1. ' SYED HAIDER ALI PIRZADA, .J.---The petitioner through this petition has sought the following reliefs:- - "(i) to declare that the notice under reference No, BCA/DCBVIII/87/189 dated 1-4-1987 and issued by respondent No,1 and notice under Reference No, BCA/DCB-VIII/87/221 dated 12-4-1987 are void, inoperative, mala fide and ultra vires to the Sindh Building Control Ordinance of 1979 and that the respondent No,1 has no right and/or authority either to issue notice for carrying out repairs and/or grant permission to respondents Nos,2, 3 and 4 the tenants, to carry out repaiRs,; ' the costs of the petition may also be allowed."
2. ' The facts leading to the filing of the above petition are that the petitioner is the owner of the property known as Baghpati Chambers situated on plot bearing Survey No, 8 Sheet No, S.R. 7, Saraj Quarters, Karachi having purchased the same under registered conveyance deed dated 25-1-1984.
3. It is his case that at the time of purchase of the above property, the same was occupied by different persons, firms and companies and is a solid Pacca constructed building and does not require either any renevation and structural repair or any other kind of repairs in the said building.
4. ' It is his further case that the respondents Nos,2 and 3 prior to purchase of the building by the petitioner, started harassing the previous owner by making frivolous to the respondent No,1 regarding the alleged repair on to applications top floor of the said building but in the meantime the property was sold by the previous owner to him. After the purchase of the property on 26th January 1985 a letter was received under the signatures of Deputy Controller of Buildings, Zone-VIII of the Karachi Building Control Authority calling upon the petitioner to carry out the repairs of the top floor of the buildings; particularly the portion under occupation of respondent No,3. It mentions that if the petitioner failed to carry out the required repairs, the tenants occupants of the building shall be authorised to carry out the repairs by themselves. This letter was followed by two other letters directing the petitioner to carry out the repairs immediately, failing to start the required repairs within seven days' time, the tenants shall be authorised to carry out the required repairs without any further notice to the petitioner. On the 19th January 1987, one notice purporting to be based on section 114 of the Sindh Local Government Ordinance, 1979 was issued under the signature of Health Inspector of Karachi Municipal Corporation, calling upon the petitioner to comply with the requirements mentioned below within ten days of the receipt of this letter as the petitioner has been found to be in contravention of the aforesaid law: "(1) Premises to be lime/colours washed externally and internally.
(2) All the wooden and iron works to be painted.
(3) All the latrines and bathrooms to be put in proper sanitary condition.
(4) Flush tanks to be put in proper sanitary condition.
(5) ' Premises needs adequate arrangements for ,House Scavenging." This notice was followed by two letters/notices, one dated 1-4-1987 and the other dated 12-4-1987, demanding that as the previous letters and notices had not been complied with, the petitioner should now carry out the repair work of the said premises within seven days time failing which the same shall be allowed to occupants of the building to avoid any mishap. The petitioner has challenged in this petition the impugned letters/notices.
5. ' Notices of the petition were duly served upon the respondents in the month of April 1987. The respondent did not contovert the statements made in the petition.
6. ' Mr. Rehmat Elahi, learned counsel for the petitioner contended that the building was not in a dangerous condition, the action of the respondent No,1 was not authorised by law. He contended that neither section 14 of the Sindh Building Control Ordinance, 1979 nor section 114 of the Sindh Local Government Ordinance, 1979 gave the respondent No,1 Municipal Corporation the power to direct the tenants to carry out the repairs in the building.
7. ' Mr. Farooq Naek, learned counsel appearing for the respondents Nos,2 and 3 submitted that the respondents Nos,2 and 3 have already surrendered the tenements to the petitioner.
8. ' Mr. M. Iqbal Memon, learned counsel appearing for the respondent No, 1 submitted that the respondent No,1 is empowered to issue letters/notices and is also empowered to direct the tenants to carry out the repairs ' We have considered the submissions of the learned counsel very carefully and have also gone through the documents available on the record: ' Before dealing with the circumstances under which the letters/notices came to be issued, we must refer to the previous history of the petitioner's building and the correspondence between the owners and the Authority relied upon by the petitioner as showing the real object of the respondent No, 1 in issuing the notice under section 14 of the Ordinance. The respondents Nos,2 and 3 started harassing the previous owners by making frivolous applications to the respondent No,1 regarding the alleged repairs on the top floor roof of the said building. The petitioner made representation to the respondent No,1 and thereafter the said permission was withdrawn by the respondent vide Letter No, KBCA/DCB-VIII/147/85 dated 5-5-1989. While the permissions was withdrawn, there was no suggestion whatever that the top floor of the building was in a dangerous condition.
9. ' Section 14 of the Sindh Building Control Ordinance, 1979 is in the following terms:-- "Dangerous buildings.---(1) If it comes to the notice of the authority that a building is likely to collapse, the Authority may, after such enquiry as it deems fit, order for carrying out the specific repairs or demolition of the whole or part of the building.
(2) Where the specific repairs are to be carried out, the Authority may, by notice, require the owner of building or in the event of his failure, the occupier thereof to carry out such repairs within such period as may be specified in the notice and if the repairs are not carried out within the specified period, the Authority may, notwithstanding any other law for the time being in force, proceed to have the building demolished and the cost of demolition shall be recovered from the owner as arrears of land revenue.
