P L D 1967 Supreme Court 162 (PLP)

CORNELIUS, C. J.‑The appellants in this case are three persons Muhammad Nazir, Fazal Karim and Muhammad Zakir. They moved a petition under Article 98 of the Constitution before the High Court to call in question a peremptory order issued to them by the Chairman of the District Council of Rawalpindi on the 11th March 1963 requiring them to demolish a construction made by them on a piece of land belonging to themselves in village Sumbul Korak. The order was expressed to be made in exercise of powers derived from paragraph 4 (2) of the Pakistan Capital Regulation, 1960 (M. L. R. No. 82), which reads as follows :‑ "Where the construction, alteration or enlargement of a building is commenced or done in contravention of sub paragraph (13, the local authority concerned may require the owner or occupier thereof to stop such construction, alteration or enlargement, and may also order the demolition of such building or any part thereof." It is common ground that this land is included in the Capital site as defined in the Capital Development Authority Ordinance XXIII of 1910, and that there is a prohibition against the construction of buildings in that area, without the previous permission of the Capital Development Authority appointed under that Ordinance. The impugned order by the Chairman was made in compliance with a direction received from the Capital Development Authority. In the writ petition, which was rejected and in the grounds of the petition to this Court on which leave to appeal was granted, the points raised were as follows. Firstly, the action of the Chairman was bad in law because the order which he purported to convey was not one properly made by the relevant "local authority" within the meaning of paragraph 4 of the Martial Law Regulation No.

82. The duty under that Regulation was for the "local authority" itself to decide whether the owner of the property should be ordered to demolish the building which he had constructed or any part thereof, and thereafter the Chairman being the Executive Officer of this local authority could have issued the order for demolition. In this case, the appellants had never been summoned before the local authority and indeed the matter had never been placed before the local authority. It was pleaded secondly, that the District Council was not the "I. cal authority concerned" within the meaning of the aforesaid para graph. It had been held by the Capital Development Authority purporting to act upon a reference under paragraph 11 of the Martial Law Regulation that the expression "local authority" had the same meaning as the expression "local body', as used in the Capital Development Authority Ordinance, 1960. This expression) is defined in section 2 (j) of the Ordinance, and requires for its understanding and application, reference to Article 3 of the Basic Damocracies Order where the expression "local body" is defined in clause (23). Reading the latter definition there appears . to be a numerical error in the mention of clause (23) rather than clause (24) of Article 3 of the Basic Democracies Order. For by clause (23) the expression "local body" is defined to mean any body constituted in respect of local government, but under a law other than the Basi Democracies Order. In clause (24) the expression "local council' is defined as meaning a council constituted under the Basic Democracies Order and reference to Article 9 will show that there are, in respect of rural areas, four kinds of councils, namely, a Union Council for a Union, which is the smallest unit, a Tehsil Council for a Tehsil, a District Council' for a District, and a Divisional Council for a Division., The argument presented was that the expression "local council concerned" must be understood in a narrow and specific sense, with respect either to person or territory, or subject. The persons concerned lived in the Union of Sumbul Korak and the property top was situated in that Union. There was nothing to show that such a matter as demolition was beyond the purview of a Union Council. It was not necessary that under the Basic Democracies Order or any other law, the Union Council _ should have powers of demolition, since the Regulation gave that power. Therefore, it was argued that the District Council of Rawalpindi was not the "local authority concerned" for the purposes of the appellant's case. Finally, it was urged that it was necessary for the local authority on a proper interpre tation of paragraph 4 aforesaid to enquire into all the circum stances relating to the alleged offending building, in order to a decision whether it should be demolished or not, and in the former case whether the whole or a specified part of it should be demolished. Such an enquiry could not be made to the prejudice of property rights unless the property‑owner was heard and in this case the local authority had given the appellants no hearing at all. It was explained that the appellants had lost some agricul tural land, which had been submerged in the newly‑created Rawal lake within the Capital Area, and had therefore been obliged to move their residence to some other land belonging to them in Sumbul Korak, which had not been submerged. In ignorance of the restriction, 'they commenced construction. Thereupon the Capital Development Authority raised objections. The appellants then submitted duly stamped agreements undertaking to remove the super‑structure without claiming any compensation, as soon as they were informed that their land was required for the purposes of the Capital Development Authority. In the writ petition they urged that up to the date thereof, their land had not been acquired by that Authority, nor bad any scheme been prepared in respect of that area. That condition still remains. 1n response to the representation made by them, they received notices from the Authority to surrender their buildings which were to be demolished. Against this order they filed appeals before the Commissioner of the Capital Development Authority, which were rejected on the ground that the order of the Authority was not appealable but the Commissioner also indicated that that Authority had, under law no power to take the threatened action because under the Regulation such power was reserved to the "local authority." It was then that the Authority issued their direction, which the Chairman of the District Council, Rawalpindi purported to carry out. A Division Bench of the High Court made a short order dismissing the petition. The order said that the offending construction was admittedly within the Capital Area and was therefore liable to be removed under paragraph 4 of. the Regula tion, which after implementation of ‑the new Constitution, had operation as a Central Act. There was no force in the contention that the District Council, Rawalpindi, was not the "local authority concerned" within the meaning of paragraph

