1. ' SALMAN TALIBUDDIN, J.---The above matter was fixed in Court on 10-4-2009 for orders on the Nazir's report dated 12-2-2009 and for hearing of C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6419 of 2008 and 9150 of 2007.
2. ' On 10-4-2009 learned counsel for the parties stated that they had received a copy of the Nazir's report and .The same was taken on record. Learned counsel for the parties were heard and orders were reserved on C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6419 of 2008 and 9150 of 2007. During the course of the hearing certain questions were also put by the Court to Mr. Malik, the defendant No, l's representative. These questions and Mr. Malik's response are set out below.
3. ' The applications listed above arise out of the plaintiff's suit, which was instituted on 3-11-2007 by fifteen persons against Mr. Lal Taj Khan.
4. ' The plaintiffs' have alleged that they are tenants in respect of various commercial and residential premises in the building known as Ismail Manzil which is owned by Mr. Khan. The building is constructed on a plot (bearing survey No, GK 1/23 admeasuring 707 square yards) situated at Harris Road, Rachiram Thakardas, Ghulam Hussain Quarters, Karachi.
5. ' According to the plaintiffs, they acquired tenancy rights from time to time from the previous owner of Ismail Manzil against payment of pugree/goodwill. At present they allege to be tenants in occupations of 23 flats and two shops. Details of the facts and shops, and the monthly rent said to be paid by the plaintiffs to the present owner are set out in paragraph 1 of the plaint.
6. ' The plaintiffs assert that after purchasing Ismail Manzil Mr. Khan did not issue the notice required by section 18 of the Sindh Rented Premises Ordinance, 1979 (the "SRPO") to them.
7. ' Section 18 of the SRPO provides protection to tenants in that a tenant who does not receive the section 18 notice of change of ownership shall not be deemed to have committed a default in payment of rent for the purpose of section 15(2)(iii) of the SRPO. Nothing, however, turns on this alleged failure since the plaintiffs alleged that they have been paying rent to Mr. Khan regularly after coming to know of the change in ownership.
8. ' According to the plaintiffs Mr. Khan accepted rent from them for some time but then refused to do so.
9. ' The plaintiffs also assert that Mr. Khan is in occupation of three flats on the first floor of Ismail Manzil and started to demolish portions of the building in his possession one week prior to the institution of the suit. According to the plaintiffs this was done in order to harass them into vacating their tenements.
10. ' The plaintiffs assert that they are in occupation of the flats together with their families including minor children. Claiming protection under the SRPO, the plaintiffs submit that they cannot be evicted except in accordance with law.
11. 'The only documents attached to the plaint are copies of fifteen rent receipts (Annexures P/1-A to P/1-0) in respect of the premises said to be in the occupation of the plaintiffs, and copies of money order coupons dated 1-10-2007 and postal receipts (Annexures P/2-A to P/2-V) which according to the plaintiffs evidence tendering of rent after Mr. Khan refused to receive it from them.
12. ' The plaintiffs further alleged that the money orders were returned undelivered and state (in Paragraph 5 of the plaint) that the "plaintiffs are now initiating proper legal steps for the deposit of rent in Court".
13. ' On the basis of the foregoing, the relief sought in the suit is:
(a) A declaration that the plaintiffs, being lawful tenants of their respective tenements, cannot be dispossessed without due process of law;
(b) A permanent injunction restraining the defendant (Mr. Khan) from dispossessing the plaintiffs from their respective tenements and from demolishing Ismail Manzil or any part thereof;
(c) Any other relief deemed fit and proper in the circumstances of the case; and
(d) Costs.
14. ' Despite service through the bailiff and subsequently by pasting as well as publication, the defendant Mr. Khan has not entered appearance in these proceedings ' In view of the relief sought by the plaintiffs and the position that emerged after the K.B.C.A applied to be made a party it =will be instructive to see how the case has developed since its inception.
15. ' On the same day that the suit was instituted the plaintiffs filed an application under Order. XXXIX Rules 1 and 2 read with section 151, C.P.C. (C.M.A. 9150 of 2007) seeking ad interim orders restraining Mr. Khan and persons acting on his behalf from dispossessing the plaintiffs and/or demolishing Ismail Manzil or any part thereof.
16. ' C.M.A. 9150 of 2007 was put up for orders on 26-11-2007 on which date notice was observed to be issued to Mr. Khan and the parties were directed to maintain status quo. This order has continued to be in force throughout.
17. ' On 11-2-2008 an application under Order I Rule 10, C.P.C. (C.M.A. 1069 of 2008) was filed on behalf of the legal heirs of Ms. Nasim Akhtar (an alleged tenant who was not one of the original plaintiffs) seeking to be joined as plaintiffs in the suit. On 6-10-2008 this application was allowed and the legal heirs were allowed to be joined as plaintiffs Nos. 16, 17, 18 and 19.
