1999 PLP 3199 (MLD)

According to the respondents Nos. 1 and 2, the building in dispute is in a, good condition and was not dangerious. They alleged that no inspection was carried out by the respondent No. 3 and the impugned notice was issued at the behest of the applicant who was trying to eject them. They also produced certificate of a qualified architect showing that the building in dispute was in sound and prefect condition. The applicant intervened in the suit and was joined as defendant No. 2 on his application under Order, 1, Rule, 10, C. P. C. He, thereafter, filed application under Order

7. Rule 11, C. P. C. for rejection of the plaint on the ground that it was barred under section 20-A of Ordinance V of 1979. This application was dismissed by the leaned Trial Court and the instant revision application has been preferred to challenge the dismissal order. I have heard learned counsel for applicant and learned counsel for the respondents Nos. 1 and 2 as well as learned counsel for the respondent No. 3 and also perused the record. The main thrust of the arguments of the learned counsel for the applicant supported by the learned counsel for respondent No. 3 was that the mandatory condition of section 20-A, of the Ordinance V of 1979 having not been complied with the suit of respondents Nos. l and 2 was not competent and the plaint should have been rejected under Order 7, Rule 11, C. P. C. On the other hand, the learned counsel for the respondents Nos. l and 2 contended that the suit was not barred under any law and supported the view of the learned Senior Civil Judge in upholding the maintainability of the suit. Since the contentions of the parties mainly revolved around the provisions of section 20-A of Ordinance V of 1979, it will be useful to reproduce it verbatim:- (20-A) Notice for institution of suit.

