1. ' The applicant who is owner of property bearing Plot No,57, Sheet R.B.II, situated at Dr. Gidwani Road, off Temple Road, Ratan Talao, Karachi, received notice from the Respondent calling upon him to demolish the building constructed on the said plot within 24 hours failing which it was threatened that the Respondent would demolish the structure at the risk and cost of the Applicant.
2. The applicant therefore, filed Suit No,3205/82 in the Court of XXXI Civil Judge, Karachi, wherein it was stated that the applicant had got the plans of construction approved from the Karachi Municipal Corporation on 1741-1976 and completed the construction of the building in the end of 1977, and let out all the tenements to different tenants. Ali as completion of the building, the building was assessed to taxes and charges by the relevant authorities including KMC. He, therefore, sought declaration to the effect that the notice issued by the Respondent was bad in law, void, non-operative and also prayed for perpetual prohibitory injunction restraining the Respondent from demolishing the structure.
3. ' The Respondent filed an application under Order 7, rule 11, C.P.C. For rejection of the plaint inter alia on the wound that notice in writing as provided under section 20-A of the Sindh Building Control Ordinance, 1979 was not delivered to or left at the office of the respondent before institution of the suit and as such the suit was incompetent and barred by law. The learned Trial Court Judge accepted the above plea and rejected the plaint under Order 7, rule 11, C.P.C. The applicant filed Civil Appeal No,51/84 but the same was dismissed.
4. ' The learned counsel for the applicant has contended that the construction was raised by the applicant after obtaining the approval of the plan from KMC and it was completed in the end of 1977 i,e, to say much before the promulgation of the Sindh Building Control Ordinance, 1979. He has urged that the provisions of the said Ordinance are not applicable to the structure raised by the Applicant as the said Ordinance is operative only prospectively and not retrospectively. He has relied on the case of Muhammad Ahmed Japanwala v. Karachi Building Control Authority, reported in 1989 ALD 481(2). In the reported case, the respondent Authority wanted to demolish the unauthorised construction which was raised before the promulgation of the Ordinance, the owner of the structure filed a petition wherein it was held that the Ordinance is prospective and not retrospective in its operation and, therefore, the Respondent Authority could not proceed against the petitioner for the alleged violation of building laws which violation had taken place before the enforcement of the Ordinance and it was also laid down that the Authority was not competent to issue notice for demolition of alleged unauthorised construction which was in existence much before the enforcement of the Ordinance. It is next contended by the learned Counsel that the Applicant had specifically stated in the plaint that the notice had been issued to him in bad faith and with mala fide intention inasmuch as only the Applicant was selected for the issuance of such a notice although there are several other buildings constructed under the similar circumstances but no notice was issued to them. The Court below had noted the aforesaid averments made in the plaint and so also noted the law on the principle that for rejection of plaint under Order 7, rule 11, C.P.C. The Court has to confine itself to the contents of the plaint and accepting the contents to be true has to reach the conclusion that the plaint is barred by law. In spite of such observations found in the judgment of the trial Court in detail, both the Courts below proceeded to non-suit the Applicant for want of notice under section 20-A of the Ordinance. It may be pointed out that Courts below have even noted the case of Karachi Development Authority v. Evacuee Trust Board reported in PLD 1984 Kar. 34, but have failed to follow the rule laid down therein.
5. ' Mr. Dasti Muhammad Ibrahim has vehemently opposed the present Revision Application. He has stressed that the Respondent has authority and jurisdiction under section 7-A of the Ordinance to issue notice for demolition and has power to carry out demolition under section 11 of the Ordinance.
6. Section 11 of the Ordinance provides that where the provisions of subsection (1) of Section 6, are violated the building may without prejudice to any other action including sealing of the building or ejectment of the occupant, be ordered by the authority or any officer of the authority authorised in this behalf to be demolished. Section 6, subsection (1) provides that no building shall be constructed before the authority has approved the plan of such building and granted No, Objection Certificate for the construction thereof. The very reading of section 6, shows that it has a reference to point of time when the Ordinance is promulgated and it is from that date onwards that no building shall be constructed before the plans have been approved by the authority constituted under the said Ordinance. Section 7-A also contemplates actions for violation of subsection (1) of Section 6 of the Ordinance. Since the building in suit was constructed before the promulgation of the said Ordinance, no action can be taken against it or its owner under any of the provisions of the said Ordinance.
7. ' The learned Counsel of the Respondent has also relied on the proviso to subsection (1) of section 6, which covers the case of building, the construction whereof was commenced before coming into force of the Ordinance and on that basis contends that the Applicant was under the bounden duty to get the plans approved or obtain No-Objection Certificate within six months from the enforcement of the Ordinance. He has also relied on the explanation which defines the word "construct" to include an act of reconstruction with all its variations and, additions or alterations.
8. The reading of the aforesaid provisions again clearly indicates, without any ambiguity, that the said proviso and the explanation will be attracted only when the construction of a given building is in progress at the time of promulgation of the Ordinance, and will not be attracted to a building which has been already completed or which is not being reconstructed within the expanded meaning of the term `reconstruct' as provided in the Explanation to Section 6(1) of the Ordinance.
9. ' The learned counsel has relied on PLD 1978 Kar. 848 (Zainab Hajiani v. Al-Hilal Cooperative Housing Society, Karachi) on the proposition that in case notice under section 20-A is not served on the Respondent Authority, suit cannot be maintained and is liable to rejection under Order 7, rule 11, C.P.C. The authority relied upon by the learned Counsel deals with scope of Article 131 of KDA Order, 1957 and effect of non-service of notice under the said Article. This authority is not applicable to the circumstances of the present case. It has been already held that the notice impugned in the suit cannot be treated as a notice under the provisions of the Sindh Building Control Ordinance, 1979.
10. The rule laid down in the aforesaid authority was distinguished in the case of Karachi Development Authority v. Evacuee Trust Board (Supra) wherein this Court laid down that notice required under Article 131, KDA Order, 1957, would be necessary before institution of the suit against K.D.A., if the suit is filed in respect of any act purportedly to be done under the said Order or Rules or Regulations made thereunder. The said principle is also applicable to the present case. Section 20-A will be attracted only in respect of anything done or purported to be done by the Building Control Authority or its employees within the four corners of the said Ordinance and not otherwise and so also it will not be attracted where any act is done with mala fide intentions or in colourable exercise of the authority vested.
11. ' I, therefore, allow this Revision. The impugned orders of both the Courts below are set aside and the suit is remanded to the trial Court for disposal on merits.