1986 PLP 581 (CLC)

Again the proceedings revived and the building was inspected by the Technical Committee which submitted a report on 22‑8‑1981 that the building had suffered cracks and other kind of deteriorations and had to be demolished. On the basis of this report the Building Control Authority issued a notice to respondent No.2 calling upon them to demolish the building as it had become dangerous. This notice was issued on 26th September, 1981. The tenants filed a suit against the order of demolition by the respondent No.l and due to some technical reasons which are not clearly indicating in these proceedings, the suit was withdrawn and the matter dropped for the time being. On 27‑8‑1983 a fresh notice was issued by respondent No.l to respondent No.2 in which the building was described as dangerous and the respondent No.2 was directed to demolish the building as a dangerous structure. It is this notice which is the starting point of the present proceedings in this revision. Before the decision of demolition contained in the notice could be implemented, the applicants (hereinafter called the "tenants"') filed a suit being Suit No.3322 of 1983 for a relief of declaration and injunction against the respondents for preventing them from carrying into effect the decision contained in the notice. An application under Order XXXIX. rules 1 and 2, C.P.C. was also filed seeking interim relief in the case. This application was dismissed by the learned IInd Senior Civil Judge, Karachi by his order, dated 9‑1‑1984. The only point urged in the proceedings and disposed of by the learned Judge was whether the notice was mala fide issued at the behest of the landlord in order to have a short circuit remedy for ejecting the tenants from the premises occupied by them. The order was passed on the tentative assessment of the contentions of the parties and it was held as under:‑

"There is no rebuttal to the facts alleged in the counter‑affidavit of the defendant No.1 in which the reasons of decelerating (?) the building dangerous has been stated. The building was inspected by a team of experts and inspection by this Court at this stage will not be sufficient to controvert this fact. Prima facie, therefore, the building is dangerous and grant of injunction to restrain the defendant No.l from its statutory functions would cause inconvenience to the defendants." A Miscellaneous Appeal being C.M.A. No. 18 of 1984 was filed against this order which was dismissed by the learned IV Additional District Judge, Karachi by his order dated 21‑3‑1985. In this order the learned Judge after discussing the facts of the case had made additional observations. It may be helpful to quote them here. "The said building was re‑inspected by the committee on highly technical experts on 22‑8‑1981 and the entire building was declared dangerous. The said building has outlived its life and demolition of said building is necessary to save human lives and property of the occupants of the said building. The entire building is lying vacant except few tenants. Some of the portion of the building is collapsed. In the notice dated 27‑8‑1983 issued by K . D . A . addressed to the landlords of the building, it is shown that the building in question has been declared dangerous by K.D.A. which is competent authority for declaring any building as dangerous. Except word of the appellant that the building is in sound condition there is no other material available on record to prove prima facie the contention of the appellants." The appeal was dismissed and the order of the Senior Civil Judge refusing injunction was upheld. Against these two concurrent judgments the tenants filed a revision being Revision No. 159 of 1985 in the High Court in April, 1985. The office raised certain objections which remained uncomplied with for a long time. The revision was placed for disposal for non‑prosecution in Court on a number of times and finally on 4‑8‑1985 the learned counsel for the applicants/ tenants appeared and pleaded no instructions and the revision was dismissed for non‑prosecution. Nothing happened for quite a length of time till October, 1985. On 5‑10‑1985 the present revision was filed and on 8‑10‑1985 a pre‑admission notice was issued for 13‑10‑1985 and a status‑quo order was also passed on this date. The revision came up for hearing in Kutcha Peshi several times but no orders could be passed by the Court. On 17‑11‑1985 it came before me and adjournment was sought on the ground that the counter‑affidavit filed by the respondent No.2 was not served in time to enable the learned counsel for the applicant to prepare himself. I adjourned the case at the request of the learned counsel, but made the following observations:‑

"As this is a case of a building which has been declared dangerous by the respondent No.l I will give only short adjournment to the learned counsel for the applicants. To come up on 24‑11‑1985." On 24‑11‑1985 when the revision came up for hearing the learned counsel for the applicant faced against two concurrent judgments advanced his arguments in details and practically took the whole day. Unfortunately the learned counsel for the respondent remained absent till the arguments had advanced a long way. As such it could not be pointed out that a revision had been filed and dismissed earlier on the learned counsels pleading no instructions and the filing of this second revision was open to question. At the close of the day I passed the following order:‑

