1. ANWARUL HAQ, J.---This petition seeks leave to appeal against the judgment of a Division Bench of the High Court of Sind & Baluchistan dated the 24th of May 1974, whereby a Constitution Petition filed by respondents Nos. 1 and 2 was accepted, the appellate order made by the Secretary to the Government of Sind in the Excise, Taxation. Town Planning and Local Government Departments war set aside, and the order of the Karachi Municipal Corporation directing the demolition of certain portions of the building known as Jeelani House, situate on M. A. Jinnah Road, Karachi, was restored.
2. The building in question is owned by respondent Nos. 1 and 2, and certain portions thereof are in the possession of the petitioners as tenants. On 10-5-71 a notice was issued by the Architect (Control) of the Karachi Municipal Corporation under section 79 of the Municipal Administration Ordinance of 1960, stating that on inspection of the building the Corporation was of the view that certain specified portions on the ground floor, first floor and second floor were in a dangerous condition and should be demolished within seven days. The landlords and occupiers were given a period of three days from the service of the notice to show cause to the satisfaction of the authority against this notice failing which the structure would be demolished by the Corporation after the expiry of seven days. It is stated that the portions specified in the notice constituted the front portion of the building.
3. Instead of showing cause in terms of the notice, the tenants approached the Administrator of the Karachi Municipal Corporation in separate appeals. They produced certificates from certain private architects in support of their contention that the building was in a sound condition. The Administrator personally inspected the building, and endorsed the opinion expressed by the Architect (Control) as to the condition of the building. He accordingly dismissed the appeals of the tenants by his order dated 6-11-71.
4. The tenants thereupon filed an appeal before the Divisional Commis--sioner of Karachi, in his capacity as the Controlling Authority of the Corporation. The Commissioner directed the Chief Town Planner and Architect of the Karachi Development Authority to carry out a detailed inspection of the building. 'This Officer prepared his report on the 22 of December 1972, and sent it on to the Secretary to the Government of Sind in the Local Government Department, who was by this time seized of the appeal filed by the petitioners and other tenants, on account of the abolition of the post of the Divisional Commissioner. By an order made on the same day the learned Secretary', allowed the petitioners' appeal on the grounds that the portions declared dangerous by the Corporation were capable of being repaired that the landlords had not allowed the tenants to carry cut these repairs that the landlords had shown no inclination or intention to demolish the back portion of the building which was really in a dangerous condition ; and that these circumstances showed that the action of the Corporation was mala fide, intended to eject the tenants without recourse to the relevant law.
5. Aggrieved by this appellate order, the landlords filed a writ petition in the High Court which, as already stated, has been accepted by a Division Bench. The learned Judges have found that the Provincial Secretary acted on extraneous and irrelevant considerations, basing his conclusions on facts which were not present on the record. They have stated that there was no material on the record to show that the landlords had shown no inclination for demolishing the back portion of the building, as in fact the notices of demolition were issued by the Architect of the Karachi Municipal Corpora--tion, and not by the landlords. They have also observed that there was simi--larly no material to show that the landlords had not allowed the tenants to undertake the necessary repairs: They have further taken note of the fact that the learned Secretary had completely ignored the report submitted by the Chief Town Planner and Architect of the Karachi Development Authority who had been depicted for this purpose by the Divisional Commissioner when the appeals were first filed before him. On this view of the matter, they have reached the conclusion that the appellate order having been passed on the basis of non-existent facts, had to be declared as being one without lawful authority in view of the dictum of this Court in the case of Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14).
6. While accepting these contentions raised on behalf of the landlords, the learned Judges have repelled the contention raised on behalf of the tenants that effect could not be given to section 79 of the Municipal Administration Ordinance, 1960, in view of the prohibition contained in section 13 of the West Pakistan Rent Restriction Ordinance, 1959, against the ejectment of tenants except by recourse to proceedings under the said Ordinance. They have expressed the view that the two statutes were intended for entirely different purposes, and the demolition of a dangerous building under section 79 of the Municipal Administration Ordinance could not be refused on the ground that the ejectment of the tenants had not been sought under the Rent Restriction Ordinance.
7. Leave to Appeal is sought mainly on the ground that the learned Judges in the High Court were in error in thinking that the findings recorded by the Provincial Secretary as appellate authority, were not based on the record, and were influenced by extraneous and irrelevant considerations. Learned counsel for the petitioners also contends that in soy case the order of demolition could not affect the rights accruing to the petitioners as tenants under the relevant law.
8. After hearing Mr. Sharifuddin Pirzada at some length, and examining the various orders and reports made in this case from time to tine, we find ourselves in agreement with the view taken by the High Court. We find that in the notice issued by the Architect of the Karachi Municipal Corporation on the 10th of May 1971, certain portions of the building were declared to be dangerous, so as to rewire demolition under section 79 of the Municipal Administration Ordinance. The view taken by thend Architect as to the condition of the building was fully endorsed by the Administrator of the Karachi Municipal Corporation as a result of his personal inspec--tion of the building. The same conclusions were reached by, a technical officer of high standing, appointed by the Divisional Commissioner as the original appellate authority, before whom the petitioners appeal .Had been filed. Even as a result of the inspection carried out by the learned Provincial Secretary it was found that acme portions of the roof had fallen down and some other portions had been propped up temporarily. Accordingly, it does become clear that certain portions of the building were indeed in a dangerous condition so as to require demolition. If the Karachi Corporation had not notified the landlords or the occupiers for the demoli--tion of the back portion of the building, it did not show that the notice requiring the demolition of dangerous portions was mala fide.
9. The High Court also appears to be right in thinking that it is not the case of the tenants that the building had become dangerous owing to the refusal of the landlords to permit the tenants to carry out the necessary repairs. The finding recorded in this behalf by the Provincial Secretary was also, therefore, not sustainable on the record.
10. In these circumstances, the High Court was right in taking the view that the learned Secretary had been influenced by extraneous and irrelevant considerations, and by factsnot present on the record, in reaching theconclusion that the notice of demolition was males fide. There is also no explanation for the Provincial Secretary to have completely ignored it --technical report of the Chief Town Planner and Architect of the K Development Authority, who had been appointed by the Divisional Commissioner to furnish a detailed report on the condition of the building It is true that as appellate authority the Provincial Secretary was not by this report, but it was his duty to examine this report before reaching his conclusions as to the condition of the building, as this technical officer had been appointed by the appellate authority itself for the purpose of furnishing a technical report.
11. For the foregoing reasons, we are not persuaded that any justification is made out for our interference in the matter. We would accordingly dismiss this petition.
12. While doing so, we would, however, like to observe that the order of demolition made by the Karachi Municipal Corporation dies not obviously affect the statutory rights of the petitioners as tenants of the building and in fact the High Court does not appear to us to have said anything of the petitioner prejudice of the petitioners in this behalf.