S.A. MATIN Versus PROVINCE OF SIND

1. ABDUL KADIR SHAIKH, J.--- The dispute in this case is essentially between petitioners, who are the landlords, and respondents 4 to 10, their tenants, and it is over the question whether the building in dispute situated on Survey No. GK-7/100-1/B-213, opposite Mereweather Tower, M. A. Jinnah Road, Karachi is dangerous for the occupants as would require to be demolished under section 79 of the Municipal Administration Ordinance, 1960. According to petitioners, this three storied, tile-roofed, 100 years old building, comprising of 40 tenements, is in ruinous condition. The composition of the structure is stated to be of stone-masonry, load bearing walls, in lime mortar, and wooden roofs supported by R. S. joints. Certain portions of roof are said to have collapsed already, due to failure of the roofing-timber which has been eaten away by termites. According to petitioners, Karachi Municipal Corporation, therefore, after making a detailed survey of the building, issued notices under section 79 of the Municipal Administration Ordinance on 10th May 1971 declaring the front portion of the building, comprising of 13 tenements, to be in dangerous and ruinous condition and called upon the occupants to show cause, within three days, why the said portion should not be demolished. In the notices, description of the dangerous portion of the building is given as "Ground Floor, First Floor and 2nd Floor with Stone Masonry Walls, Wooden, Mangelore Tiles and Sheet roofing consisting of premises G/l, G/2, G/3, G/4, G/5, G/7, 1/1, 1/2, I/3, 1/4, 1/5, 1/6, and 2/1".

2. Mr. A. A. Fazeel learned counsel for the petitioners stated at the Bar that premises Nos. G/3 and G/4 are occupied by petitioners, and possession of premises No. G/7 has already been surrendered by the tenant in petitioners' favour there is therefore no dispute in regard to these tenements.

3. The respondents 4 to 10 instead of showing cause in terms of the notices dated 10th May 1 71., approached the Administrator, Karachi Municipal Corporation in separate appeals against the issue of the notices. They produced certain certificates from their own Architects in support of the contention that the structure of the building is in sound condition. In view of the conflicting opinions of the Architects, the Administrator inspected the building personally, in presence of the parties, their counsel, the Chief Engineer, and the Architect' (Control) of Karachi Municipal Corporation, and finally rejected the appeals, by the order dated 6th of November 1971.

4. The reasons that prevailed with him may usefully be reproduced in his own words as follows;

5. "In view of the peculiar situation out of contradictory certificates given by private Architects certifying at the same time soundness of structure and also its weakness the site was inspected by me personally on 2-10-1971 in the presence of the parties, their counsel, Chief Engineer and Architect (Control) K. M. C. The building appeared to be quite old and had out-lived its life. The load-bearing walls have already shown cracks and show visible signs of settlement of foundation. Portions of roofs have already collapsed due to failure of roofing timber. Some dangerous portions were also seen supported by props.

6. In view of the observations made by me on the site I am convinced that the positions mentioned in the notice of Architect (C) dated 10-5-1971 have rightly been declared to be in dangerous condition. I do not agree with the suggestion that the building can be repaired and made habitable for another 25 years. The view taken by the architects for the appellants does not hold good inasmuch as the word "repairs" to the building has to be implied in a reasonable sense. The meaning of the word "repair" cannot be stretched to imply replacements of the portions which have otherwise outlived its life. The fact remains that the building cannot sustain any long with repairs. The conditions of the building demands replacement and not repairs.

7. As for the contention that inspection was not done in the presence of appellants I find that it was purely a technical matter and Architect (C) could conduct the inspection without the help of appellants. The principles of natural justice were not ignored as the impugned notice calls upon the concerned parties to show sufficient cause to the satisfaction of the authority-why the notice be not implemented. The appellants, however, preferred the appeal forum.

8. As for the contention that demolition is not provided for in section 79(t), there is already a High Court ruling in appeal 355 of 1965 (Saleh Bhai s/o Muhammad Ali v. K. M. C.) wherein it was held that "There is no ambiguity in subsection (1) of section 79 nor is there any difficulty in coming to the conclusion that subsection (1) of the section is not controlled by subsection (2) of that section".

9. I do not find any force in the argument that proceedings were indirectly initiated for ejectment of old tenants although tenants cannot be ejected without involving proceedings under Rent Restriction Act. The two statutes are independent of each other and the notice in this case has been issued by a competent Authority for removal of dangerous structures. Action under 79 cannot be postponed or ignored on such consideration:

10. In view of the above I reject the appeal. The stay granted on 15-5-1971 is, however, vacated."

11. The tenants then challenged this order in appeal to the Divisional Commissioner, Karachi. During the pendency of the appeals, the post of Divisional Commissioner was abolished, and the appeals came up for decision before the Secretary to the Government of Sind in the Excise & Taxation, Housing, Town Planning and Local Government Department, in his additional capacity as the Controlling Authority of the Karachi Municipal Corporation. Learned Officer after hearing the parties reached the conclusion that is contrary to the one that prevailed earlier. Since lengthy arguments were addressed at the Bar in regard to this aspect of the case, it is only appropriate that the relevant portion be reproduced in extenso. It reads as follows;-

12. "Five tenants of the Jilani House have come in appeal against the order of the Administrator, Karachi Municipal Corporation passed on appeal No. 74/71. The appellants are the tenants of the 'laid building since last 20 years. The building is an evacuee property and is presently owned by Messrs S. A. Matin and Irshad Elahi. It is a three-storeyed building built up of stone masonry walls. Originally the roof of the building was of wood but subsequently some of the tenants have replaced the roof by R. C. C.

