1992 PLP 518 (CLC)

AJMAL MIAN, CJ. ‑‑The petitioners through this petition have impugned the notice dated 3‑8‑1989, issued by respondent No.1 through the press appearing in daily Urdu Newspaper "Jang" of 3‑8‑1989 declaring inter alia six outhouses situated on Plot No.29, F.T/2, Mukhtar Manzil, Lilly Road, Frere Town,. Karachi as dangerous. The petitioners who are the tenants/occupants of the above quarters and were six in number, being aggrieved have Filed the present petition to impugne the above notice. It may be observed that prior to the issuance of the present public notice, a notice dated 3‑4‑1982 was issued declaring the structure in question as dangerous. However, the above notice was stayed in C.P. No.297/1982 which was filed by the petitioners and which was dismissed in default by a Division Bench of this Court on 6‑2‑1988. After the dismissal of the above petition the present impugned notice has been issued. It may be observed that the first notice dated 3‑4‑1982 was issued on the basis of the inspection report dated 4‑3‑1982 of a committee comprising three members. In the case of Furqan Ahmed v. Deputy Collector of Buildings and another, reported in 1984 CLC 2476, it was held by a Division Bench of this Court that the report of inspection committee, signed by three members only out of seven, was not legal. Be that as it may, it seems that in the aforesaid Writ Petition No.D‑297 of 1982, this Court had allowed respondent No.1 to get the aforesaid construction re‑inspected by the committee which was done by the committee comprising five members on 27‑10‑1986 (Annexure "B" to the counter affidavit).

2. It is an admitted position that the committee before inspecting the structure in question had not given any notice to the petitioner in C.P. No. 775 of 1989 (A. Aziz v. Director‑General, KDA and others) decided by us today. We have held that in the absence of express exclusion of the right of hearing, the tenants are entitled to a notice from the inspection committee for the reasons recorded in the judgment. For the same reason, we would hold that in the instant case also the petitioners were entitled to a notice before the inspection of the tenants, of which the petitioners would be deprived of by implementation of the report of the Committee.

3. Then it was contended by Mr. S.H. Kizilbash, learned counsel for respondents Nos.l and 2, who is present in response to pre‑admission notice, that the petitioners had alternate adequate remedy in the form of an appeal before the Director‑General, KDA or a suit. It will suffice to observe that it has been consistently held by the superior Courts that the mere fact that the right of appeal is provided under the relevant law would not divest the jurisdiction of the Superior Courts to entertain a Constitutional petition if the facts of the case so demand. In the present case as we have held that the petitioners were entitled to a notice from the inspection committee, in our view it will not be proper to dismiss the petition on the ground that they should file an appeal. The filing of the appeal will in fact prolong the matter, we would, therefore, dispose of the above petition in terms of the aforesaid judgment of even date passed in C.P. No.D.775 of 1989. AA./V‑28/K Petition accepted.