Suit No.1003 of 1997
Mst.Fatima Bai & others ………….………..Plaintiffs
Versus
The Karachi Building Control
Authority & another …………..Defendants
Date of hearing 29.01.2013
Mr.Khalid Akhter, Advocate for the plaintiffs
Ms.Saba Siddiqui, Advocate for the defendant No.1
Tahir Nisar, Deputy Director KBCA, Saddar Town, Karachi.
None present for the defendant No.2
JUDGMENT
Muhammad Ali Mazhar, J. The plaintiffs have filed this suit for declaration, cancellation and permanent injunction with the following prayers:-
(a) To pass a judgment and decree in favour of the plaintiffs and against the defendants thereby declaring the impugned Notices (annexures A-22 to A-24) No.KBCA/KDA/DCB-VII/DRO.1/97, dated 1-8-1997, being in violation of Section 14 of S.B.C. Ordinance, 1979 pertaining to ground floor construction of shops Nos.11, 12 and 13 of Plot No.24-G.K.I, (GK-I/24) of Ghulam Hussain Kassim Quarters, Madina Masjid, Kharadar, Karachi, issued without Inspection, without providing any opportunity to plaintiffs of being heard and without gathering and calling for sufficient material/proof is patently illegal, based on mala fide, hence un-enforceable and of no legal effects and declared as cancelled.
(b) To grant permanent injunction against the defendants, their agents, colleagues, officials, sub-ordinates, officers, contractors, demolition squad, attorneys or anybody else acting through them or on their behalf from demolishing the construction of ground floor pertaining to 3 rented shops Nos.11,12 and 13 measuring about 175.50 Sq.ft 213.50 Sq.ft and 179.25 Sq.ft respectively on Plot No.24 GK-I (GK-I/24) Ghulam Hussain Kassim Qtrs. Near Madina Masjid, Kharadar, Karachi, as the construction of ground floor Shops, is neither ruinous nor dangerous.
(c) Cost of the suit.
(d) Any other equitable relief, which this Hon’ble Court may deem fit and proper under the circumstances of the case.
2. The brief facts as narrated in the plaint are that the plaintiffs’ late father was tenant in shop Nos.11, 12 and 13 ground floor, Plot No.24, GK-I, Ghulam Hussain Kassim Quarters, Karachi and after his death, the plaintiffs are carrying on business in the aforesaid shops. The previous landlord used to pressurize plaintiffs’ father for exorbitant increase in the rent and on refusal he filed the Suit No.1520/1988 and a rent case. Since the previous landlord refused to accept the rent therefore, the rent was deposited in the M.R.C. in court. After disposal of the civil suit and rent case, the plaintiffs tendered rent to the previous landlord but they refused to accept the rent hence, again the plaintiffs left with no option but to deposit the rent in court.
3. The plaintiffs received a notice from defendant No.2 in which the rent for the month of December, 1995 to July, 1996 was claimed with further intimation that the defendant No.2 has purchased the property in question. The plaintiffs have also alleged that the defendant No.2 attempted to dispossess the plaintiffs by show of force.
4. The grievance of the plaintiffs in this suit is that the defendant No.1 issued notice under Section 14 of the Sindh Building Control Ordinance, 1979 and declared the tenement dangerous which are in occupation of the plaintiffs. It is alleged in the plaint that the impugned notice is based on mala fide intention as the same has been issued without any inspection of the property in question and even without affording any right of audience to the plaintiffs, which is totally in violation of principle of natural justice and equity.
5. The defendant No.1 failed to file written statement hence vide order dated 12.10.1998, the defendant No.1 was declared ex-parte while the defendant No.2 filed his written statement in which he denied all the allegations against him however, he admitted that demolition notice was issued by the defendant No.1 and the building was declared dangerous but he totally denied that the notice was collusive. He further stated in the written statement that the building was declared dangerous and it was also advertised in the newspaper. The defendant No.2 also stated that there was no violation of any provision of Sindh Building Control Ordinance while issuing notices to the plaintiffs. He further stated that the building was inspected by the Standing Committee for Dangerous Buildings and thereafter it was declared dangerous.
6. On 7.12.1998 this court settled the following issues:-
(1). Whether the construction of suit shops is in good/sound condition if so its effect?
