2001 PLP 2542 (YLR)

(q) For the history of building control laws the judgment of Muhammad Munir v. Ahmed Ali Memon (PLD 1982 Karachi 485) has been cited, whereas for the interpretation of the Karachi Building and Town Planning Regulations, 1979 the case of Abdul Razzak v. K.B.C.A. (PLD 1994 SC 512) has been relied upon; (r) Finally, it has been urged on behalf of the K.B.C.A that since the mandatory requirement in the shape of service of notice under section 20-A of the Ordinance of 1979, has not been complied with, the Court should reject the plaint and the same should be done at the stage of interim injunction and for this purpose it is not necessary to wait for the trial to finish. For the proposition that the plaint could be rejected at any stage reference is invited to K.D.A. v. Haji Bakhsh Memon (1992 CLC 1036).

3. Mr. K.M. Nadeem, the learned counsel appearing in Suit No. 139 of 1998 for the plaintiff has challenged the application of section 20-A of Ordinance of 1979 in the following terms:- (a) Section 20-A creates an impediment in the filing of the suit by a private person inasmuch as that no such suit can be filed before first serving the K.B.C.A. with a notice and then waiting for 60 days before filing such suit. No such impediment has been creased by law in relation to any action which the K.B.C.A. may take. Accordingly, there is an inherent discrimination which militates against Article 25 of the Constitution; (b) Article 23 of the Constitution guarantees the right to property and the restraint provided by section 20-A in approaching the Court for an immediate judicial interference would fundamentally undermine this right to property; (c) in view of the above, the said section 20-A is ultra vires the Constitution and is liable to be struck down. Reliance in this respect has been placed upon the decision of Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), wherein it has been held that no subordinate legislation can exist in violation of the Constitution and in case of any conflict the subordinate legislation should be declared as void; (d) there is a drafting error in section 20-A as also in the Ordinance of 1979 which does not provide for issuance of any notice by the K.B.C.A. before taking an adverse action. The principles of natural justice are unwritten laws of our corpus juris and no action can be taken before issuing a show-cause notice. There is thus a drafting error since the legislature ought to have provided for issuance of a show-cause notice before the K.B.C.A could take any adverse action. Any drafting error can be corrected by the Courts by supplying construction. Reliance in this respect is placed on Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32 head note (g) at page 39); (e) the Court should supply construction by holding that section 7-A of the Ordinance of 1979 which empowers the K.B.C.A. to take adverse action against builders can only be resorted to by the K.B.C.A. till such time a prior notice is given which would give the builders a reasonable time. Collaterally, section 20-A should also be corrected by supplying words which would automatically restrain the K.B.C.A., from taking any action pending 60 days after due notice by the builder. In this respect reliance is placed on Noor Ahmed v. Civil Aviation Authority (1987 CLC 3930).

4. M/s. Qadir. H. Sayeed, Dr.Muhammad Farogh Naseem and Abid Zubari, Advocates appearing for some of the plaintiffs have stated that the case-law on the point is directly available. Referring to the decided cases on section 20-A of the Ordinance of 1979 and Article 131 of the K.D.A. Order No.5 of 1957, the two provisions being para materia, the following was submitted:-- (a) the requirement to issue the notice under section 20-A is mandatory in nature. Thus, a suit which is filed without first issuance of the mandatory notice under section 20-A is barred. In this respect the followings are relied upon:-- Zainab v. Al-Hilal (PLD 1978 Kar. 848); Javed Akbar v. K.D.A. (1986 MLD 179); Pakistan Railways v. K.D.A. (PLD 1992 Kar. 71). Ziaur Rehman v. Aliahabad Cooperative (PLD 1995 Kar. 399) and National Fiber v. K.D.A (1996 MLD 76). (b) however, it is further submitted that the above is the general rule and there are strong exceptions. The exceptional circumstances are that despite non-service of the statutory notice under section 20-A, the suit will still be maintainable, if the impugned actions are mala fide unlawful, illegal, unconstitutional, taken in colourable exercise of power, without jurisdiction and in violation of the, principles of natural justice. Reliance is placed on:-- KDA v. Evacuee Trust Board (PLD 1984 Kar. 34); Muhammad Amin -v. K.B.C.A. (1992 CLC 691); Noor Muhammad v. K.B.C.A (1992 CLC 729); Munawar & Co. v. K.D.A. (1998 MLD 1771); Khuda Bux Chandio v. Sattar (1999 MLD 3199; NLR 199 Civil 318).