18. ' On 21-5-2008 another application under Order I Rule 10, C.P.C. (C.M.A. 4781 of 2008) was filed in this suit, this time by the K.B.C.A seeking permission to be joined as a defendant. The ground on which the K.B.C.A moved this application was that its Technical Committee for Dangerous Building had declared Ismail Manzil as a dangerous building and it was necessary for K.B.C.A to become a party in order to obtain the Court's permission to demolish Ismail Manzil.
19. ' While C.M.A. 4781 of 2008 was pending determination, on 4-6-2008 K.B.C.A moved an-application under Order XXXIX Rule 4 read with section 151 C.P.C. (C.M.A. 6269 of 2008) seeking a modification of the status quo order to the extent that the K.B.C.A may be permitted to take action as per law and remove the dangerous building.
20. ' The grounds for this application were said to be the fact that Ismail Manzil was constructed over 150 years ago; that it had been inspected by K.B.C.A officials on an application moved by the owner on 23-6-2007 and found to be unsafe for habitation; that the building was thereafter also inspected by the K.B.C.A's Technical Committee on Dangerous Buildings which had declared the building as ruinous, dilapidated and dangerous; that the building could collapse at any time; and that the rains which were expected at any time posed additional danger to the building and the safety of the occupants.
21. ' Further orders directing the utility companies to remove/ disconnect their services to Ismail Manzil as well as a direction to the T.P.O. Saddar Town to provide sufficient police force for evicting the occupants of Ismail Manzil and controlling any law and order situation that may arise at the time of demolition were also sought.
22. ' The following documents were attached to the affidavit in support of C.M.A. 6269 of 2008:--
(a) Copy of a Pro forma for Declaring a Building as Dangerous which suggests that the Technical Committee for Dangerous Buildings consisting of four persons (whose signatures appear on the reverse of the Pro forma) inspected Ismail' Manzil on 16-8-2007 and declared it dangerous on the ground that the entire building was in a dilapidated and ruinous condition;
(b) Copy of a notice dated 1-9-2007 issued under section 14 of the Sindh Building Control Ordinance, 1979 by the Deputy Controller of Building, Zone II, Saddar Town, K.B.C.A, to the owner/occupants of Ismail Manzil requiring them to forthwith remove the entire building within 48 houRs, According to a statement on the bottom of the notice, a copy was also pasted on the site for the information of the owner/tenant/occupant;
(c) Copy of a similar notice dated 13-9-2007 issued under section 14 by the Deputy Controller of Building-I, Saddar Town, K.B.C.A, to the owner/occupants of Ismail Manzil. A statement that a copy was also pasted on the site for the information of the owner/tenant/occupant of Ismail Building is also contained in this notice;
(d) Copy of the another section 14 notice dated 28-4-2008 issued by the Deputy Controller of Buildings-III, Saddar Town, K.B.C.A, to the owner/occupants of Ismail Manzil to forthwith remove the entire building. As in the case of the previous notices, this notice stated that the building was dangerous and beyond repair and also specified that failure to comply shall result in the removal by the K.B.C.A at the risk and cost of the owner/occupants of Ismail Manzil;
(e) Copy of the work permit dated 2-5-2008 issued by the K.B.C.A to Messrs Khan Muhammad, Demolition Contractor, to carry out the demolition of Ismail Manzil within one month;
(f) Copy of the K.B.C.A letter dated 30-5-2008 addressed to the Town Police Officer, Saddar Town requesting police assistance for the purpose of ejecting the occupants of Ismail Manzil and to control any ensuing law and order situation that might emerge;
(g) Copy of the K.B.C.A letter dated 3-6-2008 addressed to the Town Police Officer, Saddar Town requesting similar assistance; and
(h) Eight photographs of Ismail Manzil showing its current dilapidated condition.
23. ' C.M.A. 6269 of 2008 was put up in Court on 4-6-2008 on which date notice thereof was ordered to be issued for 10-6-2008.
24. 'Before the next date for hearing (10-6-2008) K.B.C.A moved two new applications on 6-6-2008.
25. One was moved under section 151, C.P.C. (C.M.A. 6362 of 2008) seeking permission to immediately demolish Ismail Manzil under the Nazir's supervision. The reason for seeking urgent intervention was that some portions of Ismail Manzil had fallen down recently and the building posed an immediate threat to the life of its occupants and area residents. In the affidavit in support of this application it was also stated that out of the 23 flats in Ismail Manzil, only six were occupied and the rest were vacant.
26. ' The second application moved on 6-6-2008 was an application under Ordet XVIII read with section 151, C.P.C. (C.M.A. 6363 of 2008) seeking the immediate appointment of the Nazir as Commissioner to inspect the site and also to supervise the demolition.
27. ' On 9-6-2008 K.B.C.A moved yet another application under section 151, C.P.C. (C.M.A. 6419 of 2008) seeking an order directing the occupants of. Ismail Manzil to hand over peaceful possession to officials of the K.B.C.A so that the dangerous building may be demolished. Further orders directing the police to provide proper assistance to the K.B.C.A and control any law and order situation that may be created were also sought.