(2). Whether the impugned notices issued by the defendant No.1 have been issued illegally and in collusion with defendant No.2 as the same are based on mala fide if so its effects?
(3). Whether the defendant No.2 wants to dispossess the plaintiffs from the suit shops through defendant No.1 with bad and mala fide intention?
(4). Whether the plaintiffs are entitled for the relief claimed?
(5). Whether the impugned notices dated 1.8.1997 issued by the K.B.C.A. are liable to be cancelled?
(6). What should the decree be?
7. The plaintiffs examined plaintiff No.5 Abdul Aziz and Shoaib A.Hashmi, Architect/Engineer. The defendant No.1 failed to file any written statement but they examined Syed Asif Ali Rizvi, Deputy Controller Buildings, KBCA. The defendant No.2 failed to lead any evidence. On careful examination of evidence adduced by the parties and after hearing the arguments of the learned counsel, my findings are as under:-
Issue No.1
8. In order to support the contention that the shops in questions are in sound condition and stable. The plaintiffs produced their witness Shoaib A.Hashmi, Professional Architect who filed his affidavit in evidence and also attached the stability certificate dated 8.8.1997 as Exb.P-29 and appeared in the witness and deposed that structure on the plot in question is in perfect and sound condition. None of the defendants cross-examined this witness. The plaintiffs No.5 appeared in the witness box but he was only cross-examined by the counsel for the defendant No.1. In the cross examination he admitted that the building in question is 50 years old and in dilapidated condition but voluntary stated that the shops in his possession and occupation are not in dilapidated condition. No cross examination was conducted by the counsel for the defendant No.1 to the statement of the plaintiff that no right of hearing was afforded by the defendant No.1 after issuing notice under Section 14 of the Sindh Building Control Ordinance, 1979. The witness of the defendant No.1 along with his affidavit in evidence produced public notices published in daily Jang as Exb.D-2 & Exb.D-3 which pertains to dangerous buildings and it is a fact that the building in question is also mentioned in public notices dated 27.6.2006 and 25.6.2007 (Exb.D-2 and Exb.D-3).
9. In the cross examination, the witnesses of the defendant No.1 stated that he does not know whether any shop had fallen down. He also admitted that he has not produced any material to show that the shops in suit are dangerous and dilapidated. He further admitted that he has no record about inspection of suit shops in 1997. The evidence led by both the parties unequivocally show that though the plaintiffs admitted that the building is dangerous but he contended that the shops in their occupation are not dangerous and in support of their contention he only produced private architecture who issued stability certificate but on the other hand the witness of the defendant No.1 also failed to produce any inspection report which may show the correct picture of the building though he produced public notice in which the building in question was also included . Learned counsel for the plaintiff argued that in view of the stability certificate produced by the private architect it is clear beyond any shadow of doubt that the shops in occupation of the plaintiffs are in stable condition though the building is old and other portion is in dilapidated condition. He further argued that the witness of the defendant No.1 failed to produce any cogent evidence which may suffice to show that any inspection was carried out to determine the stability of buildings. On the contrary counsel for the defendant No.1 argued that in public notice the building in question was rightly included in the list of dangerous building circulated through public notices.
10. Since no cogent or plausible material is available on record except the stability certificate dated 8.8.1997, but the fact remains that nothing reflects from the certificate as to when the inspection was carried out and on what basis or criteria, the premises was declared stable. No inspection report and photographs are attached to demonstrate the structure stability, therefore, this court cannot give any exact or specific finding to the effect that the building is in stable condition or not, particularly in a situation when the plaintiff himself admitted in the cross examination that the building is 50 years old which is in dilapidated condition. It is also an important aspect of the matter that though this suit was filed in the year 1997 but it is pertinent to point out that under Section 21-A of the Sindh Building Control Ordinance, 1979, “The Karachi Building and Town Planning Regulations” were framed in the year 2002 and under regulation 1-5 of Regulation 2002, it is provided that notwithstanding the replacement of 1979 regulations, all proceedings initiated under said regulations shall be deemed to have been initiated under the Regulation 2002. Since the building in question is still intact and no demolition proceedings were initiated or carried out, therefore, in the present circumstances, the aforesaid Regulations 2002 with amendments made up to 2010 are very much applicable to settle down the controversy. Chapter 7 of the Karachi Building and Town Planning Regulations, 2002 pertains to the dangerous building in which it is provided that the Controller of the Building of the concerned circle shall examine every building or structure in his circle reported as dangerous and shall refer the matter to the Technical Committee constituted by the authority. Similar provision was also available in 1979 Regulations. In my view, unless proper inspection is carried out by the Technical Committee, constituted under the said Regulations no definite findings can be given whether the structure of the shops occupied by the plaintiffs are in sound and stable condition. Issue answered accordingly.