(2) The owners of the building approached the Architect Control of Karachi Municipal Corporation and the Architect has issued a show -pause notice for demolition of a portion of the building which is in the occupation of the tenants on the ground that it is a dangerous building and may collapse at any time and cause damage to the inmates and others. The five appellants who are the tenants of the front portion of the building have objected to this declaration of the Architect Control and have contended that show-cause notice declaring the building as unsafe his beets given by the owners with the connivance of the K. M. C. Staff with the sole object of evicting the present tenants as the location of the building is such that it can fetch a considerable amount as `Pugri' `goodwill'.

(3) The appellants have also contended that the "building has been inspected by some architects who have given the opinion that with due repairs the building can be used for some years to come. The appellants fear that the owners are not allowing any repairs with the sole purpose of evicting the present tenants.

(4) The building in question was inspected along with the Chief Town Planner and Architect of the Karachi Development Authority. It was found that it was an old building of stone masonry with lime mortar and in the portion said to be dangerous no repairs whatsoever has been undertaken by the owners who have also not allowed the tenants to undertake the repairs. The roof has actually collapsed and has been supported by props in certain places. It was found that the entire building is not dangerous and the said dangerous portion can be retained after proper repairs and it is imminent that the repairs should be taken in hand at once.

(5) The counsel for both the parties were heard in detail and I find that the order of the demolition of the tenements of the appellants is mala fide inasmuch as it ignores the R. C. C. roof, pillars and beams and has made no mention of the back portion of the building which is in a bad shape and the owners have shown no inclination for demolishing that portion as it appears that they are only interested in the front portion. The appeal is accordingly upheld and the order passed by the Administrator, Karachi Municipal Corporation, is set aside with the directions that necessary repairs be undertaken at once.

13. (Sd.) Rashid Ahmad

14. Secretary to Government of Sind, Excise, Taxation, Housing, Town Planning and Local Government Department and Controlling Authority, Karachi Municipal Corporation, Karachi."

15. In support of this petition which was filed to challenge this order, Mr. A. A. Fazeel, learned counsel for the petitioners raised several conten tions, including questioning the authority of the Provincial Secretary to deal with the appeals. He, however, firstly addressed arguments on merits of the case to emphasise the submission that the impugned order is founded on the reasons that are either totally outside the record of the case, or are contrary to it. In this behalf, learned counsel pointed out that the Administrator of the K. M. C. had personally inspected the building in view of the conflicting opinion produced by the tenants from their private Architects, and he finally agreed with the opinion given by the Chief Engineer as well as the Architect (Control) of K. M. C., taking into consi deration all the material that was produced by the tenants and also what was pointed out by them at the time of site inspection. Learned counsel pointed out that the tenants had specifically requested in the Memo of their Appeal to the Divisional Commissioner, Karachi that Mr. Z. A. Nizami, Chief Architect (Control) K. D. A. be asked to report on the condition of the building and the Commissioner of Karachi had granted their request and directed. this Officer to make a report. Learned counsel strongly relied upon this report which was sent by Mr. Z. A. Hashmi under his Letter dated 22nd December 1972 addressed to the Provincial Secretary who heard the case. It would be useful to reproduce this letter in extenso. It reads

16. "As desired by the Controlling Authority, I have inspected the building in detail twice. During the first inspection it was not possible to see the whole building as some of the rooms were found locked in spite of the fact that notices were issued to the individual tenants. During the second inspection it was possible to see all the rooms in detail. Third inspection was carried out by Secretary, Local Government Department also wherein I was also present. My independent views in respect of the condition of the building are as follows;

(1) The building appears to have been constructed about 80 to 90 years back and during the last 10 years or so, it has been neglected and no repair had been carried out.

(2) The whole structure is constructed of stone masonry with lime mortar with wooden roof.

(3) At some places the tenants have replaced the roof.

(4) At various places the roof has actually collapsed and at other places it is supported by props which might give way any time. Moreover it is very dangerous to put props on the first floor as they can endanger the roof of the ground floor also causing loss to life and property.

(5) It appears that the whole building is not dangerous and some portions can be retained after proper repairs. However, the portions declared dangerous by K. M. C. are in very precarious condition and any mishap can occur any time causing damage to life and properties of the inhabitants and also causing dislocation of traffic on Bunder Road.

(6) It appears that several contradictory certificates have been given by Licensed Architects but they cannot be relied upon. The factual position is that the building declared dangerous should be pulled down and if owner wants to construct a new building he will be permitted to do so according to approved Town Planning and Building Regulations of K. D. A. This permission will be subject to the condition that he will leave any portion which might be required for road widening according to K. D. A. plans.

17. This opinion is purely from technical point of view and has no bearing with the legal requirements which might be necessary to decide the issue of tenancy with the landlord."

