P L D 1983 Karachi 579 (PLP)

AJMAL MIAN, J.-The petitioners in this petition have prayed for the following reliefs : "(i) To declare the impugned order vide Annexure "C" as mala fide without jurisdiction and of no legal effect ; (ii) To declare the order vide Annexure "A" to be a legal order ; (iii) To direct the respondent No. I by a writ by this Hon'ble Court to withdraw, cancel or recall the impugned order Annexure "C". Or in the alternative to quash the same ; (iv) To allow the cost of the petition." The relevant facts leading' to the filing of the above petition are that respondent No. I issued a notice dated 16-3-1981 under Article 71 of the K. D. A. Order, 1957 (hereinafter referred to as the order) addressed to one of the petitioners directing him to remove stone masonry walls wooden roof (ground and one upper-floor/entire building). It was also stated that failing which the authority shall cause to be done at the risk of the petitioner No.

2. It seems that after the issuance of the above notice, the- respondents Nos. 2 to 10 who are the tenants of the various tenements of the building in question approached respondent No. 11 i.e. Director-General K. D. A. against the issuance of the above notice. Thereupon, respondent No. 11 passed the following order : "I had inspected the building on 22nd March, 1981. Following action should be taken : (1) Ist floor should be got demolished by K. D. A. The help of the tenants may be taken as offered by them as their interest is also involved. (2) After the demolition of the 1st floor, an undertaking may be taken from the tenants that they will be solely responsible for consequences and they will continue occupying the premises at their risk and cost. After this undertaking they may be allowed to carry out repairs." It further seems that after the passing of the above order, the petitioners protested and inter alia approached the Secretary, Housing, Town Planning, Local Government, Karachi, through their letter dated 1-4-1981, whereupon The Secretary made an endorsement to the effect that the matter may be referred to the Committee on dangerous buildings. It is the case of the petitioners that the matter was again referred to the Committee on dangerous buildings constituted by the K. D. A. which recorded the following decision : "Committee reiterates its earlier recommendation declaring entire building as dangerous." It seems that in spite of the above reiteration by the Committee, the respondent No. 1 issued notice dated 5-8-1981 (Annexure "C" to the petition) dining the removal .of the first floor of the building of stone masonry walls and wooden roof. The petitioners being aggrieved by the above order have anted the present petition on 9-8-1981 and have prayed for the reliefs quoted hereinabove in para. 1.

2. In support of the above petition Mr. Ali Ahmed Fazeel, assisted by Mr. Khalid Athar have made following submissions : (i) That the impugned notice is illegal inasmuch as, it is against the recommendations of the Committee and also in violation of building regulation 157. (ii) That respondent No. 11 purported to vary the earlier order dated 16-3-1981, without any prior notice to the petitioners, and, therefore, the same was against the principle of natural justice. (iii) That -the impugned order is in fact mala fide in law. On the other hand Mr. Khalid M. Ishaque, learned counsel for the respondents Nos. 2 to.10 has urged the following points :- (i) That in view of the enforcement of the Sind Building Control Ordinance, 1979, particularly because of section 2 of the said Ordinance, the above petition has become infructuous. (ii) That if the original order dated 16-3-1981 can be said to be in favour of the petitioners and its valuation is violated the principle of justice, the above .original order was against the respondents Nos. 2 to 10 inasmuch as it purported to deprive them of their ,tenements in their occupation and, therefore, it was against the principle of natural justice as the same was passed without hearing the above respondents. iii) Since the Martial Law Authorities by an order dated 6-8-1981 ordered the implementation of respondent No. 11's aforesaid order dated 24-3-1981 any order in violation of the above order of the Martial Law Authorities would be hit by P. C. O. (iv) Under Article 71 of the K. D. A. order, respondent No. 1 had no authority to issue the notice as only the K. D. A. as such could have issued the notice. (v) That the petitioners in fact intend to evict respondents Nos. 2 to 10 through the impugned notice instead of invoking section 13 of the Sind Rented Premises Ordinance, 1979.

3. Mr. Yaqoob Baig, learned counsel for the respondents Nos. I and 11 have advanced the following arguments (i) That the petition has become infructuous inasmuch as the impugned order dated 5-8-1981 has been acted upon as the first floor has already been removed in compliance with the above order, with the permission of this Court. (ii) That even otherwise, the, original order dated 16-3-1981 can to implemented by respondent No. 1 after the enforcement of the Ordinance, 1979, under which the power to demolish dangerous building under section 14 has been given to the. Karachi Master Plan and Environment Control Department and that in fact respondent No. I has no means to execute the above order.

4. In our view . it is not necessary to examine all the above contentions. The basic question, which requires consideration is, as to whether regulation 157 pf the Building Regulations had the force of law. Before dealing, with the above question, it may be advantageous to reproduce the above regulation, which reads as follows :- "157.