"Mr. Khalid Latif argued the case and by consent it was agreed that the arguments now being advanced by the learned counsel should be treated to be arguments for regular disposal of the revision itself, although it has not been admitted. The point of law has been raised by Mr. Khalid Latif and due to urgency of the matter, I have allowed Mr. Khalid Latif to avail opportunity to argue the case on merits. For further hearing and disposal of the main revision to come up on 27‑11‑1985." The learned counsel for the respondent No.2 has raised preliminary objections to the maintainability of this revision on two grounds; (1) that a similar revision against the same order was filed in this Court and registered as Revision No. 159 of 1985. This revision on account of non‑compliance of some procedural requirements was put up for dismissal on account of non‑prosecution and on 4‑8‑1985, it was dismissed for non‑prosecution as the learned counsel who had filed this revision had notified no instructions. Mr. Wajihuddin Ahmed, learned counsel for the respondent No.2 contends that once a cause is dismissed no fresh case can be filed on the same cause of action against the same order unless permission has been obtained under Order XXIII Rule 1(3) C.P.C. According to the learned counsel, in the present case the dismissal of the revision by order, dated 4‑8‑1985 as a complete bar for filing a fresh revision against the same order. Even if I stretch the provisions of Order, XXIII, rule 1 clause (3), C.P.C. which are specifically applicable to suits only to revisions also for which no separate provision is available in the Code, I am afraid it would not be of any benefit to the respondent in the present situation simply because it is not a case of dismissal of a pending cause because by the time the order dated 4‑8‑1985 came to be passed there was no revision pending in Court. The revision which was dismissed for non‑prosecution had not yet been admitted in Kutcha Peshi. It is neither a case of dismissal on merits nor a case of dismissal ex parte of a pending case for the simple reason that the revision was yet under process at the office level, when due to non‑compliance of the preliminary objections it was rejected. This order can hardly be termed a judicial order. Support for this view can be sought from a case reported in P L D 1969 Lah. P.241 where it was held that the question of withdrawal can arise only after a matter has been entertained and this can be possible only after the stage of Kutcha Peshi, when after admission notices are ordered to be issued to the respondents. In my view it was neither a case of dismissal on merits nor of withdrawal of a pending matter and as such the filing of the present revision cannot be obstructed on account of the order dated 4‑8‑1985. The next contention was that the revision was time‑barred. The basis of this argument was that the order of the First Appellate Court was passed on 21‑3‑1985 and the present revision was filed on 5‑10‑1985. As such, according to the learned counsel for respondent No.2, it was time‑barred. But the learned counsel failed to answer the contention raised by learned counsel for the applicant that this was a revision for which no period of limitation was prescribed by either the Limitation Act or by section 115(c), C.P.C. itself and the present revision cannot be said to be time‑barred. In support of this contention the learned counsel has relied on the observations of the Supreme Court in P L D 1975 S C 678 and P L D 1964 S C

97. I would, therefore, admit this revision petition and examine the contention of the learned counsel for the applicant on merits and see whether any interference would be justified in the circumstances of the case. I would not have even admitted the revision if it, was only a question of a finding of facts that whether the building is or is not dangerous and in uninhabitable condition, because this question of facts has been fully examined by the two Courts below and findings have been given on the basis of inspection reports by the Technical Committee. There was hardly any point in disagreeing with this finding of fact. the learned counsel for applicant, however, built up his argument on the judgment of a Division Bench of this Court in which an order of the Director General, K . D . A. was held to be without lawful authority and of no legal effect for the reason that it was based on the recommendations of a Technical Committee which had examined the building and submitted its report in terms of Regulation 157 framed under Article 15 of the K . D . A . Order V of 1957. It was held that as these regulations were not duly gazetted as enjoined by Article 16 of the said Order V, they had no legal sanction and the certificate issued by the Committee was ineffective. According to the learned counsel when once this certificate was rejected it was a deed letter and could not be used for any purpose whatsoever. There was an apparent fallacy in this 'argument. This certificate did not find favour with the learned Judges because it was not blessed by the technicalities of Regulation 157 and other regulations which were declared ineffective for want of publication in the official Gazette. But the certificate as such possesses its own intrinsic merit and worth and may be relied upon by any authority as an expert's opinion by qualified men. In my opinion this is what has been done in this case. It is admitted position that the present notices are issued not under Article 71 of Order V of 1957 but under a different statute. The present notices are issued by the Karachi Building Control Authority in exercise of power under section 14 of Ordinance V of 1979 which was enacted on 3‑3‑1979 and would be the governing statute for the purposes of this case in which notices have been issued on 26th September, 1981 and 27th of August, 1983, both long after the coming into force of Ordinance V of 1979. The attack of the learned counsel on these notices is that these notices issued by the authority under section 14 are based on the opinion of the Technical Committee and this opinion was rejected by the judgment of the Division Bench as mentioned above. I see no reason why the authority constituted under section 4 of the Ordinance V 1979 cannot rely on this as well as any other material which it may have in its possession for forming an opinion that the building is dangerous. Section 14 dealing with dangerous buildings is in following terms: -- "