28. ' On 10-6-2008 this matter was fixed for a hearing of C.M.A. 6269 of 2008 and for orders on the recently filed C.M.A. Nos. 6362 of 2008; 6363 of 2008 and 6419 of 2008. By consent a hearing of the listed applications was adjourned to 18-6-2008.
29. ' The order passed on 18-6-2008 records the statement of the plaintiffs' learned counsel that he had engaged the services of an architect for the purposes of obtaining a report on the feasibility of the building and that the would file objections after obtaining the said report. On this basis the learned counsel sought a short adjournment which was granted as a matter of last chance and the hearing of the listed applications was adjourned to 23-6-2008.
30. ' On 23-6-2008 Mr. Bilal Khilji holding brief for learned counsel for the plaintiffs stated that he intends to file a counter affidavit to the applications listed for hearing on the date. He also stated that a copy thereof had been supplied to learned counsel for K.B.C.A and requested an adjournment. This request was not opposed and, again as a last chance, the hearing was adjourned to 3-7-2008.
31. ' The counter affidavit referred to in the order of 23-6-2008 is that of the Plaintiff No,10 (Mr. Shamimuddin s/o Mr. Roshanddin Abdullah) and is of the same date. By this counter affidavit the plaintiffs responded to C.M.A. Nos. 4781 of 2008; 6269 of 2008; 6362 of 2008; 6363 of 2008 and 6419 of 2008. This counter affidavit (purportedly on behalf of all the plaintiffs) recorded the plaintiffs' no- objection to the grant of C.M.A. 4718 of 2008 pursuant to which the K.B.C.A had-sought to be joined as a defendant in this suit.
32. ' In the counter affidavit the plaintiffs:--
(a) Denied the assertion that Ismail Manzil was over 150 years old and the assertion that the owner had moved an application for inspection on 23-6-2007.
(b) Submitted that the names and designations of the persons who allegedly inspected the building have not been disclosed by the K.B.C.A nor has the K.B.C.A filed their affidavits;
(c) Submitted that they were not given any notice of the inspection nor were they afforded an opportunity of being heard before or at the time of the alleged inspection;
(d) Denied that the said inspection ever took place;
(e) Denied that the notices issued under section 14 of the Sindh Buildings Control Ordinance, 1979 were ever issued or provided to the plaintiffs. Even otherwise, the plaintiffs asserted that the said notices were issued without jurisdiction and lawful authority and were, therefore, of no legal effect;
(f) Asserted that the owner (Mr. Khan) and K.B.C.A were operating in collusion with each other;
(g) Denied that Ismail Manzil was dangerous and submitted that they had the building inspected by an architect whose report was awaited; and
(h) Asserted that the building could only be inspected by a licensed architect and not by the Nazir.
33. 'In view of the conflicting pleas taken by the parties at the hearing on 3-7-2008, the learned counsel representing K.B.C.A was directed to furnish a complete report along with relevant documents on or before 15-7-2008 and the matter was adjourned to a date to be fixed by the office.
34. 'On 29-8-2008 the K.B.C.A moved an application seeking an urgent hearing of C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6363 of 2008; and 6419 of 2008. This application was moved on the ground that the rains had started and there was a serve apprehension that Ismail Manzil may collapse at any time.
35. 'In view of the foregoing, C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6363 of 2008 and 6419 of 2008 as well as the plaintiffs' Order XXXIX application, (C.M.A. No,9150 of 2007) were fixed for hearing on 9-9- 2008.
36. 'On 9-9-2008 the Court's attention was drawn to the fact that the defendant (Mr. Khan) had yet to be served and summons, as well as notice of all pending applications, was ordered to be issued for his personal attendance on 12-9-2008.
37. 'In the circumstances the listed applications could not be taken up for hearing until 6-10-2008 on which date C.M.A. Nos. 1069 of 2008 and 4781 of 2008 were allowed by consent and the legal heirs of Ms. Nasim Akhtar were allowed to be joined as plaintiff Nos. 16, 17, 18 and 19 and the K.B.C.A as defendant No,2. A consent order was also passed on C.M.A. 6363 of 2008 and the Nazir was appointed Commissioner to inspect Ismail Manzil and submit his report within two weeks. The hearing of C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6419 of 2008 and 9150 of 2007 was adjourned to 28-10-2008.
38. 'The Nazir carried out the inspection on 23-10-2008 and submitted his report on 28-10-2008.
39. Objections to the Nazir's report were filed by the KB.C.A on 15-12-2008 and on 16-1-2009 a consent order was passed for the appointment of a qualified structural engineer from the Pakistan Engineering Council to inspect Ismail Manzil and report on its condition and sustainability. This inspection was conducted by Messrs Ishaq Khan Associates whose report dated 10-2-2009 is on record.