Issue Nos.2 and 3
11. Both these issues can be decided, through common findings. The claim of the plaintiffs is that the notices under Section 14 of the Sindh Building Control Ordinance, 1979 were issued by the defendant No.1 in collusion with defendant No.2 as the defendant No.2 wanted to dispossess the plaintiffs from the shops in question through defendant No.1 with mala fide intention. Though the defendant No.1 failed to file the written statement and the defendant No.2 though filed the written statement but failed to lead evidence. Mere filing written statement without coming into the witness box by the deponent does not attach any sanctity and no value can be accorded to any such written statement. However, at the same time this does not mean that whatever plaintiffs have stated in the plaint shall deem to be true and correct. It is well recognized legal principle about discharge of burden of proof that party approaching the court of law for grant of relief has to discharge its own burden and has to stand on its own legs to succeed and no benefit of any weakness in the case of opposite party can be availed by him. Ref: 2010 SCMR 1630 (Sultan Muhammad & another v. Muhammad Qasim & others).
12. There is nothing on record to show that the defendant No.1 on the behest of defendant No.2 issued the notice. There may be many flaws or defects in the notice due to not adhering to the procedure prescribed under the law but it does not mean that the notice was issued with mala fide intention rather the defendant No.1 under their statutory responsibility and obligation issued the notice and also included the building in question in the list of dangerous building. The learned counsel for the plaintiffs did not argue that whatever action initiated by the defendant No.1 against the plaintiffs was in collusion with defendant No.2 but his main emphasis was on the procedural compliance that no right of audience was provided by the defendant No.1 after issuing the notice. Counsel for the defendant No.1 also argued that the defendant No.1 performed his statutory obligation and no such notice was issued on the behest of defendant No.2. The plaintiffs himself produced Exb.P-20 in evidence which is copy of statement given by the defendant No.2 in Suit No.789 of 1996 which was filed by the plaintiff No.1. The statement shows that the defendant No.2 in the above suit himself given statement that he had no intention to dispossess the plaintiffs without due process of law. It was further stated that the defendant No.2 has already filed rent case No.1073/1996 for ejectment. The plaintiffs have failed to prove that notices were collusively issued or defendant No.2 wanted to dispossess the plaintiffs by means of above notices. Both the issues are answered in negative.
Issue Nos.4 and 5
13. Both these issues can also be decided conveniently with the common findings, hence I take up both issues together. The plaintiffs have challenged the Exb.P-25 and P-26 issued by defendant No.1 on 1.8.1997 for demolition of structure of the building in question, which was declared dangerous. The main grievance of the plaintiffs is that the notice under Section 14 of the Sindh Building Control Ordinance, 1979 is liable to be cancelled for the reasons that it was issued without inspection, without providing any opportunity to the plaintiffs of being heard and without calling sufficient material and on the basis of this plea, the plaintiffs have also claimed permanent injunction against the defendant No.1 from demolition of Shop Nos.11, 12 and 13.
14. In order to resolve this controversy, it would be appropriate to reproduce Section 14 of the Sindh Building Control Ordinance, 1979 :-
“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.
Provided that no action shall be taken under this section unless the person who is likely to be affected thereby is given an opportunity of being heard.”
15. The main thrust of the arguments of learned counsel for the plaintiffs was that though the defendant No.1 is competent to issue notice under Section 14 of the Sindh Building Control Ordinance, 1979 if any building is declared or found dangerous but at the same time it is mandatory that no action shall be taken under Section 14 unless the person who is likely to be affected is given opportunity of being heard. It was further contended that no opportunity was provided to the plaintiffs of being heard, which is against the principle of natural justice and unless proper procedure is adopted, no act of demolition can be taken place. In support of his arguments learned counsel for the plaintiff relied upon 2000 MLD 247 (M/s.Haji Khuda Bux Amir Umar v. KBCA & another). In the cited case, the learned Single Judge of this court held that no person should be condemned unheard and no order adverse to the interest of any person should be passed without giving him an opportunity of explaining his position. Authority issued notice to plaintiff to remove building in dispute forthwith without giving an opportunity of being heard to the plaintiff who was likely to be affected by the action. Authority failed to issue notice to the plaintiff to show cause as to why building should not be demolished before directing plaintiff to remove/demolish building. Such omission was a gross violation of law and principle of natural justice. Legislature being aware of the general attitude and tendency of executive authority to pass orders without giving a hearing to parties whose interests were adversely affected, normally include a provision in all statutes requiring executive authority to provide a hearing to all persons before passing any order against them.