(3) Where the whole or a part of the building is to be demolished, the authority may, by notice, require the occupier or occupiers thereof to vacate the building within the period specified in the notice and if the building has not been vacated within such period, the Authority may, notwithstanding any other law for the time being in force, order that occupier or occupiers of the building be ejected, if necessary, by force."
10. ' Section 114 of Sindh Local Government Ordinance, 1979 is in the following terms:-- "114.- (1) Where anything is required to be done or not to be done by any person under this Ordnance or the rules or bye-laws, a notice shall be served on the persons concerned specifying the time within which the requirement shall be complied with: Provided that no notice shall be necessary in case of violation of clause 2 of paragraph 51 in Sehedule II.
(2) No notice shall be invalid for defect of form.
(3) Every notice shall, unless otherwise provided, be served or presented by giving or tendering the notice or sending it by post to the person for whom it is intended or where the notice cannot be so served or presented, by affixing it on some conspicuous part of his place of residence or business.
(4) A notice intended for the public in general shall be deemed to have been duly served if a copy thereof is affixed at such public place as may be determined by the council concerned and in case of a Corporation, municipal committee, town committee, and district council, is published in a newspaper."
11. ' Section 14 of the Sindh Building Control Ordinance is the only section under which the authority can act in respect of buildings in dangerous conditions. It is headed "Dangerous Buildings". The letter is already reproduced hereinabove.
12. ' The primary object of the section is the safety of the public, to secure which the authority must necessarily be given very wide poweRs, But is does not follow that those powers can be exercised arbitrarily and without due consideration to the provisions of the section and the right of individuals.
13. ' In the first place, it must come to the notice of the Authority that a building is likely to collapse, then the Authority may hold enquiry and after such enquiry as it deems fit order for carrying out the specific repairs or demotlition of the whole or part of the building. It is admitted that the word "enquiry" connotes proper application of mind. Mr. Zaki Ahmed the Health Officer, K.M.C. Signed the notice which was sent to him by the Deputy Controller of K.B.CA. The Authority, on the strength of that signature, concluded that a proper conclusion had been arrived at as regards the top floor roof of the building. In a year, a number of these types of notices are issued and it is obviously impossible for the Authority to do more than trust the discretion of its subordinates but is only by fiction that it can be said that a notice signed in this way by the Authority complies with the section.
14. It should be considered as a notice to show cause. It is not invalid, at the same time it cannot deprive the person served with it of his right to object unless the legislature has already deprived him of such a right. The Health Officer, K.M.C. Signed the notice. It is not contended that Mahmood Ahmed ever considered whether the requisition in the notices were the proper ones in the circumstances. There is nothing on the record to show that the Authority/The Deputy Controller/the Health Inspector had seen the premises before issuance of the notice/letteRs, Even there is nothing on record to show that they had held an enquiry as contemplated by the provisions of section 14 of Sindh Building Control Ordinance, 1979.
15. ' Now danger means peril, hazard, exposure to injury from pain or other civil and can vary in degree accordingly as the apprehended injury is expected to occur at once or at some future time. Section 14 of the Sindh Building Control Ordinance, 1979 applying to all degrees of danger and prescribing various precautionary measures to be taken to prevent injury resulting therefrom, if follows that first the degree of danger must be accertained, and then the " appropriate precautionary measure prescribed.
16. ' Section 14 empowers the Authority to conduct enquiry, first in coming to a conclusion as to the state of the structure and then in fixing upon the appropriate remedy. It is obviously impossible for the Authority to inspect all structures that are suspected of being dangerous. Therefore, in our opinion, it is necessary in deciding what structures are dangerous if the Authority appoints a competent person to hold an enquiry to come to the conclusion what structures are dangerous.
17. But if a notice is issued based on the enquiry, it is open to the owner to prove that person has not conducted the enquiry properly and the conclusion has been actuated by the improper motives in prescribing the steps to be taken otherwise the owner has no remedy. The Authority has only to say "it has appointed a competent person to conduct the enquiry that person had come to the conclusion that the strucure was dangerous and direct the tenants to carry out the repairs".
18. ' Subsection (1) of section 14 of the Ordinance empowers the Authority to order for carrying out the specific repairs or demolition of the whole or part of the building.
19. ' Subsection (2) of section 14 of the Ordinance empowers the Authority to dire& the owner of building to carry out the repairs or in the event of his failure the occupier thereof to carry out such repairs within such period as may be specified in the notice and if the repairs are not carried out within the specified period, the Authority may proceed to have the building demolished and the costs of the demolition shall be recovered from the owner as arrears of land revenue. But the repairs of top floor of the building will not fall within the meaning of dangerous buildings, in such a case also the Authority must be satisfied that the building is dangerous and endangers human life.
20. Without that satisfaction, the Authority cannot exercise the powers conferred by section 14 of the Ordinance. But, in such case also, the Authority cannot act as arbiter of civil disputes between the landlord and tenant. The Authority cannot usurp the powers of the Rent Controller. An examination of the notices dated 1-4-1987 and 12-4-1987 discloses that the Authority, the respondent No,1, had not exercised the power under section 14 of the Ordinance but had exercised them to decide the civil dispute between the landlord and tenant. From this, it follows that the letters/notices dated 1- 4-1987 and 12-4-1987 were not legal.
21. ' In the light of what has been stated above, we accept the petition and hold that the impugned letters/notices dated 1-4-1987 and 12-4-1987 are hereby declared as without the authority of law and of no legal effect. In the circumstances of the case, the parties are directed to bear their own costs.