40. ' On the next date of hearing (26-2-2009) the Court ordered service on the defendant No,1 through substituted means including publication. Keeping in view the submission made by the plaintiffs and notwithstanding that there is no such requirement under law, the Court also directed counsel for the K.B.C.A to see if a meeting could be arranged between the plaintiffs and the defendant No,1 in order to secure some amicable settlement that would permit the demolition of Ismail, Manzil without delay.
41. ' As directed, a meeting was arranged by the K.B.C.A on 4-3-2009 which was attended by the plaintiffs and by Mr. Malik representing the defendant No,
1. The report dated 19-3-2009 submitted by K.B.C.A reveals that the offers made by Mr. Malik were not acceptable to the plaintiffs and the meeting ended unsuccessfully.
42. ' On 19-3-2009 the Court ordered notice to be issued to Mr. Malik for his attendance on 10-4-2009.
43. ' As noted above, Mr. Malik was present in person on 10-4-2009. On being asked, he replied that the defendant No,1 was abroad and was not likely to return for at least one month. A brief mention was also made of the possibility of a settlement to which his response was not encouraging. Indeed, he submitted that most of the plaintiffs in this case were not really occupants of Ismail Manzil and had filed these proceedings simply to extract an illegal benefit from the defendant No, 1.
44. ' For the purpose of determining the listed applications it is relevant that on 18-6-2008 learned counsel for the plaintiffs had stated that the plaintiffs had engaged an architect for the purpose of obtaining a report on Ismail Manzil. A reference to the said engagement was also contained in the counter affidavit filed by the plaintiff No, 10 on 23-6-2008 in which it was stated that the report was awaited.
45. ' Another reference to such a report appears in the Nazir's report dated 28-10-2008 in which a statement has been made to the effect that both sides have given the report of their engineers in respect of the building in question.
46. ' No report of the architect said to have been engaged by the plaintiffs has been filed in these proceedings. No such report is attached to the Nazir's report either and it is not understood on what basis this statement found its way in the Nazir's report. However, the Nazir's report is correct to the extent of the reference to the report of the K.B.C.A's engineer's which was obviously a reference to the report of the K.B.C.A's Technical Committee for Dangerous Building.
47. ' The finding of the Technical Committee for Dangerous Building is corroborated by the report submitted by Messrs Ishaq Khan Associates which also concluded that Ismail Manzil was beyond repair and should be demolished. Messrs Ishaq Khan Associates inspected Ismail Manzil on 7-2- 2009 in the presence of the plaintiffs whose names and signatures are attached to the report. The plaintiffs have not filed any objection to the report submitted by Messrs Ishaq Khan Associates.
48. ' In view of the foregoing, it can safely be concluded that if at all the plaintiffs engaged an architect of their own and obtained a report regarding the state of Ismail Manzil, his report also concludes that the building is dangerous and ought to be demolished. If it were otherwise, the plaintiffs would surely have filed it in Court.
49. ' Given the foregoing, my findings on the applications listed above are as follows:-- ' C.M.A. No,9150 of 2007: ' This is the plaintiffs' application under Order XXXIX Rules 1 and 2 read with section 151, C.P.C.
50. Seeking ad interim orders restraining Mr. Khan and persons acting on his behalf from dispossessing the plaintiffs and/or demolishing Isma il Manzil or any part thereof until disposal of the suit. As noted above, this application was put up in Court on 26-11-2007 on which date the parties were directed to maintain status quo. This order continues to be in force to date.
51. ' The affidavit in support of this application incorporates the contents of the plaint by reference.
52. ' As noted above, in their plaint the plaintiffs' have alleged that they are tenants in respect of various commercial and residential premises in Ismail Manzil. According to the plaintiffs, from time to time they acquired their tenancy rights from the previous owner of the Ismail Manzil against payment of pugree/goodwill. The plaintiffs also assert that they are in occupation of the flats together with their families and claim that under the SRPO they cannot be evicted except in accordance with law.
53. ' No document in support of the assertion of a tenancy right has been brought on the record by the plaintiffs save copies of fifteen rent copies in respect of the premises said to be in their occupation.
54. The date on one of these receipts is date in June 2007 and the rest bear dates in July and August, 2007.
55. ' In my view one receipt filed by each of the original fifteen plaintiffs cannot be sufficient to sustain even a prima facie finding of a tenancy. In this regard it is also relevant that the plaintiffs had stated that they were going to initiate legal proceedings under the SRPO for the deposit of rent in Court. No evidence of this having been done is on the record.
56. ' Even if the plaintiffs were indeed tenants, it is not clear how any right acquired by them in that capacity can be used to restrain demolition proceedings under the Sindh Buildings Control Ordinance, 1979. While the plaint itself does not contain any reference to proceedings under the 1979 Ordinance, it is relevant that the suit was instituted on 3-11-2007 after the notices under section 14 of the 1979 Ordinance had been issued on 1-9-2007 and 13-9-2007 and, as stated in the notices themselves, copies thereof had also been pasted on the site for their information.
