' Ally Madad Shah, J.--This constitutional petition is directed against a notice under section 14 of the Sind Building Control Ordinance, 1979, dated 7th October, 1982, issued by Deputy Controller of Buildings, Master Planning and Environmental Control Department, K.D.A., Karachi, the respondent No,1, for total demolition of a building situate on Plot No,2, S.R.1, Serai Quarters, Karachi.
2. The petitioner Furqan .Ahmed is one of the occupiers of the said building which belongs to M/s. U.B.L., Karachi, the respondent No,2. He has alleged that the impugned notice is mala fide and has been issued without lawful authority, having been manoeuvred by the owners, the respondent No,2, who were interested in getting the building vacated, and there was no justification for issuance of the notice for its demolition.
3. The respondents have resisted the petition and contended that the building is of old construction and it is in delapidated condition, which has deteriorated further due to an incident of fire in its upper floor in October, 1982.
4. At the hearing of the petition, the learned counsel for the petitioner has reiterated the grounds of mala fides of the respondents and lack of authority in the respondent No,1 for issuing the notice for demolition of the building. He has urged that the respondents No,2 were interested in getting the building vacated for deriving monetary benefits thereafter and they have actually filed ejectment case against the petitioner for achieving their object. He has further urged that the condition of the building is not so dangerous as to necessitate its demolition even after fire had broken in a portion of it. He has also challenged the competency of the Deputy Controller Buildings, the respondent No,1, in issuing the notice for demolition of the building as, according to him, notice could be issued by only the "AUTHORITY" established under section 4 of the Sind Buildings Control Ordinance, 1979.
On the other hand, the learned counsel for the respondent No,1 has contended that the "AUTHORITY" is a statutory body constituted under section 4 of the Sind Buildings Control Ordinance, 1979 (hereinafter referred to as the Ordinance") and its functions are to be discharged by its Chief Executive and other functionaries as envisaged under section 4(2) and 4-A of the Ordinance.
According to him, the Deputy Controller of Buildings is one of the functionaries of the "AUTHORITY" and notice for the demolition of the building under the provisions of section 14 of the Ordinance could be issued under his signature. He has emphatically denied the allegations of mala fides attributed to the respondent No,1. The learned Advocate for the respondent No,2 also has made denial of the allegations of male fides imputed to the respondents No,2 and asserted that the building is in a dilapidated condition and it has become dangerous for human inhabitation after fire broke out in it and the Buildings Control Authority has issued notice, in exercise of power vested in it under section 14 of the Ordinance, for its demolition. He has further argued that the functions of the "AUTHORITY" are to be discharged by its functionaries and the respondent No,1, being one of its functionaries, could issue the notice for demolition of the building.
5. The impugned notice was issued under the provisions of section 14 of the Ordinance, which reads as under:- "14. Dangerous buildings. (1) Where the Authority is satisfied that the building is likely to collapse or is so dangerous as to cause harm to human life for property, it may, by notice, require the occupier or occupiers thereof to vacate the building within the period specified in the notice.
(2) If the building in respect of which notice has been issued under subsection (1) has not been vacated within the period specified in the notice, the Authority may order that the occupier or occupiers of the building be ejected, if necessary, by force.
(3) The Authority may, by notice, require the owner of the building vacated under subsection (2) to demolish or cause to be demolished such building within the period specified in the notice and in the event of failure of the owner to do so, the Authority shall have the building demolished and the cost of demolition shall be recovered from the owner as arrears of land revenue."
' Evidently, the "AUTHORITY" does have power to order demolition of a building in respect of which it is satisfied that it is likely to collapse or is so dangerous as to cause harm to human life or property.
The procedure to be adopted therefor also is laid down in the same section 14 of the Ordinance. It is provided that the "AUTHORITY" may, by notice, require the occupier or occupiers thereof to vacate the building within the period specified therein. It is further provided that in case the building in respect of which notice has been issued, has not been vacated within the specified period, the "AUTHORITY" may order that the occupier or occupiers of it should be ejected, if necessary by force.
It is also provided that the "AUTHORITY" may, by notice, require owner of the building so vacated to demolish or cause to be demolished such building within the period specified in the notice and, in the event of the owner failing to do so, the "AUTHORITY" shall have the building demolished at the cost of the owner. Thus, there are two stages for causing demolition of a dangerous building. The first stage is that of getting the building vacated and the next stage is that of causing its demolition. In this case, the first stage seems to have been bypassed and the notice has been issued to the owner straightaway for demolition of the building and its copies have been endorsed to the occupiers of the building as the notice. Of course, the owners have not taken exception to this procedure, probably for the reason that they are interested in the demolition of the building, but one of the occupiers, namely--the petitioner, has objected to it. Obviously, the notice for demolition of the building without hearing the occupiers A is against the spirit of law itself.
Secondly, the impugned notice was issued under the signature of the Deputy Controller of Buildings. The learned Advocate for the respondent No,1 has produced a copy of an office order regarding delegation of powers and functions of the officers of Karachi Buildings Control Authority and formation of committees issued on 5th December, 1981 and placed reliance on the powers delegated to the Deputy Controller of Buildings and made pertinent reference to the powers mentioned at Sr. No,10, appearing at page 5 of the order. It reads--"Issue of notices for dangerous buildings shall be done by the Deputy Controller of Buildings after report by the committee and final orders of Director-General, K.D.A.". In this case, it is not mentioned anywhere that the Director- General, K.D.A, had passed final orders for the demolition of the building. Of course, it has been stated in the comments submitted by the respondent No,1 as well as in the counter-affidavit filed by him that the committee had recommended demolition of the building and a Photostat copy of such report of the committee has been filed alongwith the comments. The report is dated 6th November, 1982, whereas the notice for demolition of the building was issued on 7th October, 1982, i,e, about a month before the report of the Inspection Committee. The report of the Inspection Committee was given by three members, out of which one member was the Controller of Buildings.
The same office order dated 5th December, 1980 regarding the delegation of powers to the officers and the formation of the committee indicates that the committee for declaring a building as dangerous consisted of seven members. As such, the report by only three members was not a report by a duly constituted committee. It is provided under the powers of the Director-General, K.D.A., at page 17 of the same office order dated 5th December, 1981, that notice for dangerous building shall be issued by the Deputy Controller of Buildings after report by the committee and final orders from the Director-General, K.D.A. It follows that the impugned notice was issued by the Deputy Controller of Buildings 8 without the report of the duly constituted Inspection Committee and without the orders of the Director-General, K.D.A.
6. Consequently, it is declared that the impugned notice dated 7th, October, 1982, was issued without lawful authority and is of no legal' effect. Petition is allowed.