18. As mentioned earlier, learned counsel challenged the impugned order on the ground that the findings given by learned Provincial Secretary are either outside the record or against it, and in order to substantiate this contention he, at the outset, pointed out the observation made in the order that "the building is an evacuee property and is presently owned by Messrs S. A. Matin & Irshad Elahi." According to Mr. Fazeel this observation is indicative of slipshod approach of the learned Provincial Secretary to the entire case, which is also reflected in the findings given by him which are contrary to the facts on record. The building, learned counsel asserted, cannot be an evacuee property, and also at the same time owned by the petitioners, unless they themselves are evacuees, which is nobody's case. These observations in the impugned order were, therefore, emphasised as the caseless manner in which approach to the case was made.

19. Learned counsel then referred to the following observation made by n learned Provincial Secretary;

20. "It was found that it was an old building of stone masonry with lime mortar and the portion said to be dangerous under repairs whatsoever has been undertaken by the owners who have also not allowed the tenants to undertake the repairs."

21. The second observation to which reference was made pertains to the finding in the impugned order to the effect that the "order of demolition of the tenements of the appellants is mala fide inasmuch as it ignores the R. C. C. roof, pillars and beams and has made no mention of the back portion of the building which is in a bad shape and the owners have shown no inclination for demolishing that portion as it appears that they are only interested in the front portion".

22. These findings, according to learned counsel, are totally outside the facts on record and obviously misconceived because at no time it was the complaint of the tenants that the petitioners had not allowed them to carry out the repairs. So far as the finding in the second portion referred to above, learned counsel pointed out that it was the Architect of the K. M. C., and not the petitioners, who had declared certain portions of the building which, in his opinion, were in ruinous condition, and the petitioners could not, therefore, be condemned by the Provincial Secretary as being interested only in the front portion, mala fidely, and not the back portion, of the building.

23. Learned counsel finally concluded this aspect of the case by citing the reported decisions in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 S C 14) and The Murree Brewery Co. Ltd. v. Pakistan (P L D 1972 S C 279) for the contention that where the order is shown to have been passed for extraneous or irrelevant reasons, interference by the High Court, in exercise of its constitutional jurisdiction, is not only permissible, but it is, indeed, warranted and justified.

24. As regards the challenge to the authority of the Provincial Secretary to deal with the appeals which the respondents 4 to 10 had originally filed before the Commissioner of Karachi, Mr. A. A. Fazeel submitted that after the post of Divisional Commissioner was abolished, the only person legally competent to deal with the appeals is the Revenue Commissioner Sind, and not the Provincial Secretary. It is the admitted position of the learned counsel for the parties in this regard that reference for the purpose of appreciating this aspect of the case is to be made to Sind Peoples Local Government Ordinance 1972 (Sind Ordinance No. II of 1972), and Sind (Amendment of Laws) Ordi nance, 1972 (Sind Ordinance III of 1972) and three Notifications issued there under. The first Notification was issued on the 18th March, 1972 under Sind Peoples Local Government Ordinance, 1972. It reads as follows;--

25. "No. S. O. III-1-3/71.----In pursuance of the provisions contained in section 4 (2)(b) and section 6 of the Sind People's Local Government Ordinance, 1972 (Sind Ordinance No. II of 1972), the Governor of Sind is pleased to prescribe that with effect from the date the Sind (Amendment of Laws) Ordinance, 1971 comes into force the Deputy Commissioner shall be the Controlling Authority of the existing Local Councils including the Municipal Committees within his jurisdiction."

26. Second Notification was issued, two days later, on 20th March 1972, Under the same Ordinance, and it reads as follows;----

27. "No. S. O. III-10-4-72.----In pursuance of the provisions of section 6 of the Sind People's Local Government Ordinance, 1972 (Sind Ordinance II of 1972), the Governor of Sind is pleased to prescribe the following rule : .

28. The existing Local Councils including the Municipal Committees referred to in clause (b) of subsection (2) of section 4 of the Sind People's Local Government Ordinance, 1972, shall, 'until properly constituted Councils assume office in accordance with the said Ordinance, function as they were functioning immediately before the repeal of the Basic Democracies Order, 1959 and the Municipal Administration Ordinance, 1960 ; provided that where in such functioning anything was to be done or any power was to; be exercised by the Commissioner such thing shall be done and such power shall be exercised by the Revenue Commissioner."

29. The third Notification to which reference was made is dated 7th April, 1972 and is also under the provisions of the Sind (People's Local Government) Ordinance, 1972. It reads;

30. "No. S. O. III-1-3-72. -In pursuance of the provisions contained in sections 6 and 4(2)(b) of the Sind People's Local Government Ordinance, 1972 (Sind Ordinance II of 1972) and in Supersession of all previous notifications regarding Controlling Authority and Government of Sind, Excise, Taxation and Local Government Depart ment Notification No. S. O. III-1-3-7i, dated 18th March 1972 and No. S. O. III-10-4-72, dated 20th March 1972, the Governor of Sind is pleased to prescribe the following rule, namely

31. The existing Local Councils including the Municipal Committee referred to in clause (b) of subsection (2) of section 4 of the Sind People's Local Government Ordinance, 1972 shall until properly constituted Local Councils assume office in accordance with the said Ordinance, function as they were functioning immediately before the repeal of the Basic Democracies Order, 1959 and the Municipal Administration Ordinance, 19E0, subject to the condition that all powers, functions and responsibi lities hitherto exercised, performed or discharged by the Commissioner in respect of any Local Council shall henceforth be exercised, performed or discharged by Government.

32. Provided that :--

(a) the Controlling Authority for the K. M. C. and all District Councils shall be Government ; and

(b) the Controlling Authority for other Municipalities shall be the Deputy Commissioner of the District in which the Municipality is located."