57. ' In so far as the proceedings initiated by the K.B.C.A under section 14 of the 1979 Ordinance are concerned, in their counter affidavit and the oral submission made on 10-4-2009 the plaintiffs:--
(a) Have urged that the owner had not moved an application for inspection on 23-6-2007 as alleged by the K.B.C.A;
(b) Submitted that the names and designations of the persons who allegedly inspected the building have not been disclosed by the K.B.C.A nor has the K.B.C.A filed the affidavits of the said persons;
(c) Submitted that they were not given any notice of the inspection nor were they afforded an opportunity of being heard before or at the time of the alleged inspection;
(d) Denied that the notices issued under section 14 of the Sindh Buildings Control Ordinance, 1979 were ever issued or provided to the plaintiffs. Even otherwise, the plaintiffs asserted that the said notices were issued without jurisdiction and lawful authority and were, therefore, of no legal effect;
(e) Denied that the said inspection ever took place; and
(f) Submitted that the K.B.C.A has no authority to demolish/remove dangerous buildings since no such power has been conferred on the K.B.C.A by the 1979 Ordinance and that, even otherwise, the K.B.C.A had failed to follow the procedure set out in Chapter 7 of the Karachi Building and Town Planning Regulations, 2002 which deals with dangerous buildings.
58. 'Before dealing with these submissions it will be instructive to reproduce section 14 of the 1979 Ordinance which reads as follows:--
(1) 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 costs of demolition shall be recovered from the owner as arrears of land revenue.
(3) Where the whole or a part of a 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 the 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.
59. ' In order to deal with the plaintiffs' submission regarding Chapter 7 of the 2002 Regulations it is relevant to note the regulation 7-1 of this chapter deals with dangerous buildings which cannot be restored and are, therefore, liable to be demolished (identified as Category-I Buildings), and those buildings which can be restored and do not require demolition (identified as Category-II Buildings).
60. Regulation 7-2 relates to the Technical Committee on Dangerous Buildings. Regulation 7-3 deals with buildings that are unfit for human habitation and prohibits their further use for human habitation. Regulation 7-4 deals with alteration/ modification/updates and repairs of Category-II buildings and Regulation 7-5 with the demolition of Category-II buildings. Regulation 7-6 provides for the extension of the period within which a Category-II building is to be repaired and Regulation 7-7 with the evacuation of dangerous buildings.
61. ' For the purpose of these proceedings it will be helpful to reproduce the provisions of regulations 7- 1, 7-2, 7-5 and 7-7. These read as follows:-- '7-1 General ' For the purpose of this chapter all such buildings, walls or structures which are declared by the Technical Committee on Dangerous Buildings as dangerous shall lie in the following two categories:-- 7-1.1 Any building or structure who strength, stability, serviceability, robustness and/or durability has been impaired due to any reason such as improper structural design and detailing, faulty and/or poor construction, decay, dilapidation, obsolescence, natural disasters or leading to abandonment due to all these reasons to a level, where it cannot be restored to its original status, shall classify
[sic] as Dangerous Building Category-I, and shall liable [sic] to be demolished.
62. 7-1.2 Any building or structure or-party thereof whose strength, stability, serviceability, robustness and/or durability has been impaired due to all such reasons as cited in 7-1.1 to a level, where it could by way of strengthening, upraisal [sic] and restoration be brought partially or wholly near to its original status, shall be classified as Dangerous Building Category-II and shall be governed by the Regulation No,7-4 set forth in these Regulations.
63. 7-2 Technical.Committee of Dangerous Building (TCDB)
64. 7-2.1 The Controller of Buildings of the concerned Circle of the Authority shall examine, or cause to examine, every building or structure or portion thereof in his Circle reported as dangerous, and shall refer the matter to the Technical Committee specifically constituted by the Authority for a term of office not more than three years. The Committee shall be reconstituted after every ten years.
65. ' Regulations 7-2.1.1 to 7-2,1.7 provide for the number and qualifications of the members of the Technical Committee on Dangerous Buildings and are not reproduced herein.
66. 7-2.2 If in the opinion of the COB of the concerned Circle, a building or part thereof has become dangerous for human habitation he shall give at least twenty four hours (24 hrs) notice to the owner/owners or occupants (who need not be named) for inspection of such buildings by the Technical Committee (TCDB).
67. 7-2.3 In case the Technical Committee (TCDB) considers a building or a part thereof repairable or modifiable without causing danger to human life or property, it may issue such orders to the owner/occupant/tenant of such building in this regard.
68. 7-2.4 If the above Technical Committee finds such building dangerous/ ruinous/unsafe after proper inspection and investigation, Controller of Buildings of the concerned Circle shall serve to the owner of such building or structure a written notice stating the defects thereof as determined by the TCDB, and shall require the owner or person in-charge of the building or premises to commence either the required repairs or improvements, or demolition and removal of the building or structural portion thereof as the case may be, and all such works shall be commence/ completed [sic] within the period specified by the Committee (TCDB).
