' HAIDER ALI PIRZADA, J.--The petitioner applies under Article 9 of Provisional Constitution Order, 1981, for a declaration that Annexure R/1, dated 22-9-1981 being an order passed by the respondent No,4, recalling the earlier order Annexure A/1, dated 26-3-1981, is of no legal effect.
2. The brief facts are as under:-
3. The petitioner is the owner of Plot No,84, No,1. Lines Cantt. With buildings thereon measuring 4,643.29 sq. Yards consisting of 58 rooms. The Islamic Education Society was running a Secondary and Primary School known as Mario Colaco School which in October 1972, was nationalised under Article 5 of M.L.R.
118. This property unit was finally assessed to GARV at Rs,24,843 per annum as per order, dated 10- 11-1975 of Director Excise and Taxation, Karachi.
4. Since the vesting of management of the School in the Government, the respondents Nos.1 to 3 have not paid any rent for the period from October 1972 to December 31, 1975. The said respondents Nos.1 to 3 did not carry out any repairs to the building with the result the entire structure has become dilapidated, dangerous and ruinous.
5. The respondent No,4 served a Notice bearing No,84/NIL/139, dated 26-3-1981, Annexure A/1 to the petition under section 124 of the Cantonments Act 1924, to demolish the said building as the same is in ruinous/dangerous state. It is reproduced hereinbelow:-- "Structure situated on this plot is absolutely out of date and dangerous for living because entire structure can 4all at any time. Out-houses (servant quarters) constructed are also dangerous because of poor strength of structure. The position of the building housing Mario Colaco School located on this plot is not safe and all the barracks being used for school are dangerous as these have out-lived their life and it cannot be allowed for continuation of such an important institution because of involving risk of lives of students. The entire building/buildings on the said plot are dangerous to persons dwelling and passerby."
6. The petitioner by his Letter No, MC/84/1, dated 2-4-1981 appraised the respondent No,2 about the letter of respondent No,4. Copy of the letter is annexed to petition as Annexure Al2.
7. The Deputy Secretary accompanied by Executive Engineer had visited the school and it was found that the condition of the building was simply deplorable and not fit for continued occupation. A copy of the letter A/3 is annexed to the petition.
8. The petitioner by his Letter No, MC/84/3, dated 23-4-1981 Annexure A/4 to the petition, requested the respondent No,4 to issue notice to respondent No,2 for vacating the said dangerous building.
The Deputy Director requested the petitioner by a Letter No,DSE/Admn. C(N) 1394/81, dated 26-4- 1981, Annexure A/6 to the petition, to postpone demolition of the building as the matter was under consideration of the respondents Nos.1 to 3
9. The respondent No,4 served the Notice No,84/NIL/259, dated 15-6-1981 (Annexure B/1 to petition), on the respondent No,2 that they failed to vacate the building within the period stipulated in the said notice. The respondent No,2 sent a reply, dated 1-7-1981, Annexure B/2 to the petition. The respondent No,4 by their letter No,84/NIL-311, dated 18-7-1981, Annexure B/3 to the petition, stated that the said building was also inspected by Garrison Engineer, Navy East, and found that the building was dangerous. The respondent No,2 also invited tenders by public notices for the sale of debris/material of the building. Copy of the daily "Millat", dated 28-7-1981 alongwith its English translation are annexed to the petition as Annexures C/1 and C/2.
10. The report of Garrison Engineer is also annexed to the petition as Annexure D. The Cantonment Boards by their resolution, dated 13-5-1981 authorised the Examination Officer to take action under section 256 of the Cantonments Act and other provisions of law.
11. The President of Karachi Cantonment Board by his Letter No,84/NIL/699/706, dated 9-8-1981 informed respondent No,1 about the deplorable condition of the building. It was also mentioned therein that the building has again been certified to be dangerous by representatives of the respondents Nos.1 and 4. Copy of the letter is annexed to the petition as Annexure "F".
12. The Nazir of this Court under orders, dated 13-1-1982 has also inspected the buildings and in his opinion the main building has outlived its utility and cannot be allowed to be used for habitation, particularly for housing a school therein. A copy thereof is annexed as Annexure C /5 to the petition.
13. The petitioner served a notice on the respondent No,1, copy of which is, annexed to the petition as Annexure C/7. The respondent No,1 approached the respondent No,4 by their letter R/2 and requested that the notice issued on 26-3-1981 under section 126 be withdrawn as the said respondent No,1 was prepared to carry out satisfactory repairs of the Mario Colaco School building during the winter holidays. On the basis of assurance of respondent No,4 withdrew his order by a Letter No,84/NIL/842, dated 22-9-1981 (Annexure R/2 to the counter-affidavit of Muhammad Nasimullah). It seems that the respondents Nos. 1 to 3 carried out the repairs during the period from January 1982 to July 1982, vide a certificate produced during the course of arguments.
14. Mr. Mubarak Hussain Siddiqui, learned counsel for the petitioner has urged that the impugned letter, dated 22-9-1981 is of no legal effect as the same does not exist in the eye of law and the same was issued on the basis of an assurance. He further urged that the same has been procured by respondents Nos.1 to' '3 from respondent No,4 by exercising undue influence and the same is mala fide and.Illegal. He has further urged that Annexure A/1 to the petition still occupiis the field and cannot be considered to have been cancelled or withdrawn by respondent No,4. Mr. Muhammad Ibrahim Memon, learned A.A.-G. For respondents Nos.1 to 4 has contended that the repair work had been carried out during the period of January 1982 to July 1982. Mr. Abdul Saeed Khan Ghori, learned counsel for the respondent No,4 has urged that on the assurance of the respondents. Nos.1 to 3, the letter, dated 26-3-1981 was withdrawn.
15. We have perused the correspondence exchanged between the parties, the inspection reports of the Garrison Engineer, the Executive Engineer of the Karachi Cantonment Board as well as the Executive Engineers and other representatives of the respondent and also the reports of the Nazir of this Court. We find from the record that the A Mario Coleco School building has outlived its utility and is in dilapidate condition.. No other view is possible.
16. It is pertinent to reproduce the items of repairs which have been carried out by the respondents Nos.1 to 3 which is as follows:-
(1) Replacing of AC sheets of roof.
(2) Block masonry in walls.
(3) Cement plaster.
(4) Hard Board sheets for partition on ceiling work.
(5) Providing & fixing pan wood rafters for roofing.
(6) Removing and refixing of AC sheets.
(7) White wash and colour wash. ,
(8) Painting work.
' We find that minor repair work was carried out only in some of the rooms and such minor repairs by itself is not sufficient for replacing the dangerous structure.
17. We find force in the arguments of the learned counsel for the petitioner that the respondent No,4 acted in haste and in an arbitrary manner in withdrawing the earlier order, dated 26-3-1981 without due consideration to the correspondence exchanged between the parties, the various reports and letter of the President of respondent No,1 o the Karachi Cantonment Board and the impugned order of withdrawal was passed on a mere assurance of the respondents Nos.1 to 3, who did not carry out substantial repairs till January, 1982. The present position of the building is no different. The impugned order was issued in violation of the letter; dated 5-7-1981 and is of no substance. These are the detailed reasons for our short order, dated 30-8-1983.