33. In order to appreciate the arguments fully, the Sind (Amendment of Laws) Ordinance, 1972 may also be reproduced, in extenso except for the Schedule attached to it. It reads as under;

34. "1. Shot title and commencement.-(1) This Ordinance may be called the Sind (Amendment of Laws) Ordinance, 1972.

(2) It shall come into force on such date, hereinafter referred to as the 'appointed day', as Government may, by notification in official Gazette, appoint.

2. Amendments.-Save as expressly provided the Acts, Ordinances and Orders specified in the Schedule shall on and from the appointed day stand amended in the manner indicated in the fourth column thereof and, so far as may be, corresponding amendments in all rules, regulations, bye-laws, notifications and orders, made or issued thereunder shall, until such rules, regulations, bye-laws, notifications and orders are brought by express modification into accord with the Acts, Ordinances and Order so amended, be deemed to have been made.

3. Transfer of appeals etc.-(1) All appeals, review or revision petitions, or any other case pending before any Commissioner or Additional Commissioner immediately before the appointed day shall stand transferred to and be disposed of by the Revenue Commissioner immediately before the appointed day shall stand transferred to and disposed of by the Revenue Commissioner to be appointed by Government.

(2) Subject to control of the Board of Revenue, the Revenue Commis sioner appointed under subsection (1) shall for the purposes of this section exercise the same powers as were exerciseable by a Commis sioner or Additional Commissioner immediately before the appointed day.

4. Extension and Repeal.---The Sind Mukhtiarkars' Courts Act, 1906 (Sind Act II of 1906) is hereby extended to Khairpur District and the Bombay Mamlatdars' Courts Act, 1906 (Bom. Act II of 1906) in its application to Khairpur District is repealed."

35. There is no controversy over the competency of the appeals as originally filed by respondents 4 to 10 before the Commissioner of Karachi ; the aspect which is material for the resolution of the controversy is the situation created on the abolition of the posts of Divisional Commissioners in Sind by virtue of Sind (Amendment of Laws) Ordinance 1972 which came into force on 20th March, 1972 being the "appointed day" specified under Notification No. S. O. 1-(S G A.-I. D.)/1-2-72 dated 18th March 1972 issued in exercise of powers conferred by subsection (2) of section 1 of the said Ordinance. It is admitted on all bands that the appeals filed by respondents 4 to 10 before the Commissioner of Karachi were validly pending in spite of the repeal of, the Municipal Administration Ordinance, 1960 by the Sind People's Local Government Ordinance, 1972, because of the saving clause contained in the repealing Ordinance in its section 4(2) (a) which is to the following effect;

36. "(2) (a) Where a law stands repealed under subsection (1),-----

(a) any appointment, rule, regulation, or bye-law made or applicable thereunder, notification, order or notice issued, tax, rate, toll or fee levied, imposed or assessed, contract entered into, suit instituted or action taken under such law shall, so far as is not inconsistent with the provisions of this Ordinance and the rules, .be deemed to have been respectively made or applied, issued, levied, imposed, assessed, entered into, instituted or taken under this Ordinance;

(b) the existing Local Councils including Municipal Committees shall continue to function until properly constituted Councils assume office in accordance with the provisions of this Ordinance."

37. These provisions do save the pending proceedings. There is, even otherwise, no -controversy that the appeals filed by respondents 4 to 10 were validly pending before the Divisional Commissioner, Karachi in spite of the repeal of Municipal Administration Ordinance, 1960. The question is whether these appeals could be dealt with, after the crucial date, namely, the 20th March, 1972, by the Provincial Secretary, or by the Revenue Commis sioner, Sind. According to Mr. A. A. Fazeel, these Appeals were to be dealt with by the Revenue Commissioner, Sind by virtue of powers conferred upon him under the provisions of section 6 of the Sind Peoples Local Government Ordinance, 1972, under Notification No. S. O. III 10-4-74 issued on 20th March 1972. He further submitted that these appeals also .stood automatically, transferred by virtue of the mandatory provisions of section 3 of the Sind (Amendment of Laws) Ordinance, 1972 which clearly provides that "all Appeals, Review or Revision Petitions or any other case pending before any Commissioner or Additional Commissioner immediately before the appointed day shall stand transferred to and be disposed of by the Revenue Commissioner to be appointed by Government."

38. It would, however, be seen that Sind (Amendment of Laws) Ordinance 1972 amended only those Laws that are specified in the Schedule attached to it, which is referred in section 2. This Ordinance does not seek to affect on any other laws, except these specified in the Schedule, and to the extent and in the manner specified therein. Neither the Municipal Administration Ordinance, 1960, nor the Sind Peoples Local Government Ordinance, 1972 finds any mention in the Schedule, and these laws are, therefore, unaffected by Sind (Amendment of Laws) Ordinance, 1972. The argument advanced by Mr. A. A. Fazeel, however, is that section 3 of this Ordinance is not controlled by its section 2, and full effect is to be given to its provisions and, therefore, all Appeals, Review and Revision Petitions or other cases pending before the Commissioner or Additional Commissioner immediately before the appointed day i.e. 20th March 1972 stood transferred as to be disposed of by the Revenue Commissioner, Sind, irrespective whether the Appeals, Review or Revision Petitions or other cases are relateable to the laws specified in the Schedule to the Sind (Amendment of Laws) Ordinance, 1972.

