1990 PLP 119 (CLC)

AJMAL MIAN, C.J: (1) This petition is directed against the orders dated 26‑7‑1989 and 6‑8‑1989, passed by respondent No.2 and respondent No.l, respectively. The brief facts leading to the filing of the above petition are that the petitioners are in occupation of seven shops, situated on ground floor of Plot No.83‑LY‑18, Shidee Village Road, Lyari Ouarters, Karachi, which were declared as dangerous and the respondent No.3's father (owner of the building) was served with a notice dated 23‑6‑1982 of 48 hours, calling upon him to remove the above construction. It appears that upon issuance of the above notice, the petitioners filed an appeal before respondent No.l and C.P. No.D‑183/1984 in this Court. The above petition was disposed of by a judgment dated 2‑9‑1985, with a direction to dispose of the petitioners' appeal. In pursuance of the above judgment of this Court, the appeal was heard by respondent No.l and was disposed of by an order dated 24‑5‑1986 and the order under appeal was set aside on the ground that only three members of the Committee carried out the inspection which was improper. It was also ordered that the inspection would be carried out by a new committee. It appears that the Committee comprising of four members carried out inspection and submitted their report on 23‑6‑1986, unanimously recommending the building in question as dangerous, which comprised of only ground floor. Against the above order, the petitioners filed an appeal which has been dismissed by respondent No.1 by his impugned order dated 26‑7‑1989. The petitioners, being aggrieved by the above orders, have filed the present petition. .

2. We had issued pre‑admission notice to the respondent K.DA. for production of the report. In response to which, respondents No.l and 2 have filed a counter‑affidavit.

3. In support of the above petiton, Mr. Haji Ameer Ahmed Khan, learned counsel for the petitioners, has contended as follows:‑ (i) That the members of the Committee before the inspection had not given any notice to the petitioners and, therefore, the report is not legal. (ii) That the Committee comprising of four members was not competent to inspect the premises but the same should have been inspected by seven members. (iii) That the building is not dangerous.

4. On the other hand, Mr. Sabir Hussain Kazilbash, learned counsel for the official respondents No.l and 2, has contended as under: (i) That in terms of Section 14 of the Sind Building Control Ordinance, 1979, (hereinafter referred to as the Ordinance) the occupants are entitled to a notice of ejectment and not to a notice for inspection. (ii) That in any case, the petitioners had not raised this plea either in their memo of appeal before respondent No.l nor in the petition that the inspection by the Committee was vitiated for want of notice. (iii) That since it is not practicable that all the members of the inspection committee should be present and if the majority of the members inspected the building and unanimously recommended that the building is dangerous, then there is nothing illegal, and (iv) that the question whether the building is dangerous or not dangerous cannot be adjudicated upon in a constitutional petition particularly in presence of the view of the experts.

5. Adverting to the first submission of Mr. Haji Ameer Ahmed Khan, learned counsel for the petitioners, that the members of the Committee before the inspection had not given any notice to the petitioners and, therefore, the report is not legal, it may be observed that he has not been able to point out any provision of the Ordinance or the Rules providing that before the inspection of a building the occupants should be given a notice. On the other hand, Mr. Sabir Hussain Kazilbash, learned counsel for respondents Nos.l and 2, has referred to Section 14 of the Ordinance, subsection (3) of which inter alia provides that "the Authority may by notice, require the occupier or occupiers thereof to vacate the building within the period specified in the notice and if the building has not been vacated within such period, the Authority may notwithstanding any other law for the time being in force order that the occupier or occupiers of the building may be ejected, if necessary, by force." In our view, subsection (3) of Section 14 is not relevant for the purpose of deciding whether the Committee before the inspection of a dangerous building should give notice to its occupiers or not. It is an admitted position that on the basis of the report of the Committee the building is declared dangerous which entails the deprivation of he occupants their tenancy rights or their occupancy right and, therefore, we are inclined to hold that in the absence of any express exclusion of the right of hearing of the affected persons, A the Committee is bound to give notice inter alia to the occupiers so that they may place their point of view before the opinion is formed as to the condition of the building concerned.

6. As regards the second submission of Mr. Sabir Hussain Kazilbash that the petitioners have not raised any such plea before the appellate authority or before this Court in the petition, the above contention is factually correct. However, the petitioners have raised the above point in the rejoinder. Since the admitted position is that no notice was given by the Committee, in our view, it will not be just and proper to deny the petitioners the relief on that ground. It is not the case of the official respondents that the Committee had issued a prior notice before the inspection of the premises.

7. We would, therefore, direct respondent No.l to ask the Committee to re inspect the building after notice to the petitioners through their advocate. We may also observe that it was also contended before us that all the members of the Committee should inspect the premises, it will be advisable that the governing body of the KDA. clarifies its resolution, if there is no clarification to the effect that the majority of the members can inspect the premises.

8. The above petition stands disposed of in the above terms. AA./A‑675/K Order accordingly.