' After issuance of notices, hearing the counsel and the respondent No,1 in person, I allowed Criminal Miscellaneous Application No,450 of 1997 on 23-12-1997 for detailed reasons to be recorded later on. Such reasons are stated in the following paragraphs.
2. The facts giving rise to the present application are that the applicant through his attorney has been raising construction on a plot of land bearing No,37-A, measuring 991.66 square yards at Gulshan-e-Faisal Cooperative Housing Society Limited, Bath Island, Karachi. In this regard the applicant through attorney has acquired the said plot by way of purchase and thereafter got building plans approved thereon from Karachi Building Control Authority (K.B.C.A.) for hollow plus ground plus two floors through covering letter and plan/map, dated 19-8-1997. The applicant in pursuance of his construction activities obtained other necessary approvals in relation to car parking, water, gas, electricity and sewerage facilities. In this connection the applicant claims to have invested a huge amount of money.
3. The respondent No,1, the Assistant Commissioner and S.D.M. Of Civil Lines subsequent to raiding the premises, arresting the labourers on site and thereafter releasing them on bail on 19-12-1997 and 20-12-1997, passed the impugned order, dated 23-12-1997 purportedly under section 133 of the Cr.P.C., directing an immediate stoppage and halt of the construction activities. The reasons attributable for such an order as contained therein are that following joint complaints from the residents the construction at site was prima facie moving towards a high rise structure; such construction activities were causing public nuisance namely "disturbance of privacy, shortage of water supply, blocking of air wind, sun light etc."
4. I heard the learned counsel for the applicant and the State as well as the respondent No,1 in person and perused the record.
5. Since the matter concerns interpretation of section 133 of the Cr.P.C. It would be pertinent to reproduce the same for advantage:-- "133. Conditional order for removal of nuisance.--- (1) Whenever a District Magistrate, a Sub- Divisional Magistrate or a Magistrate, of the First Class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel' which is or may be lawfully used by public, or from any public place, or that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated, or that the construction of any building, or the disposal of any substance, as likely to occasion conflagration or explosion, should be prevented or stopped, or that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary, or that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public, or that any dangerous .Animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order, to remove such obstruction or nuisance; or to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation; or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or to prevent or stop the erection of, or to remove, repair or support, such building, tent or structure; or to remove or support such tree; or to alter the disposal of such substance; or to fence such tank, well or excavation, as the case may be; or to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Magistrate of the First or Second Class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.
(2) No order duly made by 'a Magistrate under this section shall be called in question in any Civil Court.
Explanation.--- A 'public place' includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes."
6. A careful perusal of the fourth and fifth paragraphs of section 133(1), Cr.P.C. Above confirms that in relation to the construction of any building, building/or structure generally, the Magistrate can only pass orders and assume jurisdiction under section 133 where such construction or building or structure are likely to cause conflagration or explosion or that the same are likely to cause any injury to persons living or carrying on business in the neighbourhood or passing by. Admittedly the reasons for passing of the impugned order are extraneous to the pre-conditions of section 133. The respondent No,1 has passed the order for the reasons that the construction has caused a breach of privacy, shortage of water supply and blockage of air and light to the residents. Additionally, he has stated orally at the time of hearing that the construction was beinf carried out in dissonance with the approved plan which facts are categorically disputed by the learned counsel for the applicant, Be that as it may, even if hypothetically speaking the version of the respondent No,1 is correct, the same would not justify him to assume jurisdiction or to interfere with construction or stop the same.
In relation to a building or construction thereof the Magistrate while assuming jurisdiction under section 133 of the Cr.P.C. Ought to have first ensured after proper investigation, that the construction, the building or its structure are likely to cause conflagration or explosion or that the same are likely to cause any injury to persons living or carrying on business in the neighbourhood or passing by. Additionally, the Magistrate could take cognizance if he comes to the conclusion that the construction material lying on a public way is causing unlawful obstruction or nuisance. It is not enough that the residents complain of breach of easmentary or provide rights or that the construction violates the rules, regulations and the building plans passed by the K.B.C.A. In Inayatullah v. Abdul Majid 1969 PCr.LJ 300 a saw mill was installed in the basement of a residential building which caused vibrations and noise. It was held that since no damage or danger of falling of the building existed, mere nuisance as complained by the residents and a few neighbours could not warrant the Magistrate to invoke his powers under section 133 of the Cr.P.C. The provision under section 133, Cr.P.C. Is only available in relation to public nuisance. In Abdul Kader v. The Chairman, Dacca Municipality, PLD 1958 Dacca 525 the Court held that annoyance of a few residents does not constitute public nuisance.
7. Relying upon the above authorities and discussion I would hold that the assumption of jurisdiction by the respondent No,1 and his impugned order, dated 23-12-1997 and the proceedings undertaken by him in this regard are all illegal, without jurisdiction and of no legal effect.
8. Apart from the above there are certain other infirmities in the impugned order and proceedings.
The order passed by a Magistrate under section 133 of e the Cr.P.C. Ought to be a conditional order and not an absolute one. (see Muhammad Ishaque v. The State 1973 PCr.LJ 26) . In the present case the respondent No,1 has passed an absolute order by directing stoppage of construction. This by itself is sufficient to annul the impugned order. Additionally, it has also been contended that the impugned order is void since it has been passed in breach of natural justice. This also appears to be the case in view whereof the impugned order has no legs to. Stand..
9. Before finally parting with the discussion I would like to observe that in this particular case the applicant feeling aggrieved against the impugned order has directly filed the present application under section 561-A of the Criminal Procedure Code. Normally the applicant impugning the order passed under section 133 of the Cr.P.C. Or under any other provision should exhaust the remedies available under the statute unless, of course where there exist exceptional circumstances to justify a direct interference to, the High Court (see Moinuddin v. Punnoo 1993 PCr.LJ 215). Such exceptional circumstances exist where the impugned order is completely without jurisdiction or where the very preconditions attached thereto are not fulfilled before passing of that order or where the alternate remedy provided under the statute is very onerous, inefficient, not efficacious or is a farce or an exercise in futility. The present case falls under such. Exceptional circumstances as the cognizance by the Magistrate, the impugned order and the proceedings under section 133 are all completely without jurisdiction since the very pre-conditions attached to section 133 have not been met. In addition to this I also feel that under Article 203 of the Constitution the High Court is entrusted with the power to supervise and control all Courts subordinate to it (see M. Osman v. Tajammul Hussain PLD 1992 Kar.
173. In Haleem Shah v. The State PLD 1996 Kar. 306 a Division Bench of this Court has held that the High Court in the exercise of its power of superintendence is competent to correct any order passed by subordinate Courts in violation of law.
10. The above are the reasons for the short order, dated 23-12-1997 whereby the proceedings undertaken by the respondent No,1 in Case No,2 of 1997 were quashed and the order under section 133 of the Cr.P.C., dated 23-12-1997 was set aside.