(1) The Controller of Buildings of the concerned Authority shall examine or cause to examine every building or structure or portion thereof reported as dangerous, will refer the matter to the Technical Committee specially constituted by the concerned Authority, comprising of two senior professional engineers of the Authority and the Controller of Buildings as members/Secretary and the Committee. (2) The Controller of Buildings may give not less then twenty-four hours notice to the owner/owners or occupiers (who need not be named) for inspection of such building. (3) If the above Technical Committee finds such building dangerous/ ruinous/unsafe after proper inspection and investigation, the Controller of Buildings shall give to the owner of such building or structure, a written notice stating the defects thereof on the form No. 8 alongwith the notice and shall require the owner or persons incharge of the building or premises to commence either the required repairs or improvements or demolition and removal of the building or structure of .portion thereof as the case may be, and all such work shall be completed within the, specified period as stipulated by the Controller of Buildings up to a maximum limit of 90 days." It may be noticed that under the above regulation a technical committee was to be constituted which was to determine the question whether a building was dangerous/ruinous/unsafe after proper inspection and investigation and a finding recorded by the Committee was to be binding on the Controller of Buildings. It seems that the matter was referred to the Committee and on the same basis of its finding, the first notice dated 16-3-1981 was issued. It is an admitted position that the above regulations were not gazetted by the time the Committee had given its recommendation originally as well as the second time after the matter was referred back on the basis of the endowment made by the Secretary, Housing and Town Planning, Government of Sind, referred to hereinabove. In this regard it may be pertinent to refer to Articles 15 and 16 of the K. D. A. Order, which reads as follows : "

15. Power of the Authority to make regulations.-(I) The Authority may make regulations not inconsistent with this Order or with the rules made under Article 14, to provide for all matters for which provision is necessary or expedient for . the purpose of giving effect to the provisions of this Order. (2) in particular and without prejudice to the generality of the foregoing power such regulations may provide for (a) the meetings of the Governing Body and the manner in which business shall be conducted at such meetings ; (b) the expenditure of the funds placed of the disposal of the Authority ; (c) recruitment policy ; (d) conditions and terms. of service including provident fund and pensions, if any ; and (e) any other matter for which provision is required for the efficient discharge of the business of the Authority.

16. Rules and regulations to be published In the official Gazette.-All rules and regulations made under this order shall- be published in the official Gazette and shall corps into force upon such publication." It may be noticed that Article 15 empowers the authority Le. the K. D. A. to frame inter alia regulations not inconsistent with the Order in order to provide for all matters, for which provision is necessary or expedient for the purpose of giving effect to the provisions of the Order including the matters provided for in clauses (a) to (e). Whereas Article 16 lays down that all rules and regulations made under the order shall be published in the official Gazette and shall come into force upon such publication. Since the Building Regulations were not published in the Gazette, in our view they did not have the force of law. In other words. regulation No. 157 could not have been pressed into service in order to bind the opinion of the Committee o respondents Nos. 1 and

11. The opinion of the Committee was in the nature of recommendations which could have been accepted or could have bee rejected. It seems as pointed out hereinabove that respondent No. 1 originally accepted the recommendations of the Committee and in pursuance thereof issued the first notice dated 16-3-1981. However, this notice was modified by respondent No. 11 by his aforesaid order dated 24-3-1981 quoted hereinabove in para.

1. It may be pertinent to point out that respondent No. 11 while modifying the above notice dated 16-3-1;981 in his above-quoted order did not give any reason as to why he was not agreeing with the opinion of the Committee or the action taken by the respondent No. 1 who was his subordinate. We are, therefore, inclined to hold that respondent No. 11 could not have by-passed the recommendation of the Committee or the action proposed to be taken by respondent No. I contained-in the notice dated 16-3-1981 without assigning any cogent reason. In this view of the matter, the subsequent notice dated 5-8-1981 purporting to modify the earlier notice dated 16-3-1981 also suffers from the same infirmity. But we are not inclined to hold that respondent No. 11 could not have intervened in the matter. The action which was to be taken on the basis of notice dated 16-3-1981 was an action initiated by a subordinate to respondent No. 11 and, therefore, he was competent to intervene in the matter for cogent reasons.

5. It may also be pertinent to mention that after the enforcement of Ordinance, 1979, the power to declare a building dangerous is given to the authority mentioned therein. In other words, Article 71 of the K. D. A. Order is no longer in force and the action which is to be taken will have to be taken under section 14 of Ordinance, 1979. We, therefore, allow the above petition to the extent that the order dated 24-3-1981 passed by respondent No. 11 and the subsequent notice dated 5-8-1981 issued by respondent No. I are declared as being without lawful authority and of no legal effect. However, at the same time we are of the view that the case is to be remanded to the authority mentioned in section 14 of. Ordinance, 1979 with the direction to examine the present structure standing at the site and to decide as to whether the same is dangerous in order to attract the above provisions for demolishing the same. In the circumstances of the case there will be no order as to costs. s. Q. Petition allowed