39. It is true that in section 3 of Sind (Amendment of Laws) Ordinance 1972 no specific mention is made as to the laws under which Appeals, Review or Revision Petitions or any other case pending before the Commissioner or Additional Commissioner are, by its effect, automatically transferred, but it is inherent in the provision of the Ordinance itself, if ordinary plain meaning is to be given to it, that reference to cases mentioned in section 3 is only to those that were pending under the laws specified in the Schedule to the Ordinance, which are amended by virtue of its section 2. The effect of the amendments made by section 2 of the Ordinance is that "Commissioner" or "Commissioner of the Division" appearing in all the laws mentioned in the Schedule stood omitted or replaced by "Provincial Government", or "some other Authority". The provision made in the next section that immediately follows, i.e. section 3 of the Ordinance, regarding transfer of the cases pending before the Com missioner or Additional Commissioner immediately before the appointed lay is clearly meant for the purposes of filling up the lacuna, if any, created by the amendments effected in the laws specified in the Schedule. It will be seen that with the omission or replacement of "Divisional Commissioner" from the laws specified in the Schedule, it becomes essential, as a matter of sheer necessity, to provide for the disposal of the cases pending before the Divisional Commissioners immediately before the appointed day, which was specified as 20th March 1972. The purpose of the provision made in section 3 also is to adopt and specify a uniform method of disposal of the Appeals, Review or Revision Petitions, or any other cases pending before the Divisional Commissioners after the abolition of their posts. It is in this context that section 3 is to be interpreted. The basic principle of construction of statutes is that the legislative intent is to be ascertained or discovered by considering the statute as a whole. It is true that effect is to be given to all the constituent parts of the statute, but all these are to be read together in order to ascertain the legislative intention from the whole Act, considering every provision in the light of the general purpose, and object of the Act, and endeavouring to make every part effective, harmonious and sensible. It would be noticed that the language of section 3 of the Sind (Amendment of Laws) Ordinance, 1972 is not couched in the manner as can be said to be overriding in nature, so that its provisions be applicable to all the laws, including those that are not specified in the Schedule to the Act. If the Legislature intended that the provisions of section 3 of the a Ordinance were to affect all the laws, apart from those not specified in the Schedule under section 2, then the intention could have easily been made clear by adding a suitable clause to that effect. That is however, not the case.

40. If the interpretation sought to be placed by Mr. A. A. Fazeel on the language of section 3 is to be accepted, then it must be held, as a logical conclusion that in so far as section 2 of the Ordinance is concerned, it applies only to those laws that are specified in the Schedule referred to therein, but the scope of section 3 is so wide and broad that it covers all the laws in force in Sind, whether specified in the Schedule or not. Such an interpretation, in our opinion, is neither logical, nor is warranted on the language of section 3, read with the rest of the provisions of the Ordinance.

41. There is yet another aspect. We have mentioned earlier that the Sind Peoples Local Government Ordinance, 1972 was promulgated on 18th February 1972 and yet, the Legislature which is deemed to be aware of the existence of the previous laws, did not specify it in the Sind (Amendment of Laws) Ordinance 1972 which was enacted and published in the Sind Extraordinary Gazette 17th March 1972 and came into force on 20th March, 1972 by virtue of Notification issued under section 1(2) under No. S. O. I-(SGA & I. O./1-2-72 dated 18th March 1972. On the same day i.e. 18th March. 1972 the Deputy Commissioner was declared to be the Controlling Authority of the existing Local Councils, including the Municipal Committees within his jurisdiction. Two days later i.e. on 20th March, 1972 on which day Sind (Amendment of Laws) Ordinance, 1972 came into force, the Governor of Sind, in pursuance of the provision of section 6 of the Sind People's Local Government Ordinance, 1972 made the following rule under Notification No. S. O-III/10-4-72;

42. "The existing Local Councils including the Municipal Committees referred to in clause (b) of subsection (2) of section 4 of the Sind People's Local Government Ordinance, 1972, shall, until properly constituted Councils assume office in accordance with the said Ordinance, function as they were functioning immediately before the repeal of the Basic Democracies Order, 1959 and the Municipal Administration Ordinance, 1960 ; provided that where in such functioning anything was to be done or any power was to be exercised by the Commissioner such thing shall be done and such power shall be exercised by the Revenue Commissioner."

43. It would, therefore, be seen that by virtue of this rule, the Revenue Commissioner, Sind was to perform the function and exercise the power of the Commissioner under the Basic Democracies Order, 1959 and the Municipal Administration Ordinance, 1960. On 7th April 1972, however, the Governor of Sind superseded all the previous Notifications and the Rules on the subject, including the Notifications of 18th March 1972 and the 20th March 1972, referred to earlier, and made the following Rule under the provisions of sections 6 and 4 (2)(b) of the Sind People's Local Government Ordinance, 1972;

44. "The existing Local Councils including the Municipal Committee referred to fn clause (6) or subsection (2) of section 4 of the Sind People's Local Government Ordinance, 1972 shall until properly constituted Local Councils assume office in accordance with the said Ordinance, function as they were functioning immediately before the repeal of the Basic Democracies Order, 1959 and the Municipal Administration Ordinance, 1960, subject to the condition that all powers, functions and responsibilities hitherto exercised, performed or discharged by the Commissioner in respect of any Local Council shall henceforth be exercised, performed or discharged by Government.

