1998 PLP 1952 (CLC)

(c) That the respondent No. 1 KBCA (KMC) is not a legally constituted body under section 4 of the Ordinance of 1979 and the notification, dated 29‑10‑1991 whereby the KBCA (KMC) was constituted is ab initio void and of no legal consequence as the Ordinance of 1979 does not envisage separate or more than one building control authority for the city of Karachi." On the other hand, Mr. Shahid Jamil Khan, learned counsel for the respondents has contended that the entire building known as Hashmi Electronic Centre has been constructed by the builder without approval of any building plan and only architectural plan which does not authorise a builder to raise construction, was got approved by the builder for the construction of Hashmi Centre. According to the learned counsel, the builder, without any approved building plan, has illegally constructed 29 shops and godowns in the basement of Hashmi Centre alongwith ground plus two storeys. A notice, dated 25‑9‑1994 was served on the owner/builder to demolish the authorised/illegal construction and on failure of the owner/ builder to do so the building in question was sealed by the respondents. Lastly, it has been contended by the learned counsel for the respondents that the entire construction of the Hashmi Centre i.e. basement and ground plus two storeys is illegal and unauthorised and under section 7‑A of the Ordinance of 1979 the respondents are legally competent to take the impugned action of sealing the same. In order to fully appreciate the contentions raised by the learned counsel for the petitioners, we deem it advantageous to reproduce hereinbelow sections 6 and 7‑A of the Ordinance of 1979:‑

"(6) Approval of Plan.‑‑‑ (1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may by prescribed: Provided .

Explanation

(2) No building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed. (3)

(4)