5. It will be convenient first to deal with the submission of Mr. K.M. Nadeem. The contention of Mr. K.M. Nadeem is that the Court should supply construction in sections 20-A and 7-A of the Ordinance of 1979. since the same do not provide for issuance of any show-cause notice is not very convincing. It is settled law that the principles of natural justice unless expressly excused are to be read as part of every statute even if the statute does not expressly provide for the same. The case of Hazir (Pvt.) Ltd. v. PIAC (1993 MLD 1308) is referred. In this manner, it is not necessary to supply any construction since before taking any adverse action the K.B.C.A has to provide an opportunity to the builder by issuing a show cause notice. If K.B.C.A, fails to provide such opportunity it act in breach of natural justice and the impugned action/order is void. The other contention of Mr. K.M. Nadeem that the procedure of section 20-A contains an inherent discrimination in that a private party is discriminated viz-a-viz the K.B.C.A, and the right of property as guaranteed under Article 23 of the Constitution stands hampered since section 20-A saddles a private party with the burden to issue prior notice before approaching the Court for judicial interference, have some force. However, these objections are taken care in light of what has been held hereinbelow.

6. Now coming to the contentions of the learned counsel appearing for the K.B.C.A they are of such nature that they only state the general rule and not the exceptions. The law on section 20-A of the Ordinance of 1979 and also on other like provisions seems settled, which as correctly pointed out of by M/s. Qadir Sayeed, Dr. Muhammad Farogh Naseem and Abid Zubairi, is two-fold as under:-- (a) the requirement to issue the statutory notice under section 20-A is mandatory in nature and the suit can be dismissed in case such mandatory f notice is not issued; (b) however, the above is only the general rule and there are strong exceptions. The exception circumstances are that despite non service of statutory notice under section 20-A, the suit will. be maintainable if the impugned actions are alleged to be the mala tide in excess of or extraneous to or in violation of law or statute, unlawful, illegal, unconstitutional taken in colourable exercise of power, without jurisdiction and in violation of the principles of natural justice.

7. Accordingly the judgments cited by the learned counsel for the K.B.C.A, can 1, reconciled by holding that such judgment only state the general rules for which there can be no cavil; however, the law as developed in the last three or so decades create certain exceptions. This would also be in line with the interpretation offered by the Hon'ble Supreme Court in dealing with ouster clauses contained in the Constitution which is to the effect that ouster clauses curbing, and curtailing the jurisdiction of the Court are to be strictly construed, while the same are inapplicable where the impugned actions are mala fide, unconstitutional not within the ambit of the statute, unlawful, without jurisdiction and in breach of natural justice. If there are any authorities needed for the proposition they are:-- State v. Zaiur Rehman (PLD 1973 SC 49 (87U, 89 W.X.); Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151 (167-D, 169-E, 172-J) and Federation of Pakistan v: Ghulam Mustafa Khan (PLD 1989 SC 26 (46E, 48F). Surely if the settled law pertaining to ouster clauses contained in the Constitution provides for exception, there is no reason why the subordinate legislation should not contain such exceptions. My reading of various statutes and observation of legal systems on a comparative level confirms that ouster clauses are of various types. The general ouster clause is the type which bars the entire jurisdiction of a Court to entertain a~ lis. There are other types wherein, e.g. a litigant's access to Courts of general jurisdiction is saddled with onerous conditions such as the requirement to serve a 'prior notice, deposit money or exhaust alternate remedies, especially where the latter are illusory and in-efficacious; in some cases the right of a person to be granted bail is totally taken away. The growth of judicial review has to keep the application of these ouster clauses within reasonable limits. As law presupposed that legislature presumes enactments to operate fairly justly equitably and not unreasonably. The case of Zainab v. Kamal (PLD 1990 SC 1051) is referred. The Courts should presume that ouster clauses cannot curb and curtail their jurisdiction beyond reasonable limits especially where the impugned actions are otherwise without jurisdiction, unlawful, rendered inviolation of statue, unreasonable unconstitutional and in breach of natural justice, interpreting and ouster clause beyond its logical end so as to completely abdicate jurisdiction would lead to a state of anarchy. As recently observed in State v. Tariq Aziz (2000 SCMR 751):-- ".....a strong and independent judiciary is sine qua non for sovereign Islamic State. Concept of a sovereign Islamic State minus a strong and independent judiciary is unimaginable. It is the heart of freedom and it has been said that as independent judiciary represents the difference between the civilisation and savagery. It has also been said that if judiciary of country is stripped of its powers,' the country would cease to exist as a free nation. " In the case of Qaladro v. The State (1997 MLD 1632) a Division Bench of this `Court was fully cognizant of the "volatility and growth of judicial review" so as to keep up with the needs of the changing times. Reference in this case was invited to F.W. Maitland as quoted in Person Manufacturing v. Secretary Ministry of Petroleum (1995 MLD 15) for a "pragmatic definition" of the term judicial review which is as follows:-- "As an ideation judicial review has always been a dynamitc concept and to quote F.W. Mailand, each generation has enormous power to shape its own law, its progressive growth with passage of time would bring into its fold newer subjects and enrich its armory with bolder concepts." The discussion as aforesaid would confirm that the line of authorities on the old section 80 of the C.P.C., relied upon by the teamed counsel for the K.B.C.A., at best only states the general rule and not the exceptions which have been evolved by our superior Courts in the last three decades; or alternately the same may now only be treated as part of our judicial history and not binding precedents.

