AJMAL MIAN, J.---This a petition for leave to appeal against the order dated 20-12-1993 passed by a Division Bench of the High Court of Sind in Constitution Petition No.D-2180 of 1993 filed by the petitioner against respondent wherein he prayed for the following reliefs:-- "The petitioner respectfully prays as under:-- (a)for declaration that the demolition of a portion of petitioner's premises is illegal, unjust, mala fide and without the legal authority as the said demolition has been made without taking any legal procedure; (b)for restraining the respondents, their workers, agents and employees from ejecting and demolishing the ground floor structure in possession of the petitioner; (c)for directing the respondents Nos. l to 4 to repair the ground floor portion damaged by the respondents and reconstruct the first floor portion and hand over the same to the petitioner within specified the of 3 months; (d)Cost of the petition and (e)any other relief/relieves which this Honourable Court may deem fit and proper under the circumstances of this case also be granted. "
It appears that when the above Constitution Petition had come up for bearing, the learned Judges of the Division Bench appointed the Official Assignee as a Commissioner for visiting the site and for submission of the report. It further appears that upon the receipt of the above report, which was based on an Architect's report the learned Judges of the Division Bench, dismissed the above petition in limine. The petitioner has, therefore,. Filed present petition for leave to appeal.
The above petition is barred by the by 33 days. The petitioner has filed an application for condonation of delay alongwith which he has filed a certificate issued by the Superintendent Civil Hospital, certifying that the petitioner remained in-door patient of the Hospital for the period from 28th December, 1993 to 22nd March, 1994 for the treatment of ailment mentioned therein. We, therefore, would not dismiss the petition on the above ground at this stage: The above question will be taken up at the regular hearing.
2. The brief facts leading to the filing of the above petition are that the petitioner filed Suit No.992 of 1992 in the Court of VIth Senior Civil Judge at Karachi (South) for declaration and permanent injunction. It appears that the petitioner and respondents Nos. l to 4 entered into a settlement on 12-8-1992 whereby above respondents Nos. l to 4 agreed to pay Rs.11,00,000 as the compensation for vacating the portion of the building in possession of the petitioner, which comprised commercial and residential premises. Out of the above agreed amount, a sum of Rs.50,000 was paid by above respondents Nos. l to 4 to the petitioner. In view of the above settlement, the above Suit No.992 of 1992 was withdrawn by the petitioner. After that on or about 1-12-1992, the petitioner filed Suit No. 778 of 1992 against respondents Nos. l to 4 for specific performance of the above agreement dated 12-8-1992 and damages amounting to Rs.30,00,000. It may be advantageous to reproduce para.8 of the plaint of the above suit, which reads as follows:-- "That as per agreement the defendants failed to pay the plaintiff the balance of Rs.10,50,000. On the contrary they are threatening the plaintiff to evict him and demolish the premises forcibly. On 29- 11-1992 at about 5.00 a.m. The defendant No.4 came alongwith his workers and some police-men, they entered into the premises forcibly and demolished one room adjacent to the stair-case ............... vacate the premises. However, the operative portion of the above order reads as follows:-- "Be that as it may, since the prayer in the application is only that the defendants be restrained from dispossessing the plaintiff except in due course of law and Mr. Deda says that the defendants never intended, and do not now intend, either to demolish the premises or dispossesses the plaintiff except in due course of law and in accordance with the relevant rules and regulations, there is not much controversy between the parties as far as this application is concerned. The defendants are, therefore, directed not to dispossesses the plaintiff except in due course of law. The application stands disposed of in these terms. "
It seems that after the passing of the above order by learned Judge in Chambers in above Suit No. 778 of 1992, respondents Nos. l to 4 made efforts to get the position of the building, which is in possession of the petitioner, demolished through respondent No.5 i.e. Karachi Building Control Authority with the assistance of respondents Nos.6 and 7 i.e. SHO Police Station Napier and Assistant Commissioner and SDM Eidgah respectively. Thereupon, the petitioner filed above Constitution Petition, which was dismissed in limine as stated above. Hence, the petitioner has filed present petition for leave to appeal.