69. 7-5 Demolition of Dangerous Buildings on Expiration- of Notice Period.
70. 7-5.1 If at the, expiration of the period specified in the notice and order to demolish a building or part of a building issued under Clause 7-4 has not been complied with, the Authority may direct, by an order in writing, the demolition thereof by through [sic] approved contractor (who has on his roll at least one Professional responsible for undertaking all necessary safety measures during, the process of demolition) as per procedure laid down by the Authority. The credit if any, of the cost of such demolition and sale after appropriation, shall be paid to the owner after deducting the charges accrued by the authority for such demolition. In case the sale proceeds are insufficient to meet total charges of the Authority for such demolition the same shall be recovered from the owner as the arrears of land revenue.
71. 7-7 Evacuation of Dangerous Buildings 7-7.1 If in the opinion of the Authority, any building, wall, or structure or anything affixed thereto is in a hazardous or dangerous state, Authority may, by notice in writing, require the owner or occupier thereof forthwith either to remove the same or to cause such repairs to be made thereto as the Authority considers necessary for the public safety, and if the danger appears to be imminent, the Authority may forthwith take such steps as may be required to avert such danger, including the evacuation without notice from such building of all the occupiers thereof.
72. 7-7.2 Any expenses incurred by the Authority under clause 7-7.1 shall be paid by the owner concerned.
73. 7-7.3 When the owner of any building, wall, structure or anything affixed thereto fails to execute the repairs required from him by the Authority under clause 7-7.1, the tenant/ occupier of such building, wall, structure 'or anything affixed thereto may, with the previous approval of the Authority, carry out such repairs.
74. 7-7.4 Except with the permission in writing of the Authority no person shall enter into or remain in any building from which the tenant/ occupier has been removed under clause 7-7.1.
75. ' Each of the plaintiffs' submissions noted above are now dealt with in the light of the parties' pleadings on file and the foregoing provisions of the 1979 Ordinance and the 2002 Regulations.
76. ' The plaintiffs' submission that the owner had not moved an application for inspection on 23-6- 2007 is not correct. A copy of this application is attached to the K.B.C.A's report dated 15-7-2008.
77. From the notations on the application it appears that it was received by the K.B.C.A on 23-6-2007 and the order to inspect to building was passed on 25-6-2007.
78. The plaintiffs' submission that the names and designations of the persons who allegedly inspected the building have not been disclosed by the K.B.C.A is only partially correct. Annexure A to C.M.A.
79. 4781 of 2008 (which was allowed by the parties' consent) is a copy of a Pro forma for Declaring a Building Dangerous.
80. ' The date of inspection on this document is 16-8-2007 and the recommendation of the Technical Committee for Dangerous Buildings (that the building be declared dangerous since it was in a dilapidated and ruinous condition) is set out on page 2. Page 2 of this report also contains the signatures of four persons, three of whom have also printed their names. Three of them have also noted their affiliation. The first signature is of a person affiliated with the PEC (Pakistan Engineering Counsel); the second of Mr. Nisar Ahmed, Sec. TCDB; and the third is of Mr. Imran Ahmed of the PCATP (Pakistan Counsel of Architects and Town Planners).
81. ' Regulations 7-2.1.1 to 7-2.1.7 provide that amongst the persons who are required to be on the Technical Committee for Dangerous Buildings should be nominees of the Pakistan Engineering Council, Pakistan Counsel of Architects and Town Planners and the Controller of Buildings (Dangerous Buildings), who shall be a member and Secretary of the said IA Committee.
82. ' From the Pro forma on file as well as the subsequent notices that were issued under Section 14 of the 1979 Ordinance, there is no reason to believe that the required inspection did not indeed take place. It is also clear that the inspection was conducted by authorized persons.
83. ' I am, satisfied that the required inspection was conducted on 16-8-2007. The plaintiffs' assertion that the affidavits of Committee members should have been filed in these proceedings is without any force since this report is entitled to the presumption set out in illustration (e) to Article 129 of the Qanoon-e-Shadat Order, 1984. While this presumption may be rebutted, a mere denial without anything more can hardly be considered sufficient for this purpose.
84. The plaintiffs' assertion that they were not given any notice of the inspection nor were they afforded an opportunity of being heard before or at the time of the alleged inspection is not correct.
85. Annexure B to C.M.A. 4781 of 2008 (which was allowed by the consent of the plaintiffs) is a copy of an undated letter written by the plaintiff No,10 to the K.B.C.A with reference to the Section 14 notice dated B 28-4-2008. According to the notation on this letter, it was received by the K.B.C.A on 3-5- 2008.
86. ' In this letter the plaintiff No,10 admits service of the Section 14 notice and submits by way of a reply that the notice was issued without a proper investigation and that the building was not dangerous.
87. There is nothing on the record that would suggest that the representations contained in this letter were not taken into consideration by the K.B.C.A The representations in this letter were of a lay person challenging the conclusion of a committee of professionally qualified persons and could not conceivably have led anyone to arrive at a different conclusion.
