The Sindh Building Control Authority (SBCA) has once again struck at the foundations of urban planning and the general public’s interest in Karachi. Ironically, these are the very two tenets the SBCA was established to safeguard more than four decades ago. Through a notification issued in March, the authority amended certain provisions of the Karachi Building and Town Planning Regulations 2002 (KBTPR), blurring the lines between amenity, residential and commercial use of plots and effectively permitting the utilisation of residential plots for commercial activities. The effect of the amendment is not only illogical and contrary to regulatory intent, but is most certainly going to lead to further chaos in the already dysfunctional town planning and zoning regulations. Moreover, it ultimately defeats the very purpose of designating plots for different uses. These sentiments have also been expressed most recently in a 2024 judgment by the Sindh High Court (SHC). Meanwhile, media reports have quoted Sindh Local Government Minister Saeed Ghani as saying that the subject amendments have been introduced to provide legal cover to commercial establishments functioning in the residential areas of Karachi for the last many years. This, in essence, is akin to ‘regularising’ the admitted existing violation of residential leases and land use prohibitions contained within the KBTPR 2002 itself. What does the law say? In this regard, it is important to mention that the parent statute, the Sindh Building Control Ordinance (SCBO) 1979, does not contemplate the regularisation of any unauthorised construction. Instead, Section 6(1) of the law prohibits the construction of any building before obtaining an approval in respect of the proposed construction, and the grant of a no-objection certificate in respect thereof. Moreover, Section 6(3) of the SBCO clearly stipulates that no building can, except without the permission of the SBCA, be used for a purpose other than for which its plans were approved. Even then, Section 6(4) only contemplates such permission to be granted if the building authority is satisfied that the purpose for which the building is desired to be used is consistent with the approved building plans and the imposition of such conditions and payment of such fees as the SBCA may fix. To this end, it would be difficult to imagine a scenario where the SBCA may be satisfied that approved building plans for a residential accommodation would be consistent with use as a restaurant or for other social recreational purposes. The consequences for a violation of Section 6(1) of the SBCO are set out in Section 7-A which clearly states that where the provisions of Section 6(1) are violated, the building may be sealed, its occupants ejected and the structure itself be demolished at the cost of the builder in the case of public buildings and the owner in other cases. It is clear that the only remedy the parent statute ever contemplated in the event of a violation of building construction in the absence of an approved plan and use for a purpose other than for which a plan was approved is sealing, ejectment of occupants (if any) and demolition of the building. The concept of regularisation is simply not contemplated in the parent, that is, the SBCO 1979 statute. What do the courts say? In connection with and in support of the above, the Sindh High Court, in 2018, held that while Section 7A of the SBCO 1979 — pertaining to the preparation of building plans — only refers to Section 6(1), it must be read together with Section 6(3) at all times as they are interconnected and if there is a violation of Section 6(1), it squarely applies to a violation of Section 6(3). The concept of regularisation takes its roots in Regulation 3-2-20 of the KBTPR, introduced in 2011. This too contemplates the regularisation of violations in the existing structure after payment of a fee, depending on the nature and merits of the case. However, here too, it expressly prohibits the regularisation of violations of the master plan. At the outset, it is arguable that as the parent statute does not contemplate any regularisation of unauthorised construction, the provisions of the KBPTR in this regard, exceed the provisions of the SBCO 1979 and are therefore, ultra vires. Further, the apparent regularisation via the subject amendment arguably violates the provisions of Section 6(3) and 6(4) of the SBCO 1979 and renders it redundant altogether by permitting an existing building to be used for a purpose other than for which its plans were approved. In this regard, it is settled law that the powers conferred under a regulation, being delegated legislation, cannot go beyond the perimeters of the statute under which such regulations are passed. This argument was also supported by the SHC in a 2022 order. Moreover, the Supreme Court also held in 2022 that the SBCA has a right to regularise construction which does not change the ‘complexion’ or ‘character of the originally proposed construction’ and does not have the right to regularise construction which would prejudice the rights of third parties. The meaning of the expressions ‘character’ and ‘complexion’ should be interpreted in the light of the court’s decisions in the case of Abdul Razak v. Karachi Building