14. Dangerous Buildings.‑‑(1) If it comes to the notice of the Authority that a building is likely to collapse, the Authority may, after such enquiry as it deems fit order for carrying out the specific repairs or demolition of the whole or part of the building. (2) Where the specific repairs are to be carried out, the authority may, by notice, require the owner of building or in the event of his failure the occupier thereof to carry out such repairs within such period as may be specified in the notice and if the repairs are not carried out within the specified period, the Authority may, notwithstanding any other law for the time being in force proceed to have the building demolished and the cost of demolition shall be recovered from the owner as arrears of land revenue. (3) Where the whole or a part of the building is to be demolished, the Authority may, by notice, require the occupier or occupiers thereof to vacate the building within the period specified in the notice and if the building has not been vacated within such period, the Authority may, notwithstanding any other law for the time being in force order that occupier or occupiers of the building be ejected, if necessary, by force." Plain reading of the section would show that there are no fetters in the exercise of power of this authority and this authority can rely on any material for a finding that the "building is likely to collapse." Faced with this situation the learned counsel relied on section 21‑A clause (3) which provides for framing of regulations under this Ordinance. The contention was that these regulations are to be published in the Gazette as held by the Division Bench in P L D 1983 Kar.

579. The learned counsel, however, overlooks the fact that the phraseology of the two provisions is different. Under that statute the requirement of Gazette Notification was there, but in the present enactment the regulation should merely be published and it is not denied that they have been published. Section 21‑A, clause (3) may be reproduced as below for ready reference: -- "M The Karachi Building and Town Planning Regulations, 1979, in the case of the Authority of Karachi and the bye‑laws of the council concerned in other cases, duly published shall until the regulations are framed under this section, be deemed to be the regulations, not framed; provided that they are not inconsistent with the provisions of this Ordinance and the rules framed thereunder." I am afraid I cannot read in section 14 any mandatory requirement that the opinion of the Authority should be based on any particular material. Under section 14 the Authority has been given wide powers to form an opinion about the state of a structure "after such enquiry as it deems fit. This part of section 14 may be reproduced below:‑-- "If it comes to the notice of the Authority that a building is likely to collapse, the Authority may, after such enquiry as it deems fit order for carrying out the specific repairs of demolition of the whole or part of the building." In the present case the opinion of the Authority is based on several considerations namely, the building has been declared as dangerous several times since 1977 and several notices in a chain have been issued to the respondent No.2 for demolition of this dangerous building. This by itself can be a consideration which may have weighed with the Authority in forming an opinion. Then there was a report of, a Technical Committee before the Authority when it issued the notices. In my opinion this and perhaps some more material which it has not indicated in these proceedings may have been there to justify the declaration that the building was really in a dangerous and unfit condition to allow its further use. It is also on the record that portions of this building have already collapsed and tenants have vacated and moved to safer abode. It should be borne in mind that the Sind Buildings Control' Ordinance, 1979 is a special statute enacted to regulate certain situations and serve public interest after applying certain norms. The substance and legislative intent behind this provision should be paramount rather than procedural trappings and formalities. There may be cases where the building should be demolished within minutes but to save human lives and property; would it still be necessary to resort to all the procedure prescribed by the regulation for exercise of this power? The determination that the building is dangerous has not teen controverted by any evidence in rebuttal. No affidavit of any technical man and no opinion of any Architect has been filed by the applicant /tenants to controvert the finding of the Technical Committee or for that matter, the Authority. The allegation of mala fide which has peen made remains unsubstantiate and unspecified. As a matter of fact neither in these proceedings nor indeed before the two lower Courts even a casual, mention has been made to the allegation of mala fide which was the main plea in the written statement. Now the arguments have switched over to find technical fault in the notice and make a fettish of a formality by pressing the regulations rather than substantiating the allegation of mala fide against the Authority. The regulations are framed to ensure proper implementation of the parent Statute and restrict` abuse of power and not to delay or defeat the very purpose for which the parent Statute was enacted. The learned counsel and his clients do not appreciate that dangerous and shattered structure cannot be sustained on a challenge, to the regulation; and the life and limb of persons occupying such a heap of bricks and mortar is more important than the procedural technicalities sought to be spelt out in the regulations. I find no merits in this revision and the same is, therefore, dismissed with costs. A.A. Revision dismissed.