16. Now I would like to revert back to the evidence led in support of these issues. First of all I would like to make it clear that the plaintiff in his affidavit in evidence clearly stated that no opportunity of being heard was afforded while issuing impugned notices and despite a categorical statement made in the affidavit in evidence, no cross-examination on this particular aspect was conducted by the counsel for the defendant No.1 hence this statement was gone un-rebutted. The witness of the defendant No.1 appeared in the evidence to represent the KBCA who was supposed to be conversant with the facts of the case. In the cross-examination the witness of the defendant No.1 clearly admitted that he has not produced any material to show that the shops in suits are dangerous and dilapidated. He further admitted that he has no record of the inspection of the suit shops since 1997. He further stated that he has no record to show that any previous notice was given to the plaintiff prior to the notice to vacate the premises. He further admitted that he has no record that the plaintiffs were afforded chance of personal hearing before notice to vacate the premises in accordance with principle of natural justice. After this evidence it is clear that nothing was brought on record to show that plaintiffs were given any right of hearing or opportunity of being heard but direct notice for demolition was issued which was in violation and contravention of Section 14 of the Ordinance. Counsel for the defendant No.1 failed to controvert this evidence and also failed to substantiate whether any opportunity of being heard was given to the plaintiffs in view of the proviso attached to the Section 14 of the Ordinance.
17. Under Section 22-A of the Sindh Building Control Ordinance, 1979, it is provided that the authority may frame regulation not in consistent with the provision of this Ordinance and the Rules made thereunder. Government of Sindh vide Notification No.SO(VI)8(27)/72 dated 30.10.1978 constituted a committee of experts from official and professional bodies to frame uniform building byelaws and the committee decided to frame unified building and town planning regulation for the whole Karachi Division. The regulations were given legal effect vide Section 29-A (3) of the Sindh Building Control Ordinance (Amendment), 1982. Under sub-section (3) of Section 21-A of the Ordinance, 1979 it is provided that the Karachi Building and Town Planning Regulations 1979 in the case of the Authority of Karachi and the byelaws 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. Even in the 1978/1979 Regulations, Chapter 10 was relevant to the dangerous building and under Regulation No.157 it was provided that the Controller of Buildings will refer the matter to the Technical Committee for inspection and investigation regarding the dangerous/ruinous/unsafe buildings. Similar, provision is available under Karachi Building and Town Planning Regulations 2002 in which Chapter 7 deals with dangerous buildings and Regulation 7.2 relates to technical committee on dangerous building (T.C.D.B) which provides that the Controller of the building of the concerned circle of the authority shall examine or cause to examine every building or structure or portion in his circle reported as dangerous and shall refer the matter to the technical committee especially constituted by the authority for a term of office not more than three years. It is further provided in Regulation 7.2.2 that if for the opinion of Controller of Buildings of the concerned circle a building or portion thereto has become dangerous for human habitation he shall give at least 24 hours’ notice to the owners/occupants for inspection of such building by the technical committee. Other details are also provided in the same chapter dealing the dangerous buildings.
18. It is an admitted fact that neither the defendant No.1 placed on record any inspection report nor any other material, nor provided any opportunity of being heard to the occupants/plaintiffs as envisaged under Section 14 of the Ordinance. The purpose of referring to the regulations is to show that in order to declare any building dangerous the report of technical committee is required. But at the same time the expressed provision made under Section 14 of the Ordinance cannot be overlooked under which it is incumbent upon authority to provide right of hearing to the affected persons, which cannot be by passed by the authority.