45. Provided that;

(a) the Controlling Authority for the K. M. C. and all District Councils shall be Government ; and

(b) the Controlling Authority for other Municipalities shall be the Deputy Commissioner of the District in which the Municipality is located."

46. It would thus be seen from above that all the powers, functions and responsibilities, exercised, performed or discharged by the Divisional Commissioners, under the provisions of the Municipal Administration Ordinance, 1960, and the Sind People's Local Government Ordinance, 1972 were entrusted to different Authorities, by virtue of the aforesaid Notifications issued under the provisions of the aforesaid two laws. The Notification dated 7th April 1972 is clearly to the effect that all the powers, functions and responsibilities hitherto exercised, performed or discharged by the Commissioner in respect of any Local Council are to be exercised, performed and discharged by the Government. There can, therefore, be no escape from the conclusion that by virtue of rule framed under the Notification dated 7th April 1972 under the provisions of sections 6 and 4(2) (b) of the Sind People's Local Government Ordinance, 1972 the Provincial Government was to be the Controlling Authority of the K. M. C. and was to exercise, perform or discharge all the powers, functions and responsibilities hitherto exercised, performed or discharged by the Divisional Commissioner under the Municipal Administration Ordinance, 1960. The appeals filed by respondents 4 to 10 were pending before the Commissioner of Karachi before the target date, namely, 20th March 1972 and these were, therefore, validity decided by Mr. Rashid Ahmed, Secretary to Government of Sind, Excise, Taxation, Town Planning and Local Government Department. It may be mentioned that the authority of Mr. Rashid Ahmed as the Provincial Secretary in the relevant Department to deal with those appeals on behalf of the Provincial Government was not disputed.

47. It was, however, finally argued in this regard that since the appeals were to be dealt with by the Revenue Commissioner by virtue of Notification dated 20th March, 1973 referred to earlier, these cannot be said to be pending before the Commissioner of Karachi immediately before the 7th April 1972 so as to be dealt with by the Provincial Government by virtue of Notification dated the 7th April 1972. The emphasis is on the interpretation of the word hitherto mentioned in Notification No. S. O. III-1-3/72 dated 7th April, 1972. It is argued that only those powers, functions and responsibilities were to be exercised, performed or discharged by the Provincial Government which were hitherto exercised, performed or discharged by the Commissioner of Karachi. This argument is hardly available, for, it will be noticed that by virtue of Notification dated 7th April 1972 all the previous Notifications specifying the Controlling Authority, including the two Notifications dated 18th March 1972 and the 20th March 1972 were superseded, with the result that the appeals of the respondents which were to be dealt with after 20th March 1972 by the Revenue Commissioner by virtue of Notification No. S. O. III-10-4-72 dated 20th March, 1972 were deemed to be those which were pending before the Commissioner of Karachi by virtue of his powers, functions and responsibilities under the Municipal Administration Ordinance, 1960. The word "hitherto" is defined in the Shorter Oxford English Dictionary in "upto this time", "until now", "as yet", "up to this point". In our opinion, the word "hitherto" used in the context is a very appropriate word that leaves no more for any ambiguity as to the intention the purpose and the object to be achieved, namely, that the appeals such as those in question here were to be dealt with by the Provincial Government.

48. For these reasons, we have no hesitation in rejecting the contention raised by Mr. A. A. Fazeel as to the legal authority vested in the Provincial Secretary to deal with the appeals of respondents 4 to 10.

49. We, however, find great force in the contention of the learned counsel that the reasons which found favour with the Provincial Secretary in interfering with the orders passed in the case earlier are totally extraneous, irrelevant, and are based on facts which find no place on the record. It is, obvious that the Provincial Secretary was greatly influenced by the fact that the petitioners, according to the conclusion reached by him, has obtained the orders mala fidely. The reasons that prevailed with the Provincial Secretary in interfering with the orders passed in the case earlier in his own words are these ;

50. "I find that the order of the demolition of the tenements of the appellants is mala fide inasmuch as it ignores the R C C roof, pillars and beams and has made no mention of the back portion of the building which is in a bad shape and the owners have shown no inclination for demolishing that portion as it appears that they are only interested in the front portion. The appeal is accordingly upheld and the order passed by the Administrator, Karachi Municipal Corporation is set aside."

51. Learned Provincial Secretary obviously failed to notice that action against the respondents 4 to 10 had been taken by the Architect (Control) of the Karachi Municipal Corporation, under section 79 of the Municipal Administration Ordinance, 1960, and not by the petitioners. The portion of the building which was required to be abolished as a dangerous building structure was also demarcated and specified by the Architect (Control). Nothing existed on the record before the Provincial Secretary for the conclusion reached by him that the petitioners had shown no inclination for demolishing the back portion and that they were only interested in the front portion. This attitude on the part of the petitioners which learned Provincial Secretary considered as mala fide is not, at all, supported by evidence on record. There was also no evidence before the Provincial Secretary to support yet another conclusion reached by him that the petitioners had not allowed the tenants to undertake the repairs. This aspect of the case was hardly relevant to the controversy which the Provincial Secretary was called upon to decide. The observations made by him that the entire building is not dangerous, and the said portion can be retained after proper repairs runs counter to the conclusions reached by not only the Administrator of the Karachi Municipal Corporation, who had heard the parties at great length, on appeal, but also the Report of Mr. Z. A. Nizami the Chief Planner, Karachi who was consulted at the instance of the respondents 4 to 10. According to that report "the portions declared dangerous by K. M. C. are in very precarious condition and any mishap can occur at any time causing damage to life and property of the inhabitants and also causing dislocation of Traffic on Bunder Road." Mr. Z. A. Nizami categorically stated further as follows;

52. "It appears that several contradictory certificates have been given by licensed Architects but they cannot be relied upon. The factual position is that the building declared dangerous should be pulled down and if owner wants to construct a new building, he will be permitted to do so according to approved Town Planning and building regulations of K. D. A."