No suit shall be filed against the Authority or any of its employees in respect of anything done or purported to be done by the Authority or employee under this Ordinance except after expiration of sixty days next after notice in writing has been delivered to or left at the office of the Authority or employee as the case may be." It is contended on behalf of the applicant that notice was served on 7-11-1991 whereas suit was filed on 16-11-1991 and not after expiration of 60 days. It was for this reasons the counsel for applicant submitted that there was no validly instituted case before the Court and all the proceedings before it were, thus, coram non judice. There is no doubt that section 20-A requires a prior notice in writing to the Authority and also that no suit shall be filed against the Authority or any of its employees unless a period of 60 days has expired after such a notice was delivered to or left at the office of the Authority or employee as the case may be. However, a close scrutiny of this provision will demonstrate that such a condition is applicable in respect of anything done or purported. to be done by the Authority or such an employee under this Ordinance. In other words, the notice envisaged under the Ordinance is mandatory only when the act complained of has been done or purported to have been done under the Ordinance and not otherwise. If the Authority or its employee does something which is not permissible under the law the precondition contemplated by this Ordinance will not come into play and the suit will not be thrown away merely because the notice was not given and that a period of 60 days had not expired. Every statutory body or public functionary is supposed to function in good faith, honestly and within the precincts of its powers so that the person concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan. A departure from this grund norm will render their actions destitute of validity and will resultantly strip off the cloak of protection provided to it under the law. It has been held by the Supreme Court of Pakistan in the case of Abdul Rauf v. Abdul Hamid Khan and others (PLD 1965 SC 671) as follows:- "A mala fide act is by its nature an act without jurisdiction. No legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes." In the case of Ranuaq Ali v. Chief Settlement Commissioner, reported in PLD 1973 SC 236, the Hon'ble Supreme Court observed as under:-- "It is also now well-established that where an inferior Tribunal or Court has acted wholly without jurisdiction or as Rubinstein puts it in his book on 'jurisdiction and illegality' taken any action 'beyond the sphere allotted to the Tribunal by law and, therefore, outside the area within which the law recognizes a privilege to err, then such action amounts to a 'usurpation of power unwarranted by law' and such an act is a nullity: that is to say, the result of a purported exercise of authority which has not legal effect whatsoever'. In such a case, it is well-established that a Superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful. " I have gone through the plaint wherein it is clearly alleged that notice of the respondent No. 3 is mala fide and ultra vires. Following paras from the plaint are reproduced for their relevance:- "(5) That it appears that the defendant has issued notice while sitting in the office at the instance of somebody, who is interested in ejecting the plaintiff but finding no way out appears to have influenced the defendant who under such influence seems to have issued a notice malafidely, illegally and without ascertaining the true position. (6) That nobody from the office of the defendant ever came to the site to inspect the same nor the notice in question speaks as to which team/person/persons visited the building in question and on what date and in whose presence and what was the report. In the absence of all these details or even a reference to that notice in question on the face of it, it is illegal, void, nullity in the eye of law, mala fide, ultra vires and seems to have been issued with ulterior motives. (12) That the plaintiff submits that notice under challenge has been issued without inspection, malafidely, illegally, with ulterior motives and, as such, the said notice is illegal, void, nullity in the eye of law, mala fide, ultra vires and has been issued with ulterior motives." No doubt what has been alleged in the plaint has been denied by the other side and the trust will be revealed after evidence has been led. As such, the plaint cannot be rejected or the party cannot be non-suited at this stage. If L such a course is not adopted it will mean denying a party excess to the doors of justice, when the same is very urgently needed. If a person to whom notice for demolition has been delivered by the Authority, even though illegally, is asked to write to the Authority in the first instance and then to wait for 60 days, then there will be nothing to prevent demolition which if carried out may have devastating effect so far as the affected person is concerned, Such interpretation of section 20-A cannot be favoured. It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy (Heydon's case 1584 3 Rep 7-B). A strong leaning exists against construing a statute so as to oust or restrict the jurisdiction of Courts which have been empowered to act to prevent a wrong from causing irreparable loss to aggrieved person. The Code of Civil Procedure contains, for instance, the provisions under Order 39, Rules 1 and 2 to meet such a situation. The exercise of jurisdiction in this behalf will, of course, depend upon the facts of each case coming before the Court. Learned counsel for respondents Nos. l and 2 referred to the decisions reported as Furqan Ahmed Deputy Controller of Buildings and another 1984 C L C 2476; Vincent and others v. Karachi Development Authority and others 1992 C L C 518; and submitted that the Authority was bound to hear the effected person before issuing the notice. In these cases Constitutional petitions and not the suits, were filed but the principle decided was that if the notice was contrary to law it must be quashed. In the instant case, one of the contention of the respondents is that they being tenants in the premises in dispute will be adversely affected in the event of demolition and were, therefore, entitled to be heard by the Authority before the impugned notice could have been issued. This is also an important point because it has been repeatedly held by the Superior Courts of the country that action in violation of natural justice is nullity in law. Reference may be made to the cases reported as University of Dacca v. Zahir Hussain, reported in PLD 1965 SC 90; Dr. Lateef Siddiqui v. State Petroleum Refining and Petro Chemical Corporation and others 1997 PLC (C.S.) 1014 and Anisa Rehman v. P I A 1994 S C M R 2232. The learned Trial Court will, therefore, examine the contention based on the alleged infringement of the principle of natural justice. It has further been contended on behalf of the respondents Nos. 1 and 2 that if action of respondent No. 3 was not according to law, notice contemplated under section 2.0-A of the Ordinance V of 1979 was not necessary. The following decisions have been referred in support of this plea; Karachi Development Authority through its Secretary v. Evacuee Trust Board through its Administrator Evacuee Trust Property at Karachi, P L D 1984 Kar. 34; The Orangi Pilot Project v. Madrasa Arabia Jamia Ziaul Aloom Trust Regd; Karachi and another 1987 M L D 541; Muhammad Amin v. Karachi Building Control Authority 1992 C L C 691; Noor Muhammad and another v. Building Control Authority and 2 others 1992 C L C

729. These authorities are directly on the point that the provisions for notice would not be attracted when any act was done with mala fide intention or in colourable exercise of poweRs. It has lastly been contended by the learned Advocate for respondents Nos. l and 2, that the period of 60 days expired during pendency of the suit and should be taken to mean that the requirements of notice under section 20-A, of Ordinance V of 1979, have been complied with. He referred to the following decisions in this connection. Muhammad Nafees and others v. Tariq Mehmood and others 1989 M L D 112; Mrs. Abdul Malik v. Mst. Asghari Begum PLD 1981 Kar. 88; Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others 1980 S C M R

339. Be that as ii may, since I have taken the view that notice under section 20-A, of Ordinance V of 1979 was not mandatory in the circumstances of this case revision application fails and is hereby dismissed with no orders as to costs. H.B.T./K-79/K Revision dismissed.