1. ' This suit has been filed by the plaintiffs challenging the notice issued by Defendant No,2 on 27-3- 1990 threatening to take action under section 7-A of Sindh Building Control Ordinance, 1979, hereinafter referred to as the Ordinance.
2. ' The case of the Plaintiffs is that they are occupants/tenants of the two shops in the building constructed on Plot No,154/17, Federal 'B Area, Karachi, which is owned by the Defendant No,3; and that the Defendant No,3 in order to eject them has managed to get the said notice issued by the Defendants Nos.1 and 2. It is further the case of the Plaintiffs that Plaintiff No,1 is in occupation of the said shop since the year 1966 while the Plaintiff No,2 was inducted as a tenant in the year 1986. The Plaintiffs have prayed for the following reliefs in the suit: "(a) To declare that the impugned notice dated 27-3-1990 Annexure 'D' of this plaint is illegal, void, without jurisdiction, without authority, mala fide collusive and of no legal effect;
(b) Permanent injunction restraining the Defendants, their servants and agents from dispossessing the Plaintiffs from their respective shops Nos.1 and 2, on Plot No,154/17, Federal 'B' Area, Karcahi in any manner;
(c) Permanent injunction restraining the Defendants Nos.1 and 2, their servants and agents from demolishing the shops in dispute in Plaintiffs or any part thereof in any manner whatsoever;
(d) permanent injunction restraining Defendants Nos.1 and 2, their servants and agents from sealing or attaching the premises/shops of the Plaintiffs situated on Plot No, 154-R, Federal 'B' Area, Karachi;
(e) Permanent injunction restraining the Defendants. Nos.1 and 2 from taking any action in pursuance of the impugned illegal notice dated 27-3-1990 attached as Annexure-D to this plaint.
(f) costs of the suit; and
(g) any other relief or reliefs this Hon'ble Court deem fit and proper under the circumstances of this case."
3. ' The Defendants were served. The Defendants Nos.1 and 2 filed a joint written statement while Defendant No,3 has filed a separate written statement wherein he has taken numerous pleas, specially that the Plaintiff No,1 who is running a hair-dressing shop is a nuisance and liable to be ejected. The suit came up for settlement of issues on 10-11-1991 when the following preliminary issue was framed: "Whether the Defendants Nos.1 and 2 could issue notice under section 7-A of the Sindh Buildings Control Ordinance, 179 with regard to violation committed perior to promulgation of the said Ordinance?"
4. ' The Defendants Nos.1 and 2 were also required to produce approved building plan, if any, on the date of hearing. Such plan has been produced by the learned counsel for the Defendants Nos.1 and 2 which shows that the initial site plan was approved in the year 1965 and a completion plan and a letter allowing the occupancy of the building was issued on 24-4-1974. Again another letter was issued on 25-5-1974 by the K.D.A. Showing that another building proposal for the said plot was duly approved. I have heard the submissions of the learned counsel for the parties.
5. ' Mr. S. Lshtiaq Ali, learned counsel appearing for the Plaintiffs has submitted that in the instant case as shown the building plan was originally approved in the year 1965 while subsequent plan was also approved in the year 1974 and, therefore, the present Defendants Nos.1 and 2 who came into existence on promulgation of the Ordinance in the year 1979 had no jurisdiction to take any action with regard to constructions raised and regularised before the said date.
6. A careful study of the Ordinance will show that the provisions of the A Ordinance arc prospective in nature and not retrospective. The impugned notice issued on 27-3-1990 shows that action is contemplated to be taken under section 7-A of the Ordinance on the grounds of unauthorised construction.
7. ' Mr. Dasti Muhammad Ibrahim, learned counsel appearing for the Defendants Nos.1 and 2 has submitted that the Authority is competent to take action under section 7-A of the Ordinance if there is any violation of the provisions of section 6( I) of the Ordinance.
8. ' In order to appreciate the submissions of the learned counsel for the parties it would be neccessary to reproduce the provisions of the two relevant sections, which read as under:- "6. Approval of plan.--(1) No 4 loading shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no-objection certificate for the construction thereof on payment of such fee as may be prescribed: ' Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance, the Authority's approval of the plan and no-objection certificate shall be obtained not later than six months after the enforcement of the Ordinance.