53. In this regard it is pertinent to reproduce the conclusions reached by the Administrator, Karachi Municipal Corporation in the order dated 6th November, 1971 passed on appeal of respondents 4 to 10, which had been challenged before the Provincial Secretary. It may be mentioned that the Administrator, K. M. C. had personally inspected the site in the presence of the parties. This is what he observed :

54. "In view of the peculiar situation arising out of contradictory certificates given by private Architects certifying at the same time soundness of structure and also its weakness, the site was inspected by me personally on 9-10-1571 in the presence of the parties, their counsel, Chief Engineer and Architect (Control), K. M. C. The building appeared to be quite old and had outlived its life. The load-bearing walls have already shown cracks and show visible signs of settlement of foundation. Portions of roof have already collapsed due to failure of roofing timber. Some dangerous portions were also seen supported by props.

55. In view of the observations made by me on the site I am convinced that the positions mentioned in the notice of Architect (C) dated 10-5-71 have rightly been declared to be in dangerous condition, I do not agree with the suggestion that the building can be repaired and made habitable for another 25 years. The view taken by the Architects for the appellants does not hold good inasmuch as the word "repairs" to the building has to be implied in a reasonable sense. The meaning of the word "repairs" cannot be stretched to imply replacements of the portions which have otherwise outlived its life. The fact remains that the building cannot sustain any long with repairs. The condition of the building demands replacement and not repairs."

56. In the face of these findings, it is difficult to conceive how learned Provincial Secretary could have possibly reached the conclusion that the dangerous portion of the building can be retained after proper repairs. We, therefore, find that each and every conclusion reached by learned Provincial Secretary in the impugned order has been based on facts that are erroneous or have no basis on the record. The legal position in such a situation is well settled. In the words of the Supreme Court of Pakistan in Government of Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD1969SC14) at p. 31 : "Action taken upon extraneous or irrelevant consideration is also not action in accordance with law. Action taken upon no grounds at all or without proper application of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner." These observa tions fully apply to the impugned order passed by the Provincial Secretary in this case, and we, therefore, declare it as illegal and without lawful authority.

57. We may, in the end, mention that Mr. Sharaf Faridi, learned Counsel for respondent No. 4 raised the contention that even if the impugned order passed by the Provincial Secretary is held to be without lawful authority, then the order passed by the K. M. C. which will revive, is itself illegal and without lawful authority, and the relief should not, therefore, be granted to the petitioners. The argument precisely is that since the respondents 4 to 10 are the tenants, they cannot be ejected except under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, in other words, it is argued that the provisions of section 79 of the Municipal Administration Ordinance, 1960 are impliedly repealed by section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959.

58. It is hardly open to respondents 4 to 10 to challenge the order passed by the K. M. C. in these proceedings, but since an interesting question of law has been raised, we may as well deal with it.

59. Section 79 of the Municipal Administration Ordinance, 4960 reads as follows;---

60. "79.-(1) If any building or anything fixed thereon be deemed by the Municipal Committee to be in a ruinous state or likely to fall or in any way dangerous to any inhabitant of such building or of any neighbouring building or to any occupier thereof or to passers-by, the Municipal Committee may by notice require the owner or occupier of such building to take such action in regard to default, the Municipal Committee may be taken the necessary steps itself, and the cost incurred thereon by the Municipal Committee shall be deemed to be a tax levied on the owner or occupier of the building under this Ordinance.

(2) If a building is in a dangerous condition, or otherwise unfit for human habitation, the Municipal Committee may prohibit the occupation of such building till it has been suitably repaired to the satisfaction of the Municipal Committee."

61. On the other hand, section 13 of the West Pakistan Urban Rent Restriction ,-.Ordinance, 1959 is in these words;

62. "13. (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.

(2) A landlord who seeks to evict his tenant shall apply to the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that;

63. It is firstly to be noticed that the Municipal Administration 'Ordinance 1960 is designed to cover a totally different field of legislation than the one covered by the West Pakistan Urban Rent Restriction Ordinance, 1959. The provisions of the former are in the public interest" as observed in Shaik Ata Elahi v. Municipal Committee, Sialkot (P L D 1961 S C 157) whereas the latter enactment governs the relationship of landlord and tenant. Its object as reflected in its preamble is to restrict the increase of rent of certain premises within the local limits of urban areas, and the eviction of tenants, therefrom. Not only that the fields of legislations of these two enactments are different, but these are designed to achieve totally different objects and purposes. Thus, the principle upon which the doctrine of implied repeal is based is hardly attracted. In order to apply this principle, it is firstly to be seen if the former statute said to be repealed by the subsequent statute governs the same field of legislation. Unless the two pieces of legislation were so plainly repugnant to each other that effect cannot be given to both at the same time, the principle of repeal by implication will not be attracted, for, the presumption against the intent to repeal by implication rests upon the assumption that the legislator enacts laws with the full knowledge of all existing laws pertaining to the same subject so that the failure to add a repealing clause, indicates that the intent was not to repeal any existing legislation. The Courts do not look with favour upon implied repeals, and the presumption is always against the intention of the Legislator to repeal legislation by implication. In Pahlwan Khan v. J. F. Elahi (P L D 1962 Lah. 751), the Full Bench observed that "when a latter statute dealing with the same subject, the Court may assume that the earlier statute had to the extent of inconsistency been repealed".