88. ' It is also relevant that the plaintiff No,10 wrote the above letter at a point in time after the Technical. Committee had conducted its inspection and the conclusion C reached by it was the subject of a challenge in these proceedings. The report of the architect which the plaintiffs stated had been engaged to conduct an inspection of the building has not been filed by the plaintiffs but the report of the structural engineer from the Pakistan Engineering Council appointed by the Court with the consent of the plaintiffs has concurred that the building is dangerous and should be demolished.
89. ' In view of the foregoing, even if were correct that the plaintiffs were not afforded a formal hearing after the Technical Committee's inspection, it cannot c be said that the plaintiffs have suffered any prejudice on that account in the circumstances of this case.
90. The date on which the K.B.C.A received the plaintiff No,10's letter is relevant for another purpose also because it predates the date of the counter affidavit filed by the plaintiff No,10 in these proceedings. The Counter affidavit was sworn by the plaintiff No,10 on 23-6-2008. As noted above, in his counter affidavit the plaintiff No, 10 has denied that the notices D issued under Section 14 of the Sindh Building Control Ordinance, 1979 were ever issued or provided to the plaintiffs.
91. ' This, on the face of it, is a false statement in view , of the contents of his own letter received by the K.B.C.A on 3-5-2008.
92. I now come to the plaintiffs' assertion that the 1979 Ordinance does not vest any power in the K.B.C.A to demolish dangerous buildings and that the K.B.C.A has failed to follow the procedure set out in Chapter 7 of the Karachi Building and Town Planning Regulations, 2002 which deals with dangerous buildings.
93. ' In support of the foregoing submission learned counsel for the plaintiffs relied upon the judgment of this Court in Muhammad Aftab v. K.B.C.A 1999 YLR 529.
94. ' I have gone through the judgment in Muhammad Aftab' s case and note that unlike this case, the building in question there was a Category-II Building that could be repaired, and demolished only if the requisite repairs were not carried out.
95. ' Learned counsel for the plaintiff relied upon the following passage on page 532 of the judgment in Muhammad Aftab's case to argue that the K.B.C.A is not empowered to carry out demolition of dangerous buildings.
96. ' I am afraid section 14 of the 1979 Ordinance in its amended form does not permit demolition by the defendant authority upon its forming the opinion that the building is dangerous. The Regulations framed by the authority, even with approval of the Provincial Government, cannot enlarge scope of the statute itself. Delegated legislation should be [sic] remain within the parameters of the statute itself. The provisions contained in section 14 of the 1979 Ordinance in its amended form allow the authority to form an opinion about any structure if it requires repair or demolition. Such opinion has to be formed after conducting inquiry as may be deemed proper.
97. Obviously an inquiry pre-assumes determination of an issue which cannot be undertaken without associating the affected person or persons therewith. Once the opinion is formed, as above, and repairs are found necessary, the owner or occupier is to be called upon to carry out repairs within the period specified by the authority. Upon failure of the owner/occupier to carry out repairs, the authority can proceed to have the building demolished and in such event is entitled to recover cost of demolition as arrears of land revenue. However, in the event of the authority forming on opinion that demolition of the building or its parts has to be carried out, notice is to be served in terms of subsection (3) of section 14 of the 1979 Ordinance requiring the occupier (s) to vacate the building within the period notified by the authority. In case the building is not vacated, the authority is empowered merely to eject the occupiers through use of force. Quite surprisingly, no power to carry out demolition of building is vested upon the authority itself in the event of its forming the opinion that the building in question requires to be demolished wholly or in part. The provision may appear to be strange, nevertheless, the non-conferment of the power to carry out demolition appears to be wilful and conscious.
98. ' With respect, I am unable to agree with the foregoing conclusion in Muhammad Aftab's case for the following reason.
99. ' Relying on subsection (3) of section 14 of the 1979 Ordinance the Court in Muhammad Aftab came to the conclusion that: "In case the building is not vacated, the authority is empowered merely to eject the occupiers through use of force".
100. ' The operative portion of subsection (3) of Section 14 reads as follows: "...The Authority may, notwithstanding any other law for the time being in force order that the occupier or occupiers of the building be ejected, if necessary, by force".
101. ' In Muhammad Aftab the Court was quite correct in interpreting the words "the authority may...Order that the occupier or occupiers of the building be ejected, if necessary, by force" to mean that the K.B.C.A is "empowered to eject the occupiers through use of force". The Court was also correct is using the word "merely but only when construing the import of subsection (3) of Section 14.
102. What I am unable to agree with is the Court's conclusion in Muhammad Aftab that the K.B.C.A has no power at all to carry out demolition itself if it forms the opinion that the whole or part of a building is to be demolished.