8. In coming to the above conclusion I am further fortified by two other decisions of the Hon'ble Supreme Court. The first one is Abdul Rauf and another v. Hamid Khan (PLD 1965 SC 671) wherein it was held that for an order passed "under the Act" to be immune from challenger, it must be an Act/order passed in the exercise of powers conferred by that Act. Accordingly, where the action is beyond the parameter of the said Act, immunity for challenge or the bar under the statute would be attracted. Similarly, section 20-A of the Ordinance of 1979 only protects acts performed under the Ordinance. Thus, where the impugned actions are in excess or in contravention of the law or the Ordinance of 1979 the immunity claimed under section , 20-A will not be attracted and the case of Abdul Rauf (cited supra) would have a direct application. Furthermore, the second case relevant in the circumstances would be the rather recent pronouncement of the Hon'ble Supreme Court in Abbasia Cooperative Bank v. Hakim Hafiz Muhammad (PLD 1997 SC 3) which has restated and reaffirmed the settled law on ouster clauses. In this case the Supreme Court in no unequivocal terms held that the provisions contained in a statute ousting the jurisdiction of the Courts are to be construed very strictly and the ouster clauses would not come into play where the impugned actions are mala fide, unlawful, not within the para meters of the statute or in violation thereto or against the principles of natural justice.

9. The above are the principles of law. It is now necessary to comment upon certain aspects of their application. It is of-stated that mala fides have to be specifically stated and particularised in details. The learned counsel for the K.B.C.A., in this regard have placed reliance on certain decisions of the Supreme Court as mentioned above. It needs to be clarified that the latter is only correct where mala fides of fact are in issue. When it is contended that the impugned action is mala fide, it covers both actions which are mala fide in fact and mala fides in law. An action is mala fide in law if it is in violation of law. Reliance is placed on the cases of Manzoor Ahmed Watoo .,v. Federation of Pakistan (PLD 1997 Lahore 38); Hashmatullah v. K.M.C. (PLD 1971 Kar. 514 at page 531 E.F.). Where mala fide are alleged and by the same the asserted means mala fide in law, the D strict rule of detailing the circumstances of mala fides will not apply with the same vigour as in the case of mala fides in fact. The reason for this is simple. Mala fide in law is to be equated with violation of law. Even if violations of law are not specifically pleaded, pure legal questions can be raised at any stage. It is also the elementary rule of pleadings that only facts and not the law are required to be pleaded (see The Law of Pleadings in India and Pakistan by Rai Bahadur P.C. Mogha, Chapter II p. 512, 1926 edition).

