' ANWAR ZAHEER JAMALI, J.---The petitioner Muhammad Hussain claiming himself to be the owner of ground floor of building over site G-1 and G-2 admeasuring 53, 24 and 42 sq. Yds. Over Plot bearing sheet No.O.T/4. Survey No.33, Old Survey No.A-4/48 Old Town Quarters, Karachi, excluding 16.67 sq. Yards portion, which is owned by respondent No.8 along with the first floor, has preferred this petition with the following prayer:-- "It is most respectfully prayed that this honourable Court may be pleased to direct the respondents Nos.1 to 7 to perform their duties in accordance with the law and demolish, remove of the old existing dangerous declared building/structure situated at Plot No.33-0-T/4. Old Town Quarters, Karachi and direct the respondents Nos.8 and 9 to cooperate in the lawful functions of the respondents Nos.1 to 7."
2. Earlier when this petition was taken up for hearing before another Bench of this Court on 1-6- 2004 after hearing learned counsel for the petitioner and respondents 2, 3 and 4 it ' was finally disposed of with the following observations:-- "Subsequently a meeting was called by the Chief Controller of Buildings on 6-4-2004 and attended by the petitioner, respondents Nos.8 and 5. Thereafter the building was re-inspected and it was found that the dangerous portion no longer existed and now "the matter is shifted as unauthorized construction rather than the dangerous building which will be dealt accordingly. We are constrained to hold that the attitude adopted by respondent No.2 is patently mala fide and cannot be sustained on any hypothesis. In the first instance once it had decided that the building required demolition and not merely partial repairs, it is impossible to see how the conclusion to the effect that "the dangerous part" had been demolished was reached. Secondly assuming that respondent No.8 as a tenant in the building had acquired some legal right or interest, one fails to see how the respondent No.2 could arrogate itself the power to protect his interest. Thirdly the petitioner's allegation as to the respondent No.5 being personally interested in the matter, is clearly corroborated by the counter-affidavit filed on behalf of respondents Nos.2 and 3 Fourthly assuming that the building was no longer dangerous but it became unauthorized one fail to see how the responsibility of the respondent No.2 to demolish unauthorized building can be avoided. The petitioner's father has apparently made some allegation of being disgraced humiliated. Normally one would have ignored such allegations without corroboration, we are constrained to observe that in view of the over all conduct of the respondent No.2 it could not be brushed aside.
' Reiterating that the action is not merely illegal but also mala fide oh its very face, we direct the respondent No.2 to demolish the aforesaid building within three months. The petitioner however, is willing to pay costs of the demolition. A copy of this order would be communicated to the City Nazim and Chief Controller of Building directly. The petition stands disposed of accordingly.
3. However, vide order dated 17-8-2004, above order was recalled for the sole reason that at time no opportunity of hearihg was provided to respondent No.8, who is admittedly one of the co-owner of the disputed building.
4. On 20-8-2004 and today we have heard learned counsel for the parties at, length and also perused the report of the Technical Committee of K.B.C.A. Dated 28-4-2004, which was called by this Court vide its order dated 20-8-2004. Relevant portion of such report reads as under: "Previously some portion collapsed then major dangerous portions demolished.
' Remarks: Recently Vodla Syed Volunteer removed dilapidated remaining portion in compliance of the decision by C.C.O.B. In a meeting among the parties to solve the long disputes.
' Recommendation of the Technical Committee.
' Dangerous portions of original stone masonry building have been removed already. Present R.C.C.
Portions (remnants) may be checked and if unauthorized necessary action may be taken."
5. After hearing learned counsel for the parties we have noticed that in both situations i.e. Either the building is dangerotis or its construction is illegal and unauthorized it is the duty of respondent No.2 to carry out its legal obligation and demolish such dangerous or unauthorized construction.
6. Faced with the above situation, contention of Mr. Farooq Hashim, learned counsel for respondent No.8 that since the prayer made in the petition is only with regard to demolition of dangerous construction therefore, no relief can be granted to the petitioner in case of unauthorized construction has no force. In both the situations as also observed in the earlier order dated 1-6- 2004, this Court is competent to issue necessary directions to the concerned functionaries to act in accordance with law to avoid any abuse of the process of law and making it a force. To justify his view learned counsel for respondent No.8 has placed reliance upon the case of Noor Muhammad and another v. Building Control Authority and 2 others 1992 CLC 729, but we have not been able to find any relevancy of this case in the different facts and circumstances of case in hand. Moreso, for the reason that the counsel for the respondent No.8 has failed to place any authentic document on record, such as approved building permission for reconstruction from the then competent authority to show that the existing purported R.C.C. Construction over the disputed property was raised by respondent No.8 before the promulgation of Sindh Building Control Ordinance, 1979. The position of unauthorized construction further finds support from the fact that the notice for declaring the disputed building dangerous was published in the year 1999 and similar notices were also served on the concerned parties during the same year but in response, no such plea was taken by respondent No.8 at that time. The copies of notices dated 17-5-2004 and 28-6- 2004 placed on record by the K.B.C.A. Further lend support to the case of the petitioner that the existing construction whether dangerous or unauthorized is liable to be demolished by them.
7. In addition to the above, we are also persuaded to mention here that the observations given by this Court in its order dated 1-6-2004 about the conduct of respondents Nos.2 and 3 are apt and befitting to their conduct.
8. Mr. Raja Sikandar Khan Yasir, learned counsel for respondent No.9, who is stated to be the owner of second floor of the disputed building, has rightly submitted that being dangerous second floor of the disputed property has already been demolished and petitioner being owner of ground floor is also keen for demolition of the remaining structure declared dangerous but it is only respondent No.8, the owner of first floor along with 16.67 Sq. Yds. Of ground floor, who after issuance of notice by K.B.C.A., declaring disputed building as dangerous, has carried out some illegal construction, and now under the cover of such construction trying to avoid demolition. He, therefore, urged for grant of relief claimed in this petition.
9. For the foregoing reasons we allow this petition and direct respondent No.2 to demolish the aforesaid disputed building within two months. Learned counsel for the petitioner has volunteered on behalf of petitioner to pay demolition charges, which may be recovered from him. It may, however, be observed that even in case the petitioner fails to bear such charges of demolition, the demolition work shall not be delayed on such pretext.