103. ' Employing the process of reasoning used in Muhammad Aftab's case, this power, in my opinion, is conferred by subsection (1) of section 14 itself which, in pertinent part, provides that if it comes to the notice of the K.B.C.A that a building is likely to collapse, the K.B.C.A may, after conducting such enquiry as it deem fit, order for carrying out the demolition of the whole or part of the building.
104. ' If, in subsection (3) the K.B.C.A can order that the occupier or occupiers of the building be ejected, if necessary, by force and then itself proceed to eject the occupiers through use of force, there is reason why, in the case of subsection (1) of section 14, the K.B.C.A, after ordering for demolition of the whole of part of a building, cannot proceed to demolish the building itself.
105. ' In my opinion subsection (1) of section 14 of the 1979 Ordinance fully empowers the K.B.C.A to demolish a building that has been determined to be dangerous and beyond repair (a Category-I Dangerous Building) or, if capable of repair, which has not been repaired as required (a Category-II Dangerous Building), ln both cases the demolition can be carried out by the K.B.C.A itself or through a person acting on its behalf.
106. ' If a building is to be demolished by the K.B.C.A in exercise of the power conferred by Section 14 of the 1979 Ordinance, it must first be cleared by the K.B.C.A of all occupiers. That is the subject of subsection (3) of section 14 of the 1979 Ordinance.
107. ' In so far as the 2002 Regulations are concerned, at the time of the hearing learned counsel for the plaintiffs did not specify which of the seven Regulations in Chapter 7 had not been complied with the K.B.C.A. Notwithstanding the foregoing and having regard to the facts set out above, I find that there has been no violation of the departure from the applicable Regulations set out in Chapter 7 the most important of which for the purposes of this case are Regulations 7-2.1 and 7-2.4.
108. In determining this application I am mindful of the fact that an order paving the way for demolition will have an adverse effect on the persons in occupation of Ismail Manzil. However, this cannot be greater than the adverse effect that will be occasioned on the life and property of not only the occupiers of this building but also of the persons residing and working in the vicinity of Ismail Manzil when it collapses, which it clearly can at any time. This risk is wholly unacceptable and cannot be taken at any cost.
109. ' There is nothing on the record to suggest that the conclusion of the Technical Committee on Dangerous Buildings or of the structural engineer appointed by the Court with the plaintiffs' consent is flawed.
110. ' As noted above, the plaintiffs had stated that they had engaged an architect to conduct a similar exercise but no report of this architect has been filed.
111. ' In view of the foregoing, I find that the plaintiffs have failed to establish any ground that would permit a confirmation of the status quo order passed on 26-11-2007. The same is accordingly vacated and C.M.A. 9150 of 2007 is dismissed.
112. ' C.M.A. Nos. 6269 of 2008: 6362 of 20Q8: and 6419 of 2008: These are K.B.C.A's applications seeking a modification of the status quo order to the extent that the K.B.C.A may take action as per law and remove the dangerous building (C.M.A. No,6269 of 2008); seeking permission to immediately demolish Ismail Manzil under the Nazir's supervision (C.M.A. 6362 of 2008); and seeking an order directing the occupants of Ismail Manzil to hand over peaceful possession to officials of the K.B.C.A so that the dangerous building may be demolished.
113. ' In view of the order passed on C.M.A. 9150 of 2007, these applications are disposed of in the following terms:--
(a) All occupants of the building known as Ismailjee Manzil constructed on the plot bearing survey No, GK 1/23 situated at Harris Road, Rachiram Thakardas, Ghulam Hussain Quarters, Karachi, including the parties in this suit, are ordered to vacate the said building within five (05) days from the date of this" order;
(b) The K.B.C.A is directed to ensure thatfta notice to vacate the building known as Ismail Manzil prepared with reference to this order is forthwith pasted at a conspicuous place near die entrance
(s) to the said building and on each floor of the said building;
(c) Any person found to be in occupation of the said building after the aforesaid five (05) day period shall be removed by the K.B.C.A within twenty-four (24) hours of the expiry of die said five
(05) day period through the use of force if necessary;
(d) Forthwith upon its vacation as above, the building in question shall be demolished by the K.B.C.A itself or through an approved contractor Jn the manner as regards the procedure for demolition and payment of costs provided in regulation 7-5 of the 2002 Regulations. .
114. I now come to the issue of the statement made by the plaintiff No,10 (Mr. Shamimuddin son of Mr. Roshanddin Abdullah) in his counter affidavit dated 6-2008 that no notice under section 14 of the Sindh Buildings Control Ordinance, 1979 was ever issued or provided to the plaintiffs.
115. 'As noted above, this, on the face of it, is a false statement on oath made in what appears to be a deliberate and contumacious attempt to interfere with the course of justice and abuse the process of this Court. In view of the foregoing, the plaintiff No,10 Mr. Shamimuddin is directed to show cause within ten (10) days of the date of this order why action should not be taken against him for contempt of this Court.
116. This matter shall now come up for further proceedings on 30-4-2009. Let notice to show cause be issued to Mr. Shamimuddin as above and also to be present in person on 30-4-2009.