10. Even the terms "jurisdiction` and "without jurisdiction", are not free from problems of interpretation and application. The decisions in this area are rightly diversified. The learned Judges have applied variations with a view to come to some reckonable distinction between the terms "jurisdiction" and "Illegality". There are certain decisions wherein it has been held that once a forum would have jurisdiction it may decide rightly or wrongly.. Is the case of Adamjee Insurance Co. Ltd., v. Pakistan (1993 SCMR 1978) jurisdiction in a Tribunal was equated with unlawful usurpation of power. In this case error of law was not found to be sufficient to invoke the Constitutional jurisdiction. Earlier, in the case of Badrul Haq Khan v. The Election' Tribunal (PLD 1963 SC 704) it was held that an erroneous decision on point of law was not necessarily a decision without lawful authority. In other words, in this case the Supreme Court was cognizant of the fact that an error of law may well-amount to an error of jurisdiction but that would depend upon the facts of each case. On the other hand, there are judgments such as Julian Hoshang Dinshaw v. ITO (1992 SCMR 250) wherein an error of law committed by the Income Tax Officer had been treated to be an order without jurisdiction and a Constitutional petition was accordingly entertained. In the case of Jamal Shah v. Election Commission (PLD 1996 SC 1) a very interesting distinction had been drawn at page 49, it was held that where administrative officers/ authorities act illegally their actions are without jurisdiction. However, in case of judicial Tribunals who have the power to decide the case, errors of law cannot be equated with orders without jurisdiction. This decision has been followed is subsequent cases including the case of Bahadur v. Umer Hayat (PLD 1993 Lahore 390 at page 401 K).

11. The term, however, "jurisdiction" has raked in controversy and lack of precision. The key question is as to whether an order suffering from error and violation of law can be termed as an "order without jurisdiction". In the case of Friend Engineering Corporation v. Government of Punjab (1991 SCMR 2324) the Supreme Court has recognised that the expressions "void order" and "order without jurisdiction" "over worked expressions". However, it could to be in the interest of justice to leave c litigants to find themselves entrapped by uncertainties of legal jargon and sophistry. The dictates of public interest would mandate a precise definition of the term "jurisdiction". The controversy as to whether an error of law is to be equated with an order without jurisdiction should be settled in favour of assumption of jurisdiction rather than abdication thereof: as Wade very correctly observed that a good Judge extends jurisdiction" see H.R. Wade "Constitutional Fundamentals", 1980 edition at pages 65 to 70). Even our Supreme Court in one case i.e. Utility Stores Corporation v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447 page 452 H) has equated the term law with jurisdiction. This judgment has provided the solutions in striking certainty in this area. It is needless to stress that law favours an interpretation which gives rise to greater certainty. In the Utility Store case the Supreme Court has defined the expression p "without jurisdiction" to include an action which is illegal i.e. where there is an error of violation of law. It has been held that the term -"jurisdiction" implies acting in accordance with law; accordingly where a Tribunal acting in goes wrong in law, it acts without and in excess of jurisdiction, which would also imply violation of Article 4 of the 1973 Constitution. It was also observed that a Tribunal invested with the jurisdiction to decide a case has no jurisdiction to decide it wrongly; it only has the jurisdiction to decide rightly.

