' TANZILUR REHMAN, J.-The case of the petitioners is that they are the tenants of respondent No, 2 of Shops Nos, 1, 2 and 3 situate on Plot No, C/52, Block No, 17, Federal 'B' Area, Karachi, since 1967-68.
The dispute arose when the respondent No, 2 wanted to take possession of the shops forcibly which led the Chowkidar of the petitioners to file a report on 30-7-1979 against the same in police station under section 448, P. P. C. The respondent No, 2, having failed to get the petitioners evicted from the shops in question, was successful in collusion with respondent No, 1 in getting the notice dated 9-12-1979 and the order 17-12-1979 issued from the Master Plan Department of the Karachi Development Authority, an Authority appointed under section 4 of the Sind Building Control Ordinance, 1979. This notice and the order have been assailed in this petition.
2. Mr. S. Ansar Hussain, the learned counsel for the petitioners raised the following contentions :-
(i) No action could be taken under the Sind Building Control Ordinance, 1979, as the shops have been constructed in 1967-68.
(ii) The Authority is vested with the power of demolishing the building as provided under section 14 of the said Ordinance, which cannot, however, be invoked to demolish the shops in questioning.
(iii) That the notices have been issued by the respondent No, 1 in collusion with respondent No, 2, the landlord.
3. The learned counsel for the petitioners produced, inter alia, Form P. T. I. Of the property in question. Four shops have been shown therein as constructed vide Assessing Authority's order dated 31-12-1970. This form P. T. I. Was sufficient to prove the existence of the shops since 1970 but the learned counsel for the respondent No, 2 invited our attention to paragraphs 5 and 6 of the Counter Affidavit of petitioner No, 1 filed in the Court of XVII, Civil Judge, Karachi in Civil Suit No, 2999/1979 wherein the petitioner admitted that the petitioners were the tenants of the respondent No, 2 in respect of shops previously existed and the respondent No, 2 then constructed 3 shops and handed over possession of the same to them. It was further stated that the respondent No, 2 had demolished the old shops and broken open the locks of the new shops and removed the goods of the petitioners with the result that the petitioners lodged a report with the police. This admission belies the contention of the petitioners that the shops in question were existing as long before as 1967-68. It appears that four shops which respondent No, 2 describes as sheds, were constructed in or about 1970 as shown in form P. T. I. But they were demolished and new construction of shops was raised in or about June 1979, as alleged by the respondent No, 2, which finds support from the police report having been lodged on 30-7-1979. We would, therefore, repel the first contention and hold that the shops in question are not the shops which were constructed in or about 1970. The provisions of the Ordinance V of 1979 are, therefore, attracted to the construction in question.
4. So far as the second contention is concerned it is quite relevant to reproduce the impugned notice dated 9-12-1979 and the order dated 1742-1979 issued by respondent No, 1 to respondent No, 2 with copy forwarded to the petitioners. The notice reads as under :- "Whereas you have erected/re-erected or erecting/re-erecting the following building structures on the above mentioned plot without sanction of the Authority as required under the Ordinance in contravention of the sanctioned building plan.
'Description of building/structures Unauthorised construction of shops on residential plot.
' Now, therefore, you are hereby required (i) forthwith to stop further erection/re-erection of the building structure, failing which all persons engaged in any work of erecting or re-erecting the building shall be removed thereform.
(ii) Within seven days from the receipt hereof to submit building plan/ completion showing the building/structures erected/re-erected, proposed to be erected/re-erected together with as application for sanction thereto for consideration of the Authority.
(iii) Within seven days from receipt hereof to show cause personally and or writing why you should not be required to demolish the said builing structures wholly or partly.
(iv) and within seven days also to show cause personally and or in writing why you should not be prosecuted for the offence committed by you in erecting or re-erecting the said building structure.
(Sd.)
9-12-1979 Asstt. Controller of Buildings.
5. The above notice was followed by an order dated 17-12-1979 to respondent No, 2 with copy forwarded to the petitioners requiring the demolition of the building. It reads as under :- "Wheras on examination and through consideration, the Authority has decided that the following building structures standing on the above mentioned plot are not in conformity with the rules, bye laws, Karachi Development Plan or the Scheme in Force.
' DESCRIPTION OF BUILDING STRUCTURE Unauthorised construction of shops on residential plot.
' Now, therefore, you are hereby required, within 24 hours from receipt hereof.
(i) to demolish the Building/structures described above failing which the same shall be demolished through the agency of the Authority at your risk without further notice.
(ii) .
(Sd.)
