all the buildings' residents as well as matters of regulatory compliance like fire safety and water supply.

The flat's possession was supposed to be handed over to the allottee by January 1, 2012. However, the builder honoured his commitment allegedly with a delay of 34 months by October, 2014, and that too with unfinished works whose expenses were borne by the allottees. The possession was given without issuance of the possession letter, Irfan claimed. "[the builder] has constructed a fourth floor putting the lives of the inhabitants in danger," he contended.

The trial court had raised eight points which it wanted the litigants to answer. Seven of these points pertained to controversies concerning the plaintiff and the respondent builder. But point number five bore on the violations committed by the builder by raising the fourth floor. Nevertheless, the case was dismissed and the plaintiff's prayers remained unheard. The appellate court of additional district and session judge VIII also upheld the same judgment.

"The trial court was of the opinion that since the plaintiff or other residents of the building had not approached the SBCA regarding construction of the fourth floor, the matter was one among the residents, the builder and the SBCA," the SHC's judge underscored in his order. "A reading of the trial and appeal judgments would show that the evidence led in respect of issue number five were not considered at all. The observations of the learned appellate court on the matter of fire extinguishers and other safety equipment are astonishing."

Justice Sahar pointed out that the appellate court stated in its order that "a glance at this document [agreement between builder and allottee] shows that no condition regarding fire extinguishing, electricity or water hydrant nor roof top is mentioned in such terms and conditions." He added that the aspect of construction of an unapproved floor, fire extinguishers and hydrants which concerned all the residents as well as approval conditionalities of the SBCA was totally ignored.

During the trial, Assistant Director SBCA Jameelur Rehman had submitted that the builder was granted permission for construction of the ground plus three floors with nine flats on the ground and 10 each on the first, second and third floors. He said the roof was to be handed over to the building's residents. Similar observations came from Azeemuddin Ansari, an associate engineer who was appointed by the trial court as the commissioner on July 15, 2019. Interestingly, both the lower courts did not touch upon such submissions.

"I find it rather strange — in all honesty, I find it sad — that the learned appellate court didn't differentiate between personal and public obligations of the builder and as a result, whoever enters into that premises to the grave risk of fire and lack of water supply," justice Sahar stated. The SHC ordered the SBCA to demolish the fourth floor but after ensuring that any third party interests created by the builder are compensated.

The authority has also been directed to initiate action against the builder for their violations besides taking action against the concerned officers of the SBCA for their connivance. Mukhtiarkar Latifabad will have to convey the judgment to the residents of the fourth floor and to advise them to seek compensation from the builder.