12. Accordingly, where an action is challenged on grounds of violation of law it would be an action without jurisdiction. The term "law" not only includes the provisions of the statute but also the judicial principles decided by the Court through case-law. In case an authority acts in violation of a principle laid down by a Court in a decided case, the impugned action would be unlawful and without jurisdiction, since the term "law" includes both statute and case-law (see Shahid Mahmood v. K.E.S.C. (1997 CLC 1936 at page 1947 para. 13 including K). Thus, where a plaintiff complains that an action taken by the K.B.C.A violates a principle of law decide in a case, the plaintiff can come to the Court directly without service of the statutory notice under section 20-A, since violation of the judicial principle is also an illegal action and without jurisdiction. The question which warrants further elucidation is whether for the purpose of constraining the application or non-application of section 20-A of the Ordinance of 1979 read with Order VII, rule 11, of the C.P.C., the Court is to conduct a scrutiny of aspects of mala fides, illegality, excess or lack of jurisdiction at all, or whether for such purposes mere allegations would suffice to defeat the motion to reject the plaint. After having given profound thought to the matter, I have come to the conclusion that where in the plaint it is merely alleged that the impugned actions are mala fide, illegal, unlawful, without jurisdiction, in excess of jurisdiction, in breach of natural justice, or taken in colourable exercise of powers, the suit will be maintainable despite non-service of notice under section 20-A. The same could not be rejected under Order VII, rule 11, of the C.P.C., for lack of compliance of section 20-A, as explained just below. In case in a plaint allegations of mala fides, illegality, etc., are made the Court while deciding the application for injunction must go into the question as to whether the impugned action is prima facie without jurisdiction, unlawful, illegal, etc. If the Court prima facie comes to the conclusion that the impugned actions are without jurisdiction, unlawful, etc., it should not only hold that the suit is maintainable despite service of statutory notice under section 20-A' but should also grant the injunction (see Munawar & Co. v. K.D.A. (1998 MLD 1771). In case the Court comes to the conclusion that the impugned actions are not prima facie, mala fides, without jurisdiction, illegal, etc., it can decline the injunction but cannot reject the plaint due to non-service of statutory notice under section 20-A, provided in the plaint there are allegations of mala fides, illegality, unlawfulness, etc. The reason or this is that the Court can only reject the plaint under Order VII, rule 11, C.P.C., where there are allegations of mala fide, illegality, lack of jurisdiction, etc., since it is settled law that under Order VI, rule 11), the contents of the plaint are to be accepted as pleaded. It would not be out of place to mention that even terms of Order VI, rule 10 of the C.P.C., for the purposes of pleadings, it is only sufficient to allege malice or fraudulent intention as facts, without setting out the details and circumstances.

13. In light of the above discussion when faced with the objection of lack of service of statutory notice under section 20-A the Court may, adopt the following steps: (a) in the first step the Court may conduct a limited inquiry for the time being and only see as to whether in each individual case before it there are allegations of mala fides illegality, excess or lack of jurisdiction, violation of natural justice, etc., in the plaint. In all those suits where these allegations are pleaded the Court should dismiss the motion to reject the plaint on grounds of non-service of statutory notice but where these allegations are not present and the statutory service of notice under section 20-A has not been effected, the Court may reject the plaint as not maintainable. Even in National Fiber v. K.D.A. (1996 MLD 76) the Court rejected the plaint since in the said suit there was no allegation that the defendants had acted outside the scope of their authority (see para.6 at page. 79-B of 1996 MLD 76); (b) as a second step the Court should take each case and see whether prima facie the allegation of mala fides, illegality, etc., are made out so as to either allow or reject the application for junction. The above proposal or technique if applied by the Courts will not only strike greater certainty but will also be in consonance with Orangi Pilot Project v. Madras Arabia Jamla (1987 MLD 541) wherein it has been held that the Court has to look into the case as disclosed in the plaint for the purposes of deciding as to whether the suit is barred due to non-service of statutory notice. It is further held therein that the Court should resort to the rejection of the plaint only after exploring all possible justifications and should not act with undue haste.

14. There is another aspect which warrants an observation by this Court. The bar contained in section 20-A will not apply where the impugned actions are taken by the K.B.C.A., - not under provisions of the Ordinance of 1979 but under some other rule or Regulation e.g., the Karachi Building and Town Planning Regulations, 1979 or where the plaintiff complains breach of Regulations/Rules and has filed the suit to enforce such Regulations/Rules. The reason for this is that the bar under section 20-A only applies to actions taken "under the Ordinance" i.e. Ordinance of 1979.

