1998 PLP 1302 (MLD)

"(a) That this Hon'ble Court may be pleased to declare that as the plaintiffs are the tenants of the defendant and previously of the previous landlord and had been paying the rent regularly and have paid the rent up-to-date and as the tenancy of the plaintiffs in regard to the tenements bearing shops Nos. 3 and 4 on the plot of land bearing Survey No. 6/9 G.K. Ghulam Hussain Qasim Quarters, Kharadar, Karachi, is still in existence and has neither been cancelled or terminated nor there is any ejectment order or demolishing order from the competent Court of the Rent Controller, having the competency and jurisdiction under the provisions of Sindh Rented Premises Ordinance, 1979, therefore, the defendant has no right or authority either to eject or dispossess the plaintiffs or to demolish the building in question; (b) that it may further be declared by this Hon'ble Court that the notice under section 14 of Sindh Building Control Ordinance, 1979, dated 16-6-1994 and 27-12-1995 having their reference No. K.B.C.A./K.M.C./D.C.B 16/D.R./91 issued by the Deputy Controller of Buildings Zone-2, K.B.C.A./K.M.C. and the other notice vide Reference No. K.B.C.A./ K.M.C./ D.C.B.-II/D.R-16/91 dated 27-12-1995 issued by the Deputy Controller of Buildings Zone-2, K.B.C.A./K.M.C. in regarding to the Plot No.9-G.K, Ghulam Hussain Kasim Road, Kharadar, Karachi, is based on mala fide and the same have been issued to the owners, with the collusion of the owners; with ulterior motives, and therefore, the same are liable to be withdrawn and cancelled as they are not sustainable under the law; (c) that it may be further declared that as no opportunity of filing the written reply or giving the defence by the occupants and by giving the true position of the soundness of the building the order of demolishing without giving opportunity of hearing, as provided under section 14 of Sindh Building Control Ordinance, 1979, therefore, the building could not be demolished without adopting the abovementioned later procedure mentioned in this paragraph; (d) that permanent injunction may please be issued against the defendants whereby they may be permanently restrained from ejecting and dispossessing the plaintiffs from their tenements without obtaining the ejectment order from the Court of the competent Rent Controller, and they should be further restrained from demolishing the building without adopting the procedure as laid down under section 14 of Sindh Building Control Ordinance, 1979; (e) any other relief which this Hon'ble Court deemes fit and proper may be granted; (f) cost of the suit may also be granted."

3. Essentially case of the plaintiffs is that they are the tenants of defendant No. l who wanted to illegally dispossess them their respective shops and failing in such efforts said defendant in collusion with defendant No. 2 K.B.C.A. managed the issuance of a notice for demolition of the building including the shops in question without following due procedure as laid down in section 14 of the Sindh Building Control Ordinance, 1979 and Karachi Building and Town Planning Regulations which are deemed to be the rules framed under the Ordinance by virtue of section 21-A (3) of the Ordinance.

4. Counter-affidavits have been filed by both the defendants separately denying and disputing various averments made in the plaint and the affidavit in support of the injunction application. Various photographs have been placed on record to show that the building in question is dangerous and in dilapidated condition and there is imminent danger of its collapse with the result that all occupants occupying the tenements on first, second, third and fourth floor have vacated their respective premises. On behalf of K.B.C.A, it is stated that the building was inspected by Dangerous Buildings Committee constituted under the provisions of Ordinance who after being satisfied with the dangerous condition of the building directed to demolish it and such notices were duly served on the plaintiffs as far back as 16-6-1994 and 27-12-1995 calling upon them to vacate the premises failing which building shall be demolished at their risk and costs without further notice.

5. When the injunction application came up for hearing on earlier occasion, a learned Judge of this Court appointed Nazir of the Court as Commissioner to inspect the building in question and to report whether it was in dilapidated and precarious condition. Accordingly Nazir inspected the building in presence of the parties on two occasions and submitted a report dated 14-2-1996 which was followed by report dated 26-2-1996. On inspection, he found that the shops in occupation of the plaintiffs had been repaired by them for safety reasons, therefore original shape of the roofs was not identifiable. With regard to first, second, third and fourth floors of the building he noticed that the roofs were in curved-form and wooden planks of all the roofs were eaten by white aunts which were likely to collapse; walls were found in dilapidated condition and major cracks were noted therein; roof of top floor was found entirely damaged and the building on the whole was not inhabitable and reported to be in precarious condition which could not be repaired.

6. At the hearing, main emphasis of the learned counsel for the plaintiffs is that the action proposed to be taken by K.B.C.A is in utter disregard of the provisions of law inasmuch as neither the Dangerous Buildings Committee inspected the building nor was the notice of prohibition served on the plaintiffs and that they were not provided with an opportunity of hearing before directing demolition of the building in question and that whole exercise was tainted with mala fide designs in connivance with defendant No. 1 who wanted to erect a new building project on the site after demolition.

7. Learned counsel referred to the provisions contained in section 14 of the Ordinance and Rules 155 and 158 of the Karachi Building and Town Planning Regulations and contended that the building in question in fact is not in dangerous condition and rather strong enough to accommodate the plaintiffs who cannot be deprived of valuable tenancy rights in this summary procedure. I am, afraid, this Court is not a proper forum to determine such issues of fact and it is basically and essentially for the relevant authority to determine the nature, condition and strength of a building and to record a finding whether it could be repaired, maintained or renovated or is fit for demolition partially or entirely. On their own showing plaintiffs were duly served with two notices of demolition Annexures A-1 and A-2 to the plaint issued in June, 1994 and December, 1995. Proper course for them therefore was to appear before the appropriate committee of the K.B.C.A and place their view point in order to convince them that in fact the building was not in dilapidated and dangerous condition as understood. Section 16 of the Ordinance provides a right of appeal from an order passed by the authority before the Government within thirty days but evidently plaintiffs did not avail of such right and brought the present suit for the reliefs as aforesaid.

8. On behalf of defendants, it is maintained that the suit as framed is not maintainable at law and this Court has no jurisdiction to proceed with the suit. Reliance is placed on sections 16 and 20 of the Ordinance but I am not inclined to agree with such submission as section 16 provides for an appeal from an order whereas section 20 postulates indemnity to the Government, the authority or any officer of the authority in respect of the act done or intended to be done in good faith under the provisions of the Ordinance. No specific and express bar of jurisdiction or even by intendment is made out in the circumstances and I think this Court being a Principal Court of plenary jurisdiction can entertain all suits of civil nature, including the present suit.

9. In the circumstances of the case, in which all occupants of the building have vacated the premises; plaintiffs were duly served with repeated notices well in time and in the light of inspection report of the Nazir of this Court it can hardly be concluded that the plaintiffs have made out a strong prima facie case for the grant of temporary injunction. Needless to observe, no irreparable loss would be occasioned to the plaintiffs in the event of removal from rented premises as quite hopefully they would be accommodated by the landlord in the newly constructed project as per their entitlement and subject to all relevant conditions. In fact the issuance of injunction is likely to disturb the working of a public functionary which is not the spirit of law and it is the defendants who are likely to be put to greater hardship and inconvenience rather than the plaintiffs in the event of issuance of temporary injunction.

10. For these reasons I find no merit in this application which is dismissed with the observation that notwithstanding dismissal of this application plaintiffs would be at liberty to approach the K.B.C.A for a personal hearing if so desired and their request shall be considered strictly in accordance with law. A.A./M-273/K Application dismissed.