Control Authority and others, which was related to the construction of a ground plus two-storey structure later converted into apartments. Both the SHC and SC declined the regularisation of the building and ruled it incapable of the same. It would therefore seem that where approval is given of a structure, the SBCA may regularise a change in the number of storeys in the building as that would alter the “complexion” — the face of it — and not the “character” of the building — they cannot convert the nature of the approval, for example, from a residential bungalow to apartments, shops or offices. In addition, and as held by the SC, the construction must not prejudice the rights of third parties. This means that it is incumbent on the SBCA, while considering an application to regularise a construction, to not mechanically look at the matter from a mathematical point of view, but rather to examine the regularisation application maintained by the owner of the construction and to see as to whether the regularisation would or would not: “ … ensure safe and hygienic conditions of living for the citizens in general. They do not concern any one individual alone.“ The top court further elaborated this point in the decision reported as Ardeshir Cowasjee vs Karachi Building Control Authority, wherein it held that: “The Regulations should be applied for the benefit of the public and not for favouring an individual. Simpliciter the factum that on account of tremendous increase in ’the population in Karachi the situation demands raising of high-rise buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus-one and allowing the raising of high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc.“ Sanctioning chaos While the above judgments considered the negative effects of the conversion and regularisation of residential plots into high-rise buildings, the same argument can be made in respect of the effect of the subject amendments to the KBTPR, i.e., they would completely change the complexion of the construction and locality and negatively affect and prejudice third party rights. In addition to the apparent regularisation of existing unauthorised use of residential buildings for purposes other than for which they were intended, the subject amendments also, in effect, operate to override the underlying lease conditions of the plots as regards usage, zoning regulations and master plan designations of such plots. Previously, through various amendments to the KBTPR, residential plots could be utilised for education and health purposes, subject to following the checks and balances set out in the ‘prescribed procedure’ of the KBTPR. The consistently colourable and unprofessional exercise of powers in the implementation of the ‘prescribed procedure’ in letter and spirit is evident for all to see. Now, in addition to the ability of residential plots to be utilised for education and health purposes, such plots may also be used (as they are already in most cases) for ‘recreation purposes’ including activities, facilities and spaces that enable leisure, social interaction and community well-being, and encompass dining and social establishments such as cafes, food courts and similar venues. However, citizens can take heart that such use will only be sanctioned if the recreational purposes contribute to the communal experience of the neighbourhood. As highlighted above, the effect of the amendment is not only illogical and contrary to regulatory intent but is most certainly going to lead to further chaos in the already dysfunctional town planning and zoning regulations, and ultimately defeats the very purpose of designating plots for different use. As observed by the courts numerous times, the mess created from non-conforming use of residential properties for commercial purposes has already disrupted the entire civic fiber of the city, and is an increasing threat to the quiet and comfortable living of residents of the vicinity as a whole at cost of the business interests of a few. Citizens continue to be at the mercy of the SBCA and other government authorities regarding implementation of the ‘prescribed procedure’, which is Change of Land Use and Master Planning Bye Laws 2003 vide Resolution 383 dated 06/01/2004 passed by CDGK/KMC. Under it, 28 roads in Karachi were commercialised — this evil is another story for another day. Karachi will once again be exploited for the benefit of a very small percentage of its citizens. These amendments and many more to come will make the daily life of the majority miserable. Those brave enough to seek legal redressal will be thwarted by red tape, secrecy, stonewalling, busy or unwilling courts, the futility of past legal failures will make citizens think and of course, the financial cost. The SBCA has succeeded in further dividing Karachi; cantonment areas remain exempt, and so do old city areas, not because they are favourites but simply because the spaces, roads and plots in these areas do not meet the requirements necessary for private schools, new kinds of recreation, restaurants and other modern social activities. And so while the building authority goes about its discriminatory actions and treats citizens unfairly, ‘competent authorities’ continue to function as willing enablers.