15. To the various queries made by the Court to bind the K.B.C.A., to respond to notices under section 20-A, the learned counsel for the plaintiff submitted the possibility of holding as follows:-- (i) the moment the plaintiff serves a notice under section 20-A, the K.B.C.A shall be under a direct obligation to respond to such notice; (ii) it is only when the K.B.C.A., replies to the notice under section 20-A and reasonable time lapses thereafter that the K.B.C.A., can take any further adverse action. The above suggestions have got there merits and demerits. The advantages are that:-- (i) litigation in the Court can be curtailed this process since a number of complaints may be redressed by the, K.B.C.A., and he could be downsized. (ii) the K.B.C.A., or their officials would not be in a position to threat and black mail the builders on the pretext that they would be taking coercive actions without delay or even without issuance of notice. On the contrary, the disadvantages are as follows:-- (i) this may facilitate a rise in corruption. Unscrupolous builders in collusion with corrupt officers of the K.B.C.A could ensure that replies to notices under section 20-A by the K.B.C.A. are indefinitely deferred; (ii) the Officers of the K.B.C.A., are known to violate the law. This is the main reason why so many genuine or collusive suits have been filed against the K.B.C.A. in this Court. If K.B.C.A., would comply with the terms of the law many suits would not be filed in the first place. There is also no guarantee that the K.B.C.A. officials would reply to the notices before taking coercive actions. A scenario can be given to illustrate this point. Supposing the Court in the cases before it now decides that till such time the K.B.C.A. replies to a notice under section 20-A it cannot take any coercive steps. Thereafter, a builder lawfully raises a building, but the K.B.C.A., officials still threatens him. The builder serves a notice under section 20-A. Before giving any reply the K.B.C.A., officials unlawfully demolish the building. The only remedy will be damages. There would also be no contempt since in the very case no orders of the Court will have been violated as none had existed. In other words, there would be nothing to bind the K.B.C.A officials. 16. 1 have given my serious thoughts to the above, the very purpose of legislating section 20-A and other like provisions have' been to give the Government Officer an opportunity to reconsider his legal position and make amends or settle the claim, if so advised, without possibility of litigation. Paramath Narayan Bose v. Nashwer Ali Bepari (PLD 1951 Dacca 33) is a direct authority on the point and had been relied by the learned counsel for the K.B.C.A. as highlighted above. It is equally settled law that no provision in a statute is to be rendered redundant, while there has to be a purpose for every provision of a statute. Accordingly where the builder issues or serves a notice under section 20-A to the K.B.C.A., the officers of the K.B.C.A., must give a reply to such notice. In order to curtail any possible abuse in this regard, as already pointed out above, it would be necessary to fix a time limit within which the K.B.C.A. must respond. In my opinion a reasonable time in this regard would be 10 days from the receipt of the notice under section 20-A. It is further pointed out that in case the reply to the notice under section 20-A is not given within 10 days, it would render the responsible officer to disciplinary and other actions. No doubt the statute itself does not provide for any time limit to submit the reply, however, the Court in order to prevent abuse can fix a reasonable time as also done by the Hon'ble Supreme Court in the case of Federation of Pakistan v. Tariq Pirzada (1999 SCMR 2189) wherein the Supreme Court fixed 90 days as the mandatory period in which the President ought to decide any representation/appeal against the order of the Ombudsman.

17. In coming to the conclusion in para. 15 above some support can well be extracted from the case of Noor Muhammad v. CAA (1987 CLC 393) wherein a learned Single Judge of this Court held that mere issuance of notice on an application by the Court to the other side would by itself restrain the party from doing anything of the nature complained in the application, even if the Court does not pass an actual ad interim order. In case the party to whom notice has been issued by the Court shows no restraint, the Court can then grant a status quo ante on the next date. A High Court appeal was filed before the Division Bench against the said order of the Single Judge. The Division Bench did not interfere with the judgment of the Single Judge. The judgment of the Appellate Court is reported as CAA v. Noor Muhammad (PLD 1988 Kar. 401) wherein the following observations were made which are being reproduced for convenience:-- "there cannot be any doubt that the Court can undo any act on the part of a defendant which he might have taken malafidely after the service of the notice of an injunction application, if the Court is satisfied that the dictates of justice so demand and, therefore, in a fit case the Court can pass an order of status quo ante i.e. restoring the parties to the position which was obtaining at the time of the filing of the suit and the injunction application but, in our view, this does not necessarily mean that in every case where a defendant after service of notice of a stay application takes some adverse action/step against the plaintiff, the Court as a matter of course should order restoration of status quo ante without examining the merits of the case. However, it is desirable that a defendant should not take any action after the service of notice of a stay application with the intention to render the stay application infructous, as it may create complication for him" (at page 403-A)