17-12-1979 Asstt. Controller of Buildings, Zone III
6. On examining the provisions of Sind Building Control Ordinance, 1979 as to the power of inspection of buildings under construction and to issue necessary directions by the Authorised Officers including powers of demolition of the buildings, we noticed that there are provisions of sections 11 and 14 which deal with them.
7. Since the above notices did not mention any section of the Ordinance under which they were issued, we called upon Mr. Yaqub Baig, the learned counsel appearing for respondent No, 1, to point out the relevant section of the Sind Building Control Ordinance, 1979 (No, V of 1979) under which the impugned notices have been issued by the Authority. He stated that the notices have been issued under section 11(2) of the Ordinance.
8. The provisions of section 11 subsection (2) of the Sind Building Control Ordinance, 1979 envisage that if in the opinion of the Authorised Officer, the construction of any building is not in accordance with the plan or the specifications approved by the Authority or any material used in the construction is of sub-standard or is not of the quality or type mentioned in the advertisement under section 12, he may by order in writing issue any direction to the Builder or he may require that the construction be suspended until further direction is issued either by him or by the Authority, or, he may order that the construction which in his opinion is defective be demolished at the cost of the builder. On reading the above section, as such, we expressed our doubt that in a case where unauthorised construction of shops on a residential plot is alleged, as in the present case, no power of demolition of the construction was available to the Authority under section 11(2) of the Ordinance. Mirza Yaqub Beg, the learned counsel for the respondent No, 1 thus argued that the words 'any direction' include demolition also. Alternatively, he submitted that the construction can be demolished if, in the opinion of the Authorised Officer, it is defective. While interpreting the word `defective' he argued that it would also mean defective in law. But, we are unable to agree with the learned counsel. In the first instance, the scope of words any direction' cannot be widened so as to include the power of issue in direction to demolish the construction as the power of demolition has been specifically provided in the section only when the construction is found to b defective. The word 'defect' has also been used in section 7 which postulates either an architectural and planning defect or the defect in the construction of the building itself. In view of this meaning of the word 'defect' as descernible from the provisions of section 7 of the Ordinance itself it cannot B be argued that the word 'defective 'used in section 11(2) would also men and include a legal defect, such as raising unauthorised construction of shops on residential plot.
9. It may be also stated that section 14 of the Ordinance which authorises demolition of building deals with quite a different situation. It, is fact, categorises a particular type of building which is likely to collapes or is so dangerous as to cause harm to human life or property. The building may, in that eventuality, be ordered to be demolished by the Authority, if the oceupier fails to vacate the building within the period specified in the notice issued under section 14 of the Ordinance.
10. The learned counsel for the respondent No, 1, being faced wit this situation, next argued that the K. D. A. Had power to demolish such unauthorised construction under Article 72 of the President's Order V of 1957 but this plea also does not hold good, as the Authority under the Sind Building Control Ordinance, 1979 and the Authority under Order of 1957 are two separate and distinct Authorities and, thus, the notice an order purported to have issued under section 11 subsection (2) of the Ordinance V of 1979 cannot be attributed to have been issued and Article 72 of the K. D. A.
Order V of 1957, even if the Master Controt Department is a Department of the Karachi Development Authority.
11, The learned counsel for respondent No, 1 lastly contended that an alternate remedy was available to the petitioners under 16 of the said Ordinance, which the petitioners having not availed the relief under our constitutional jurisdiction should be refused to them. It is correct that in the present case it is not only that an alternate remedy is available to the petitioners but the same is equally expeditious in as much as the appeal filed under section 16 of the Ordinance is to be disposed of within one account as provided in section 17 of the Ordinance, but the Authority having act in excess of its jurisdiction it will not be incumbent upon the petitioners t first avail the remedy provided Sin the Statute as it seems now to be the settled principle that if the impugned order is found to be in excess o jurisdiction of the Authority passing the order it will not debar the aggrieve party from challenging its legality in the High Court which will not normally refuse to exercise its discretion under its Constitutional jurisdiction without compelling the aggrieved party to exhaust the remedies available to him in the Statute. For this view we are supported by our Supreme Court decisions in Syed Ali Abbas and others v. Vishin Singh and others (1) and Ali Muhammad V. Hussain Buksh and others (2).
12. We, would, therefore, hold that the impugned notice/order have been issued in excess of jurisdiction of the Authority conferred on it under section 11(2) of the Sind Building Control Ordinance, 1979 and as such we declare them as issued without lawful authority and of no legal consequence.
13. In view of the fact that we have held the impugned notice/order for demolition of the construction of shops as issued without lawful authority, we do not feel the necessity of going into the question of collusion, as alleged.
14. In result, we allow the petition with no order as to costs.
(1) PLD 1967 SC 294 (2) L D 1976 SC 37