4. The learned judges observed that the District Council "is the only authority, which is dealing with unauthorised constructions and conversion of agricultural land to other purposes." The learned Judges thought also that "the legal warrant of the Chairman, District Council, Rawalpindi, to issue the notice ‑has been satisfactorily explained" on the basis that he had acted in compliance with a direction received from the Capital Development Authority. The reference was to paragraph 5 of the aforesaid Regulation empowering the Capital. Development Authority to "give directions to . . . . . the local authorities as respects the exercise of their powers and discharge of , their functions under this Regulation and the Rules made thereunder". It has not been shown to us on what basis the High Court has held that the District Council, Rawalpindi, is "the only authority" dealing with unauthorised constructions. On the other a hand, the wording of paragraph 4 of the Martial Law Regulation is plain. For a proper application of that paragraph, it is necessary to give an interpretation of the expression "local authority concerned" and no adequate answer can be made to the contention that the word "concerned" is a word of limitation, and is to be construed so as to determine, which among the Local Councils has been empowered in any particular case falling under the Regulation. There is nothing to show that by law or other instrument or for any other reason, the Union Council, which is the Local Council most immediately concerned with the property and the persons involved in this case, is debarred from dealing with such a matter as demolition of a structure, or that such power is reserved exclusively to the District Council, from among the four Councils falling within the general meaning of the expres sion "local authority" used in paragraph

4. The terms in which the powers of the local authority are expressed in paragraph 4 make it perfectly clear that such authority is not to act merely as an agent for some other authority. On the contrary, the words are undoubtedly intended to convey the sense that it, is a function and .duty of the local authority when such a question arises, i. e. that there has been contravention of the restriction upon building in the Capital Area, to examine the question whether demolition should be ordered and if so, of what part of the structure, This paragraph further provides that no compensation shall be payable for any loss or damage caused by such an order, which makes it further not merely advisable, but in fact necessary to give a hearing to the person who stands to suffer the loss in question. Paragraph 5 on which reliance has been placed on behalf of the Capital Development Authority and, the Chairman, District Council clearly does not constitute the local authorities as mere agents to carry out orders made by the Capital Development Authority. It cannot be construed so as to avoid the duty imposed by paragraph 4 upon the local authority to enquire into the question whether or not an allegedly offending structure should be demolished and if so how much of it should go. That is a function that belongs to the local authority, and paragraph 5 must clearly be read as providing that the Capital Development Authority may issue instructions to the local authority as to the discharge of this function. Paragraph 5 cannot be read so as to empower the Capital Development Authority to usurp this function and convert the local authority into a mere agent to carry out its own orders. The further argument placed before us on behalf of the appellants that the Chairman, District Council, in blindly following the directions received from the Capital Development Authority, was acting outside any powers that he derived from the fact of his being charged with the functions of Executive Officer of the District Council, is clearly unanswerable. The same argument would be available had such an order as that in the present case been made by the Executive Officer of the Union Council concerned, without reference to the Union Council itself and without an adjudication on the matter by that Council. The reliance of the learned Attorney‑General in reply to the appeal was mainly upon paragraph 5 of the Regulation, resting on the interpretation that it enabled the Capital Development Authority to use the local authorities as agents to carry out its orders. In our view, paragraphs 4 and 5 read together make it perfectly clear that this view is untenable. The order in this case clearly suffers from a number of serious defects in law. It was issued by the Executive Officer of a Council which is not the "local authority concerned." In the absence of a decision by that Council, it is beyond the powers of that Executive Officer. The local authority concerned was not the District Council, but the Union Council of the particular area. That Union Council has not performed its functions under section 4 in respect of the alleged contravention by enquiring into the necessity for an order of demolition. The pleas of the appellants, (1) that up to this date, the land has not been acquired for the use of the Capital Development Authority, and (2) that no scheme has yet been prepared which includes this land, may well be given considerable weight by the local authority acting under paragraph 4 in deciding whether or not to demolish the construction, particularly in view of the written undertaking given by the appellants to remove the construction whenever the land shall be so required. We accordingly allow this appeal with costs, and direct issue of a writ to quash the order of the Chairman, District Council, Rawalpindi, dated the 11th March 1963.