Messrs Haji KHUDA BUX vs KARACHI BUILDING CONTROL AUTHORITY and others

ORDER

1. ' The brief facts relating to the dispute are that the plaintiff is a tenant for the last 45 years of Rooms Nos.20, 21 and Cabin No,24 situated on the 1st Floor of Bandukwala Building, situated on Plot No,R-5, Railway Quarters, I.I. Chundrigar Road, Karachi, owned by National Motors Limited (defendant No,2 herein). Plaintiff alleges that defendant No,2 has been harassing him and other tenants of the building and asking them to vacate the premises in their occupation on the ground that the building is old and has become dangerous for use and occupation. In this respect defendant No,2 first wrote to the plaintiff to vacate the premises by their lawyer's letter dated 19-3-1973 which was replied by the plaintiff by their letter dated 10-4-1973 stating that according to their Architect's opinion the alleged portion was easily repairable. Thereafter, on 7-4-1985 plaintiff again received another letter from defendant No,2 asking them to vacate the premises as the same were no longer repairable. This letter was replied by plaintiff's lawyer by his letter, dated 28th April, 1985 wherein he asserted that the roof of the building required major repairs which the landlord (defendant No,2) had not carried out in spite of repeated requests and reminders in this behalf thereby intentionally and deliberately avoiding necessary major repairs of the roof to create a false ground for getting the premises vacated. It is further alleged that on 28-10-1996 the plaintiff found a Karachi Building Control Authority (KBCA) Notice dated 27-10-1996 pasted on the wall of his office which reads as follows:-- "KARACHI BUILDING CONTROL AUTHORITY No, KBCA/KDA/DCB XVII/DR-11/96 Dated 27-10-1996 ' UNDER SECTION 14 OF THE SINDH BUILDING CONTROL ORDINANCE, 1979 AND AMENDED UPTODATE.

2. 48 Hours Notice ' To ' Mr.Omer/Occupant/Tenants 4/2, Room Nos.20, 21, 22, 23 and 24 (All on 1st Floor) RY-5, Bandukwala Building, Karachi.

3. ' SUBJECT: BUILDING ON PLOT NO.4/2 RY-5, RAILWAY QUARTERS, I.I. CHUNDRIGAR ROAD, KARACHI.

4. ' Whereas in the opinion of the Authority, the following structure standing on the abovementioned plot are "RUINOUS" OR DANGEROUS", beyond the repair.

5. ' DESCRIPTION OF STRUCTURE You are, therefore, hereby required:--

(1) Forthwith to remove Rooms Nos.20, 21, 22, 23 and 24 (All on 1st Floor)

6. (2 And forthwith to carry out repairs as immediately.

7. ' Failing which the Authority shall cause the same to be done at your risk and cost without further notice.

8. 27-10-1996.

9. (Sd.)

10. DY. CONTROLLER OF BUILDINGS, ZONE XVII.

11. ' Copy forwarded for Notice to: M/s. National Motors Ltd."

12. ' Consequently the plaintiff filed the present suit seeking a declaration that the aforesaid Notice dated 27-10-1996 is illegal, without lawful authority, based on mala fide and is of no legal effect.

13. Along with the suit the plaintiff also filed an application under Order 39, Rules 1 and 2 read with section 151, C.P.C. For Temporary Injunction to restrain K.B.C.A. From demolishing the premises in dispute. After notice to the parties, the Court granted ad interim Injunction to the plaintiff which is continuing. K.B.C.A. And defendant No,2 filed their counter-affidavit and their written statement denying and contesting the allegations of the plaintiff. The contesting parties have also filed their proposed issues and exchanged copies of the same. Upon reading the pleadings and issues filed by the parties it appears that whole suit can be disposed of on one question of law which is as follows:-- 'Whether the Notice of defendant No,1 bearing No, KBCA/KDA/ DCB/XVII/DR-11/96, dated 27-10-1995 is illegal, mala fide and of no legal effect?"

14. ' I have gone through the pleadings of the parties along with the documents filed by them, considered the arguments advanced and my finding is as follows:-- ' Section 14 of Sindh Building Control Ordinance, 1979 (SBCO) reads as follows:-- "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 of demolition of the whole or part of the building;

(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. It is a universal principle of law that no person should be condemned unheard and that no order adverse to the interest of any person should be passed without giving him an opportunity of explaining his position. This principle is to be read in every statute and applied in its enforcement.

16. The Legislature being aware of the general attitude and tendency of executive authority to pass orders without giving a hearing to parties whose interest are adversely affected normally include a provision in all statutes requiring the executive authority to provide a hearing to all persons before passing any order against their interest. This is exactly what the Legislative did. To restrain the officers of K.B.C.A. From acting capriciously, whimsically or with ulterior motives, by an amendment made in 1984, the Legislature added a proviso to section 14 of Sindh Building Control Ordinance, 1979 which clearly states:--- "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."

17. The only notice issued by K.B.C.A. Under section 14 of Sindh Building Control Ordinance relating to the demolition of the dangerous building in the present case is the one dated 27-10-1996 impugned in this Suit which directed the plaintiffs to forthwith remove himself from the premises failing which the Authority shall cause the same to be done at the risk of the plaintiff without further notice. Under the proviso reproduced above, K.B.C.A. Was required to give an opportunity of hearing to the person who was likely to be affected before taking any action. Mr. Muhammad Iqbal Memon has not been able to show any document to prove that K.B.C.A. Issued such a notice to the plaintiff to show cause why the demolition of the premises be not done. This was a gross violation of law and principles of natural justice. K.B.C.A. Could not take any action for demolition of the premises in question without giving the plaintiff an opportunity of being heard. Therefore, the K.B.C.A. Notice dated 27-10-1996 requiring the plaintiff to remove himself from the specified premises has been issued in clear violation of section 14 of Sindh Building Control Ordinance, 1979 and the principles of natural justice.

18. ' In view of this position K.B.C.A. Notice dated 27-10-1996 is declared to be illegal, without lawful authority, mala fide and of no legal effect and K.B.C.A., their agents, servants or any person acting under or pursuant to the said order are restrained from removing the plaintiff from the premises in dispute being Rooms Nos.20,21 and Cabin No,24 or any part thereof situated on 1st Floor Bandookwala Building on Plot No,RY-5, I.I. Chundrigar Road, Karachi.

19. ' It is, however, clarified that K.B.C.A. Is at liberty to take action under section 14 of Sindh Building Control Ordinance, 1979, on the ground of it being dangerous after following the procedure specified therein.

20. ' The suit is, thus, disposed of with the above observation with no order as to costs. Consequently, Civil Micellaneous Application No,6014 of 1996 has become infructuous and is accordingly dismissed.