This Writ Petition has been directed against the order dated 15th March, 1981 of the Commissioner, Sargodha Division, Sargodha (Annexure 'M') whereby the Chairman, Municipal Committee has been restrained from demolishing shops Nos. 6 to 18, in the ground floor covered passage between shops Nos. 13, 14 and shops Nos. 15 in the ground floor, room Nos. 26 including courtyard over shop Nos. I1 and 12 in the first floor and the stairs leading thereto of property No. 82-83, Block No. 1, Sargodha. The entire building consists of 19 shops on the ground floor and seven rooms on the ground floor. The building is stated to be 75 years old.
2. A joint application was made on 10th September, 1981 to the Chairman, Municipal Committee, Sargodha, on behalf of 15 tenants of the petitioners and 8 owners of the adjoining building to the effect that the building, in dispute, is in a dilapidated and dangerous condition and the same be ordered to be demolished and constructed afresh (Annexure 'A'). The Chairman of the Municipal Committee sent for report vide note dated 16th September, 1980 from the Municipal Engineer. In consequence, the Municipal Engineer submitted his report on 16th September, 1980 to the effect that the building was very old and may cause harm at any time and accordingly recommended demolition of the same as suggested by the Building Inspector, vide his note dated 16th September, 1980. The Municipal Engineer, Municipal Committee, Sargodha also served a notice dated 16th September, 1980 (Annexure `C') to the petitioners and owners of the building directing therein that since the building was in a dangerous condition, the same be vacated forthwith and re- constructed afresh in accordance with the rules and regulations.
3. On receipt of the said notice, the petitioners made a representa--tion to the respondent No. 2 stating therein that some of the tenants were willing to vacate the premises but the other were not and in the circumstances, the petitioners informed the Chairman that they could not be held responsible if any human lives were lost due to non-vacation of the premises by some of the tenants. The Chairman sent for the report from the Building Inspector/ Municipal Engineer but before the report could be submitted to the Chairman and any decision taken by him, the respondents 3 to 1.0 filed an appeal before the Commissioner on 6th October, 1980 against the notice issued by the Municipal Engineer, Municipal Committee, Sargodha to the owners of the building to demolish the building, in question. The Commissioner at the instance of the respondents deputed the Superintending Engineer, Municipal Committee, Sargodha, to determine the suitability the building for human habitation and on receipt of his report it was directed that the Municipal Committee, Sargodha should not demolish a portion of the building, in question. Respondents 3 to 10 admittedly did not implead the petitioners as party in appeal as stated by the Commissioner in paragraph 6 of his report dated 23rd June, 1981 placed on record.
4. The learned counsel for the petitioners has assailed the validity 15 March, 1981 of respondent No. 1 on
(a) Firstly that the order is wholly without jurisdiction, as much as, an appeal against the order of Municipal Engineer was not competent before the Commissioner either in terms of Rule 2 of the West Pakistan Municipal Committee (Appeal) Rules, 1980 which have since been repealed nor under the existing rules namely the Punjab Local Council (Appeal) Rules, 1980. In terms of Rule 4 of the newly framed rules, an appeal against an order passed by any servant of the Municipal Committee other than the Chairman and the Vice-Chairman would lie to the Chairman. This being so, the appeal before the Commissioner according to the learned counsel for the petitioner was wholly incompetent.
(b) Secondly ; that according to para. 7 of the report of the Commissioner, impugned order was passed by the Commissioner in the exercise of powers conferred on him under section 156 of the Punjab Local Government Ordinance, 197.9. The learned counsel for the petitioner submits that section 156 is inapplicable to the facts of the present case, inasmuch as, the powers of the Government under the aforesaid law have been delegated to the Deputy Commissioner and not the Commissioner under the Punjab Local Government Ordinance, 1979 (Delegation of Powers) gazetted on 7th April, 1980 appearing at page 26 of PLD 1980 Provincial Satutes (Punjab).
5. Without going into the merits of the case, the admitted position is that the impugned order was passed by the respondent No. 1 on the appeal filed by respondents 3 to 10 wherein the petitioners were not impleaded as a party nor they were heard although they were necessary parties. On this short ground alone, the impugned order of respondent No. 1 is not sustainable in law and is quashed accordingly.
6. Be that as it may, the learned counsel/Legal Adviser for Municipal Corporation, Sargodha has submitted that the matter is still sub judice before the Chairman, Municipal Corporation, Sargodha and till a final decision is taken by the Chairman after affording an opportunity of hearing to the owners as well as the occupants of the entire building, the property, in dispute, shall not be demolished. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.