64. The test for presuming implied repeal of earlier by the subsequent law has been laid by Hamoodur Rehman, J. (as be then was) in Abul A'la Maudoodi v. Government of Pakistan (P L D 1964 S C 673) in the following words;

65. "A great deal of argument has been advanced as to the tests to be employed for determining in what circumstances repeal by implication takes place. One of the tests suggested is that such repeal can only be implied where it is clearly not possible for both laws to be obeyed. This may be a good test in most cases, but it does not apply in all cases. It may be possible in some cases for both laws to be obeyed and yet there may be such repugnancy between the two as would entitle the Courts to hold that there has been as implied repeal. If the inconsistency covers the whole field of legislation, the test suggested may well be sufficient for, the mere existence of two sets of contrary provisions would naturally exclude one. But where the inconsistency does not cover the whole field as in the present case, it may be necessary to examine and contrast the provisions of the two statutes in more detail in order to discover intent. If one enactment makes or acts upon as lawful that which the other makes unlawful, or if one enactment makes unlawful that which the other makes or acts upon as lawful, if so the two must be held to that extent to be inconsistent even though it may be quite possible to obey both simply by not doing what is declared by either to be unlawful.

66. No doubt, the Courts should not be too astute in discovering such inconsistency, for such inconsistency is not to be readily inferred; but where the co-existence of the two sets of provisions would palpably be destructive of the object for which the later statute was passed, the earlier must be deemed to have been impliedly repealed to the extent of the inconsistency. Repeal by implication is merely the consequence of contradictory or inconsistent legislation to which the Courts must give effect if the inconsistency cannot reasonably be reconciled."

67. This point has been dealt with by Crawford in "Statutory Construction" in the following words at page 633;

68. "Can a test be provided by which irreconcilable inconsistency or repugnancy can be easily ascertained? It has been suggested above that such a condition exists when the two statutes cannot stand together. Such a test seems generally sufficient where the pre-existing statute is repealed in its entirety. But where a partial repeal occurs, a different test must be applied, is not a workable one announced in People v. McNulty (9 N Y S (2) 380) ?

69. "The determining consideration must be whether on comparison of the subject-matter of the two statutes, the one is fairly to be regarded as a revision of the other".

70. If the later enactment seems clearly intended to supplant the former law, to that extent, even though the old law, in its entirety, is supplanted, irreconcilable inconsistency or repugnancy must exist. Naturally, therefore, the subject-matter of the two enactments is an indispensable consideration.

71. Merely because a later enactment may relate to the same subject-matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the latter, since the new law may be cumulative. An implied repeal will not take place under these circumstances, unless the two statutes are inconsistent and irreconcilable. or unless the new statute is clearly intended as a complete substitute for the old one. The Court will endeavour to give both effect, if possible, in other words, there must be some expression of the legislative intent to repeal the existing statute. The two statutes must relate to the same subject -matter and have the same purpose."

72. Applying these principles, it can hardly be argued that the power conferred upon the Municipal Committee by section 79 of the Municipal Administration Ordinance, 1960 cannot be exercised in relation to tenants of the F building which is deemed to be in a ruinous state or likely to fall or is in any way dangerous to any inhabitant of such building or any occupant thereof or to passers-by because of the protection granted to the tenant by virtue of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. A tenant no doubt enjoys the protection granted to him by virtue of section 13 of the West Pakistan Urban (tent Restriction Ordinance, but it cannot be said that be is not liable to mischief of the provisions of the other laws made by the Legislature in respect of totally different fields of legislation, for example, the Municipal Law, under which the competent authority is empowered to demolish the entire building, which action affects not only the rights of the tenant but also those of the landlord. We therefore find no force in the contention that the provisions of section 79 of the Municipal Administration Ordinance, 1960 in so far as it protects tenants from ejectment except by means provided by it.

73. We might add that Mr. A. A. Fazeel resisted the argument advanced by Mr. Sharaf Faridi on the ground that the provisions of section 79 of the Municipal Administration Ordinance, 1960 are now incorporated in paragraph 3 of list under the heading "Building Control" of Schedule 2 to the Sind People's Local Government Ordinance, 1972, and therefore, the plea advanced by Mr. Sharaf Faridi cannot arise, for, the West Pakistan Urban Rent Restriction Ordinance, 1959 is obviously an earlier piece of legislation. The argument advanced by Mr. A. A. Fazeel cannot be said to be without force, but we do not wish to consider it in details for we have found no substance in the plea raised by Mr. Sharaf Faridi as formulated by him.

74. The result, therefore, is that this petition is allowed with costs.

75. KHUDA BAKHSH MARRI, J .-I agree.

76. S. Q. Petition allowed.