9. Violation of certain provisions.--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 occupants be ordered by the Authority or any officer of the Authority authorised in this behalf to be demolished, at the cost of the builder in the case of public buildings and the owner in other cases.
10. The plain reading of the provisions of the above-cited section 6(1) of the Ordinance will show that no building could be constructed before an approval of the Authority has been obtained in the prescribed manner. This itself if shows that this provision is applicable prospectively and not retrospectively. A reading of the proviso to this subsection shows that in case of building, the construction whereof had commenced before the coming into force of the Ordinance, it would be necessary to obtain the Authority's approval, No-Objection Certificate not later than six months after the enforcement of the Ordinance. The main point which requires consideration in this case is as to what is implied by the word "commenced". The ordinary meaning of the word would imply that this word refers to those constructions which were in progress at the time of promulgation of the Ordinance although the construction work had started earlier. If the legislature intended to apply this provision to the buildings duly constructed prior to promulgation of the Ordinance, then the word "completed" or "constructed" would have been used. Thus the obvious conclusion from above discussion is that the provisions of section 6(1) do not apply to the buildings already completed prior to promulgation of the Ordinance. Similarly, the provisions of section 7-A of the Ordinance also show that the contemplated action in this section could be taken only in the case the provisions of section 6(1) of the Ordinance are violated. Since there is no violation of section 6(1) of the Ordinance, the Defendants Nos.1 and 2 were not competent to issue the impugned notice and this act of the Defendants Nos.1 and 2 is ultra vires and violative of the authority vested in them under section 7-A of the Ordinance. Reliance can also be placed on a judgment given by Division Bench of this Court in Const. Petition No,D-961 of 1982.
11. ' Mr. Dasti Muhammad Ibrahim, learned counsel for Defendants Nos.1 and 2 then raised another plea with regard to maintainability of suit. He submitted that the suit is not maintainable as no prior notice has been served upon these Defendants as required under section 20-A of the Ordinance.
12. Section 20-A of the Ordinance reads as under:- "20A. Notice for Institution of Suit.--No suit shall be filed against the Authority or any of its employees in respect of anything done or purported to be done by the Authority or such employee under this Ordinance except after expiration of sixty days next after notice in writing has been delivered to or left at the office of the Authority or employee as the case may be."
13. The above-said provision provides that notice is a necessary requirement in case of filing of a suit to challenge anything done or purported to have been done by the Authority or its employees under the Ordinance. In order to appreciate this provision, it would be necessary for the said Defendants to show that the action of theirs which is being challenged in the suit is an "action under the Ordinance". As I have already held that the said act of the Defendant No,2 is violation of the authority invested in him, the said act cannot be said to be an "act done under the Ordinance".
14. No order can be said to be an order passed "under the Ordinance or any Statute" if it was not passed in exercise of powers granted by the said statute and, therefore, was without jurisdiction. In an exactment saying that order passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to be challenged in a Court of law has reference only to orders passed with jurisdiction. It can be laid down as a general rule to the language used in an enactment that barring provisions applied only to the orders passed with jurisdiction. A reference in this respect can be placed on the case of Abdul Rauf v. Abdul Hamced Khan PLD 1965 SC 671.
15. Since I have held that the notice issued by the Defendants Nos.1 and 2 is without jurisdiction, the said act of these Defendants is mala fide act and cannot be termed to be an act under the Ordinance and, therefore, the provisions of section 20-A of the Ordinance would not be a bar to filing of the suit and the suit would be maintainable. Reliance can also be placed on the case of K.D.A. v. Evacuee Trust Board PLD 1984 Kar.
16. 34.
17. In view of the above discussion, I answer this issue in favour of the Plaintiffs and declare that impugned notice dated 27-3-1990 is illegal, void, without jurisdiction and authority, mala fide and of no legal effect. Consequently, I grant permanent injunction restraining the Defendants from dispossessing the Plaintiffs of their respective shops and demolishing the said shops. It may, however, be observed that the Defendant No,3 would be at liberty to seek any other remedy, if available in law. The suit is accordingly decreed in above terms with no order as to costs.
18. ' Above are the reasons for the short order announced in Court on 2nd December, 1991.