19. At this juncture, I would like to refer to the case reported in 1984 CLC 2476 (Furqan Ahmed v. Deputy Controller of Buildings), in which learned division bench of this court held that notice for demolition of the building without hearing occupier is against the spirit of law itself and the court declared the notice without lawful authority and of no legal effect. In the case of Mian S.M. Yousuf Baghpatee vs. Karachi Building Control Authority and others reported in 1993 CLC 2491, it was held that primary object of Section 14 is safety of the public. Such powers, however, could not be exercised arbitrarily and without due consideration to provisions of Section 14, Sindh Building Control Ordinance, 1979 and the right of individuals. As a remedy for “dangerous buildings” and prescribing various precautionary measures to be taken to prevent injury resulting therefrom, first of all degree of danger must be ascertained, and then appropriate measures. For ascertaining whether particular structure is dangerous, Authority must appoint a competent person for holding enquiry. Authority in such case must be satisfied that particular building is dangerous and would endanger human life. Without such satisfaction, Authority cannot exercise powers conferred by Section 14, Sindh Buildings Control Ordinance, 1979. In the case reported in 1992 CLC 518 (Vincent and others vs. Karachi Development Authority and others), it was held that premises in occupation of petitioners was declared to be dangerous on the report of inspection committee. Such premises were inspected by inspection committee without notice to petitioners. In absence of express exclusion of the right of hearing, petitioners being in occupation of premises in question were entitled to have notice from inspection committee. Report of inspection committee on basis of which houses/premises in occupation of petitioners were declared to be dangerous having been prepared without notice to petitioners was declared to be without lawful authority and of no legal effect.
20. The learned counsel for the defendant No.1 also relied upon Section 20-A of the Sindh Building Control Ordinance, 1979 and argued that the suit is not maintainable for want of 60 days’ notice which was required to be tendered before institution of the suit. The plaintiffs have challenged the notices on the ground that no opportunity of hearing was afforded to them. The ouster of jurisdiction of civil court under absolute or conditional bar would not be available where the order or action of the authority in cases where such authority acts in violation of the provisions of the statute which conferred the jurisdiction on it or the action or order is passed in violation of principles of natural justice or such order has been impugned on the ground of mala fides, such an order could be challenged in the civil court and in spite of a provision in the statute containing conditional bar, to examine whether the impugned order passed by them suffers from any such defect. Ref: 2002 MLD 1673 in which PLD 1997 SC 3 (Abbasi Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus) was followed. In the Falaknaz Builders case, it was held that though notice under Section 20-A of Sindh Building Control Ordinance, 1979 is mandatory in nature and the suit can be dismissed for want of notice but this is only a general rule with strong exceptions. Despite non-service of notice the suit would be maintainable if the impugned action are alleged to be mala fide, in excess of or extraneous to or in violation of law or statute, unlawful, illegal, unconstitutional, taken in colorable exercise of powers without jurisdiction and in violation of principles of natural justice. Bar contained in Section 20 would not apply where the impugned actions were taken not under the Ordinance but under some other rules and regulations. Ref: 2001 YLR 2542.
21. The letter of law makes it clear that before taking any action of demolition, ample opportunity is required to be afforded to the occupants. It is also a matter of record that demolition notice Exb.P-25 and P-26 issued for shop Nos.11 and Shop No.12, in which it is mentioned that the structure standing on the plot is ruinous or dangerous to be repaired while in the description of structure the occupier/owner was called upon to demolish the entire building, which is itself confusing and not clear whether the shops were to be repaired or completely demolished. As a result of above discussion, I have no hesitation in my mind to hold that the impugned notices are illegal and no action detrimental to the interests of the plaintiffs can be taken on the basis of impugned notices. Both issues are answered in affirmative.
Issue No.6
22. For the foregoing reasons, the suit is decreed to an extent that impugned notices were issued in violation and contravention of Section 14 of the Sindh Building Control Ordinance, 1979, hence no action for demolition can be initiated by the defendant No.1 (K.B.C.A) on the basis of impugned notices. On the other hand, it is clarified that the defendant No.1 may initiate appropriate action for the demolition of dangerous buildings and or structure strictly in accordance with law. It is further clarified that if any such action is envisioned or initiated in future, the principle of natural justice shall be followed in letter and spirit and ample opportunity of hearing shall be afforded to the plaintiffs in view of Section 14 of the Sindh Building Control Ordinance, 1979.
Karachi:-
Dated.19.4.2013 Judge