3. The above petition for leave to appeal was placed before one of us, (Ajmal Mian, 1) on 26-3-1994 for Chamber orders when the following order was passed:-- " A.A. Siddiqui,; AOR.
May be fixed in Court for 27-3-1994 after notice to the respondents. R & P of C.P. No. 2180/93 may be sent for from the High Court. In the meantime status quo be maintained."
4. In response to the above order, the case had come up for hearing, inter alia, on 29-3-1994 when by consent of the learned counsels for the parties, the case was adjourned for today with the observation that in the meantime the parties shall make effort to settle the matter. The case has come up for hearing today.
5. Mr. A. Latif A.Shakoor, learned counsel for respondents Nos. l to 4 states that his clients are not willing to pay any amount to the petitioner as compensation though the petitioner was ready to accept the above balance of Rs.10,50,000 in return of vacating the premises in dispute.
6. We have heard Mr. A.A. Siddiqui, learned counsel for the petitioner, Mr. A. Latif A. Shakoor, learned counsel for respondents Nos. l to 4 and Mrs. Zahida Naqvi, Assistant Legal Advisor to respondent No.5.
7. The learned counsel for the petitioner has vehemently contended that in order to deny the payment of Rs.10.50,000 payable by respondents Nos. l to 4 under the above settlement agreement dated 12-8-1992. Above private respondents have got mala fidley the proceedings initiated by respondent No.5 under the Sind Building Control Ordinance, 1979. Hereinafter referred to as the Ordinance, and that the action of respondent No.5 is mala fide and not warranted by law.
It has further been urged by him that respondents Nos. 1 to 4 not only wish to get the portion of the building in possession of the petitioner demolished but also to get him vacated without recourse to law.
8. On the other hand Mr. A. Latif A. Shakoor, learned counsel appearing for respondents Nos. l to 4, has submitted that the factum that the portion of the building in possession of the petitioner is dangerous has been confined even by the official Assignee in his report, which was founded on the opinion of an expert.
His further submission was that factually the petitioner had backed-out from the above agreement of settlement dated 12-8-1992 and not respondents Nos. l to 4 and because of that, the above respondents had suffered a loss.
9. The case of respondent No.5 was that it has initiated proceedings on its own and not at the behest of the owner of the building.
It may be stated that respondent No.5 intends to take action under section 14 of the Ordinance, which reads as follows:-- "14. 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 the 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 the being in force order that occupier or occupiers of the building be ejected, if necessary, by force: Provided that no action shall be taken under this section unless the person who is likely to be affected thereby is given an opportunity of being heard."
A perusal of the abovequoted subsection (1) of section 14 indicates that if it comes in the notice of the authorities that a building is to collapse, the authority may after such enquiry as it may deem fit, order for carrying out the specific repairs or demolition of the whole or part of the building, whereas sub--section (2) of the above section empowers the authority to carry out the above repair or demolition work. It further be noticed that under subsection (3), the authority has been authorised to require the occupier or occupiers of the building or part thereof, which is to be demolished, to vacate failing which it has been empowered to vacate such occupiers, if necessary, by force. However, the proviso to the above section enjoins the authority that no action shall be taken under the above section unless the person who is likely to be affected is given an opportunity of being heard.
10. We would not like to express our view on the merits of the case but we are inclined to grant leave to appeal to consider the following questions:-- (1)Whether respondent No.5's action is mala fide at the behest of respondents Nos. 1 to 4?
(2)What is scope of section 14 of the Ordinance?
(3)Whether after demolishing of the structure by the Authority under section 14, the tenancy of the tenant, who is in possession of the structure, will come to an end or whether the owner would have to file ejectment proceedings against the tenant under the Sind Rented Premises Ordinance?
11. Leave is accordingly granted. The above interim order dated 26-3-1994 will continue till further orders. Appeal arising from the above petition may be fixed at an early date as the question of demolition is involved. It will also be open to the parties to move an application for disposal of the appeal in case, they arrive at an amicable settlement.