18. One could well-argue that the above position is only with regard to notices issued by the Court and not by parties e.g. under section 20-A. This argument may have some force but even if the principles extracted from 1987 CLC 393 read with PLD 1988 Kar. 401 are not directly applicable, they can be extended by way of analogy. Furthermore, the Court has ample power to supply construction to the provisions of statute by way of modification where there is some patent inconvenience, absurdity, hardship or injustice occasioning through a literal reading of provisions of the statute. In other words in events of inconvenience, hardship, absurdity or injustice the Court may read in or read down words in the statute i.e. it can provide additional words to the statute or omit the same. Reliance placed on the cases of Abdul Rahim v. UBL (PLD 1997 Kar. 62 at pages 86 and 87) and Wajahat Ikram v. The State (1999 SCMR 1255 at page 1265). Furthermore, Article 4 of the Constitution obliges the person interfering with the property of another person to, explain and satisfy the validity and propriety of his actions, both procedural and substantive as held in the case of Government of Sindh v. Abbas Ahmed (1994 SCMR 923 at page 927-B). On the strength of the cases of Abdul Rahim v. UBL and Wajahat Ikram v. The State (cited supra) I am constraint to supply construction by the process of reading in and reading down words in the said section 20-A. And such words would be to the effect that once a person issues a notice under section 20-A to the K.B.C.A, the latter would be under an obligation to reply and respond to such notice within ten days of such notice. In coming to this conclusion the Court is further supported by the cases of Pacific Multinational v. IGP (PLD 1992 Kar. 283), Dadabhoy Investment v. Federation of" Pakistan (PLD 1995 Kar. 33), Port Services (Pvt.) Ltd., v. Pakistan (PLD 1995 Kar. 374) and Arif Builders v. Government of Pakistan (PLD 1997 Kar. 627) wherein it has been held that the functionaries of the State have to act honestly, fairly, justly and not in arbitrary or capricious manner; the failure to reply to the notices under section 20-A issued by the parties would be unfair, unjust and arbitrary. Thus, the direction by the Court to the K.B.C.A., to respondent to such notices shall also be a direction to curb, curtail and discontinue an arbitrary, unfair and unjust practice. This would also be in keeping with section 24-A of the General Clauses Act, 1897 which has been interpreted in Siemens Pakistan v. District Judge (PLD 1998 Lah. 1) Airport Support Service v. The Airport Manager (1998 SCMR 2268) and Zaim Yar Khan v. The Chief Engineer (1998 SCMR 2419) to the effect that State functionaries have to give reasons for their orders and they should act jsutly, fairly and reasonably for orders, reasons have also to be spelt out for inaction and failure of the K.B.C.A., to reply to the notice under section 20-A.

19. Summing up the above discussion the objection of the learned counsel for the K.B.C.A., touching upon lack of service of notice under section 20-A of Ordinance, 1979 is to be decided from case to case in terms of the following: -- (i) the requirement to serve a notice under section 20-A is mandatory. Accordingly, where a person files a suit without first serving the notice under section 20-A, the said suit would be barred in law; (ii) however, the above is the general rule and by way of exception a suit would still be maintainable despite non-service of statutory notice under section 20-A if the impugned actions are alleged in the suit to be mala fide, unlawful, illegal, unconstitutional taken in colourable \ exercise of power, without jurisdiction and in violation of natural justice; (iii) While for the purposes of defeating a motion under Order VII, rule 11, and establishing maintainability of the suit it would suffice that mere allegations as stated in para. (ii) above are made in the plaint, however, for the purposes of grant of injunction the Court will see on a case to case basis as to whether prima facie the allegations as stated in the said para. (ii) above are present; notice under section 20-A, the K.B.C.A., shall be under a direct obligation to respond and reply to such notice; (v) the K.B.C.A. should submit the reply to the objection as to section 20-A, within 10 days. In case the reply is not given within 10 days it would subject the functionary responsible therefor, to disciplinary action; (vi) the observations made in this order may not be misunderstood since there may be an occasion where in view of urgency of the matter the plaintiff may well have to rush to the Court immediately without issuing a notice under section 20-A, or waiting for its reply. In such a case the observations listed in (iv) and (v) above would become irrelevant but the ones contained in (i), (ii) and (iii) above shall still continue to apply.

20. The Registrar of this Court is directed to communicate para. 19 of this order to the Chief Controller of the K. B. C. A.

21. Order accordingly.

22. The order disposes of the legal objections as to non-service of notice under section 20-A of the Act, 1979. For further proceedings the matter be fixed according to roster. Legal objection disposed of. H.B.T./K-30/K Order accordingly.