(7‑A) Violation of certain provisions.‑‑‑ Where the provisions of subsection (1) of section 6 are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupants be ordered by the Authority or any officer of the Authority authorized in this behalf to be demolished, at the cost of the builder in the case of public buildings and the owners in other cases." A plain reading of section 6 of the Ordinance of 1979 reveals that no building shall be constructed before the building plan of the same has been approved by the Authority and no objection certificate for construction thereof has been issued. Subsection (2) of section 6 of the Ordinance of 1979 enjoins upon the builder not to allow occupation of a building by any person unless occupancy certificate, in the manner prescribed, is issued to the builder by the Authority. Under the said subsection a duty is cast upon the occupants of a building also to obtain occupancy certificate from the Authority before occupying the same in case the occupancy certificate has not been obtained by the owner/builder. It is an admitted position that the building in question has been constructed without approval of a building plan by the Authority in the manner provided in section 6 of the Ordinance of 1979. It is also an admitted position that the builder/owner and so also the petitioners, before occupying the said illegally constructed building, failed to obtain an occupancy certificate as contemplated under section 6(2) of the Ordinance of 1979. Such being the position, in our opinion, the petitioners were not legally competent to occupy the commercial premises in the Hashmi Centre. The contention of the learned counsel for the petitioners to the effect that under section 7‑A of the Ordinance of 1979, the respondents were not competent to take the impugned action of sealing the building in question is also misconceived and fallacious inasmuch as under the provisions of section 7‑A in case of violation of provisions of section 6(1) of the Ordinance of 1979, the respondents are competent to take the impugned action of sealing the premises. Under section 23 of the Contract Act all agreement, consideration or object of which is forbidden by law, ate illegal. As observed above, the building in question was constructed by the builder/owner without approval of a building plan as envisaged by section 6 of the Ordinance of 1979 and the‑commercial premises were occupied by the petitioners without obtaining occupancy certificate from the building control authority as required under section 6(2) of the Ordinance of 1979. Such being the position, the plea of bona fide purchasers raised by the petitioners' counsel is of no help to them as under the law the petitioners were not even legally competent to purchase the said commercial premises from the owner/builder and occupy the same. The plea of the petitioners being bona fide purchasers for value, under similar circumstances, came up for consideration before this Court in the recent case of Muhammad Aslam Gatta v. Karachi Building Control Authority (KMC) and 13 others 1989 MLD 544 wherein a learned Single Judge of this Court (Mr. Justice Rasheed Ahmed Razvi) while discussing plathora of case‑law has held as under:‑‑ "(27) Section 23 of the Contract Act, 1872, makes all agreements void, the object or consideration of which is unlawful. There are several instances incorporated in section 23 and under its illustrations which further envisage that where the agreement is forbidden by law or if it defeats the provisions of any law or is fraudulent or involves or implies injury to the person or property of another or if the Courts regard it as immoral or if it is opposed to public policy falls within the category of void agreements. It was strenuously argued on behalf of plaintiffs that nowhere in section 6, in particular, and nowhere in the provisions of Ordinance, 1979, the builders are forbidden to enter into any agreement with the purchaser prior to completion of construction and, therefore, the agreements between allottees and builders are not hit by the provisions of section 6(2) of the Ordinance, 1979, which view is not correct. One of the conditions provided in section 23 of the Contract Act is that if any contract is of such a nature that if permitted it would defeat the provisions of law then such agreement is unlawful and void. In the instant case, there is a specific prohibition imposed on the builders that no building as mentioned in subsection (1) to section 6 shall be occupied by any person or shall be allowed by the builders to be occupied by any person or unless on an application of the occupant or ‑ owner the Building Control Authority has issued occupancy certificate in a prescribed manner. Therefore, in order to obtain permission to occupy any building or its portion by any occupant or owner the first requirement is that such building should have been constructed strictly in accordance with the approved building plan as provided under section 6 (1) of .the Ordinance, 1979. The second condition of grant of permission to occupy a building is that an occupant or owner must have obtained occupancy certificate from the Building Control Authority." We are in complete agreement with the dicta laid down in the case of Muhammad Ismail Gatta (Supra) and held that the petitioners were not legally competent to occupy any portion of the building in question and as such the plea of bona fide purchasers is not available to the petitioners. It has further been urged by the learned counsel for the petitioners that the impugned action of sealing the premises of the petitioners is against the principles of natural justice inasmuch as before sealing neither any show‑cause notice was served nor any opportunity of being heard was provided to the petitioners by the respondents. Reliance in support of such contention has been placed by the learned counsel on the cases of Noor‑ul‑Amin Bachani and others v. Government of Sindh through Secretary, Industries and Mineral Development Department and others 1993 CLC 727 and Gul Muhammad and others v. The Deputy Commissioner, Hyderabad and others 1993 CLC 1348. The ratio laid down in both the reported cases is that an order passed in absence of aggrieved parties and without hearing them is illegal. There can be no cavil to the proposition that no action and/or an order can be taken or passed by any authority without giving an opportunity of being heard and the superior Courts have been consistent in holding such view. The case of the petitioners is somewhat on different footing inasmuch as before taking the impugned action of sealing the premises of the petitioners a show‑cause notice was served by the respondents on the builder/owner of the property in question and the petitioners who derive their title from the said owner/builder step in the shoes of the owner/builder and as such notice to the owner/builder shall be deemed to be a notice to the petitioners. In any event; the petitioners occupied the building in question without obtaining occupancy certificate from the respondents as required by section 6(2) of the Ordinance of 1979 and as such the petitioners have acted in an illegal manner. The reliefs under writ jurisdiction of this Court being discretionary in nature, in our view, cannot be granted to a person who acts in violation of law of the land. In this view of the matter we are of the considered view that the contention of the learned counsel is misconceived. Before parting with this judgment, we would like to state that the Sindh Building Control Ordinance, 1979 was promulgated to regulate the planning, construction, control and demolition and disposal of buildings and plots in the Province of Sindh. Under section 4 of the Ordinance of 1979 the Provincial Government has been conferred with powers to nominate anybody corporate or council or any department of such body corporate or council to act as Authority under the Ordinance. Under section 11 of the Ordinance of 1979 an Authority, nominated/appointed under section 4, has been conferred a power to authorize any officer not below Grade‑17 of the National Pay Scales to inspect any under construction building for the purpose of quality control and if in the opinion of such authorized officer, any building is not in accordance with the plan or specifications approved by the Authority, a statutory duty is cast upon such authorized officer to :‑‑ by an order in writing issue any direction which shall be binding on the builder and all those concerned with the construction of the building or to require that the construction be suspended until any further direction is issued by him or by the Authority or order that the construction which, in his opinion, is defective be demolished at the cost of the builder. A plain reading of the aforesaid provisions of the Ordinance of 1979 read in conjunction with sections 6 and 7‑A of the same would reveal that the Authority and its officers are clothed with ample and wide powers by the legislature to see to it that provisions of the Ordinance of 1979 are not violated but the reality on the ground is that at least in the city of Karachi provisions of the said Ordinance are being constantly flouted by the builders with impunity. The Authority and its functionaries have miserably failed to implement and enforce the mandate of law as it is common knowledge that in majority of cases the functionaries of the Authority, for obvious reasons, shut their eyes on the flagrant violation of the provisions of the Ordinance of 1979 and the relevant Building Control Regulations. The ineffectiveness of the Authority and its functionaries has compounded the problems of the people in respect of enjoyment of their basic civic amenities such as electricity, water, gas and sewerage etc. The Authority has failed to fulfil its statutory obligations as enshrined in the Ordinance of 1979 and it is high time that proper corrective measures are taken at the appropriate Governmental level to streamline the working of the Authority lest it may become too late and the city is turned into a jungle of unplanned and unauthorized monstrous high‑rise buildings and the people are deprived completely of their basic amenities available in a civilized society. In the case in hand also the manner in which the respondents have conducted themselves leaves much to be desired and is highly regretable. As an ad interim measure an order was passed by this Court on 28‑9‑1995 ordering temporary de‑sealing of the premises of the petitioner to enable them to remove such of their goods and articles as desired and after such removal premises were ordered to be re‑sealaed. We cannot refrain ourselves from placing on record our strong disapproval on failure of the respondents comply with the second leg of the said order inasmuch as the respondents without any legal justification did not re‑seal the premises in question. In view of the above discussion, we are of the considered opinion that this petition is not maintainable and as such is dismissed alongwith C.M.A. No.4503 of 1995 with no orders as to cost. The respondents are directed to take action in respect of illegal and unauthorised construction strictly in accordance with law and report compliance to the M.I.T. of this Court within two months. A copy of this order be sent to the M.I.T. as well as to the Chief Secretary, Government of Sindh for compliance. H.B.T./M‑309/K Petition dismissed.