2004 PLP 1648 (YLR)

Manzoor Ahmad for Respondent No.

3. Dr. Qazi Khalid Ali, Additional Advocate‑General. SABIHUDDIN AHMED, J.‑‑‑Only Messrs Shahid Jamiluddin and Manzoor Ahmed representing the respondents Nos.2 and 3 and Dr. Qazi Khalid Ali, learned Additional Advocate‑General have appeared. Mr. Manzoor Ahmed learned counsel for the respondent No.3 placed before us a statement purportedly signed by Deputy District Protocol Officer to City Nazim conveying the minutes of the meeting dated September 3, 2003 presided over by City Nazim, wherein it was decided that action for demolition would normally be taken after approval is accorded by the City Nazim but the verdict of Court of law would be complied with. In view of the above it is clarified that the authority (K.B.C.A.) is bound to give effect to a Court order notwithstanding any general order to the contrary passed by the City Nazim.

2. The minutes further reveal that it was decided that the respondent No.2 functions under the control and supervision of City District Government and that the action to demolish a building will be taken only after approval by the Honourable City Nazim.

3. All learned counsel indicated that some confusion did exist regarding the respective powers of the respondents Nos.2 and 3 in the context of demolition of buildings. The respondent No.2 whose Chief Controller of Building appeared to be present in the meeting mentioned above, however, do not seek to acknowledge the correctness of the decision taken. In a reply to the aforesaid statement the Controller of Building has stated in writing that the K.B.C.A. management has sent various cases for approval of demolition but no reply has been received. It was argued by Mr. Shahid Jamiluddin that the Sindh Building Control Authority was constituted under Ordinance IV of 1979 and is capable of suing and being sued in its own name and could not be treated as a department of the City District Government. Dr. Qazi Khalid Ali learned A.A.‑G. also supported Mr. Shahid Jamiluddin's view point and argued that the functions of the K.B.C.A. have not been delegated to the Zila Nazims under the Sindh Local Government Ordinance, 2001. Mr. Manzoor Ahmad however, argued that the City District Nazim was competent to stay demolition.

4. We do not intend to go into the deeper question at this stage as to the distribution of powers between Provincial Government, the District Government and the Authority (K.B.C.A.). It may be conceded that prima facie the function of the Provincial Government in the area of Master Planning Land Use, Zoning, Urban Design Building Rules and Planning Standards stand devolved upon Zila Councils in City Districts in view of section 40 and section 35 read with Part `D' of the 1st Schedule to the Local Government Ordinance, 2001. We would, nevertheless leave this question open to be decided in a future case.

5. However, all parties agree the provisions of Sindh Buildings Control Ordinance remain on the Statute Book continue to remain operative. Therefore, even if it be assumed that all powers available to the Provincial Government under the Ordinance now stand transferred to the City District Government, the facts remain that the Provincial Government itself could only exercise such powers, which were available to it under the law promulgated by the legislature. It could not arrogate to itself the powers exclusively conferred upon the 'Authority'. Section 7‑A read with section 6 of the Ordinance makes it obligatory upon the Authority (K.B.C.A.) to enforce the law by demolishing any building where violation of section 6(i) has taken place. Such duty is not optional and has been enforced by this Court as welt as the Honourable Supreme Court in a large number of cases. There is nothing to show that the Provincial Government can restrain the K.B.C.A. from performing its duty subject to its appellate powers under sections 16 and 17 of the Ordinance. Therefore, we are quite clear in our mind that the City District Government or the Honourable City Nazim had no jurisdiction to undertake scrutiny of cases where the factum of violation of law had been established. Mr. Shahid Jamiluddin has referred to a letter from the City Nazim dated 16‑8‑2003 to the following effect:‑‑ "Incidentally, I notice that the aforesaid demolitions plans were sent to my office on 16‑8‑2003 afternoon. Tomorrow is holiday. Please note that such issues cannot be decided in haste. In future sufficient time should be given to the Committee for recommendations on proposed demolition plan, unless you consider a particular case to be taken up expeditiously in which case I should be taken into confidence."

6. In view of the above discussion however, we are of the opinion that the duty to demolish a building constructed in violation of section 6 of the Sindh Buildings Control Ordinance, continue to rest with the respondent No.2 (K.B.C.A.) and directions of the City District Nazim requiring that every case of demolition should be put up before him are unlawful. However, in cases where appeals have been preferred against the orders passed by the respondent No.2 under section 16 of the Ordinance and such appeals are required to be heard try Nazim under the relevant rules he may have necessary concomitant. All appellate powers suspend the operation of demolition order by way of interim relief till the appeal is decided. It is accordingly clarified that the respondent No .2 is required to take appropriate action under section 7‑A unless restrained from doing so by a Court of law or the competent Appellate Authority. H.B.T./C‑5/K Order accordingly.