Petitioner has called in question, through this petition the order dated 15-10-1996 passed by Director Building Control Department, H.D.A. through which building in question was declared to be dangerous and its demolition was ordered.
2. Brief facts as stated in the petition are that the petitioner is co-sharer to the extent of one anna in a building situated at Survey No,891, Ward 'D', Station Road, Hyderabad, measuring 822.2 square yards (hereinafter referred to as the building in question); that the building consists of one shop and one godown on ground floor, six residential flats on first floor and four flats on the second floor; that by virtue of one anna share, the petitioner is in occupation of one shop and one godown on the ground floor and one residential flat on second floor; that due to tireless efforts of the petitioner several occupants were evicted and major portion of the building is lying vacant; that the previous owner of 50 paisa share namely Nisar Ahmed sold his share to respondent No,1 in the year 1993, who, as alleged in the petition, pressurised the petitioner to surrender his share by vacating the premises in his possession; that the petitioner filed a suit before the Court and obtained ad interim injunction; that on the representation of respondent No,1 the official respondents Nos.2 to 4 declared the building in question to be dangerous and in a dilapidated condition; that such declaration by the Hyderabad Development Authority (hereinafter referred to as HDA) is in violation of Building Rules as well as in violation of the principles of natural justice; that the building in question is neither in a dangerous state nor in a dilapidated condition. Petitioner has sought following reliefs in his petition:---
(i) that the impugned order dated 15-10-1996 passed by respondent No,3 and order dated 9-12- 1996 passed by respondent No,4 are without jurisdiction, without lawful Authority, null and void and not binding on the petitioner and as such liable to be quashed and set aside.;
(ii) that the respondents be restrained from implementing the order dated 15-10-1996 and appellate order dated 9-12-1996 through themselves, their agents, attorneys and subordinates and further be restrained the respondents from dispossessing the petitioner from the shop and godown situated on the ground floor and flat situated on second floor of the building in question except due course of law.
(iii)..............................
(iv)
3. We have heard Mr. M.M. Aqil Awan, Advocate for the petitioner and Mr. S. Masood Ali and Anwar Zaheer Jamali, Advocates for respondents. It was strenuously argued by Mr. M.M. Aqil Awan that the order dated 15-10-1996 passed by the Director, Building Control Department, H.D.A. is illegal and violative of section 14 of the Sindh Building Control Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979). He has relied upon the case of Furqan Ahmed v. Deputy Controller of Buildings and another (1984 CLC 2476) and the case of Abdul Aziz and 4 others v. The Director-General, Karachi Development Authority and 2 others (1990 CLC 1191). This contention has been vehemently opposed by the Advocates appearing for the respondents. They have referred to Annexure 'D' filed with the petition which is a letter dated 20-8-1996 issued by Assistant Director Buildings, Hyderabad and one copy. addressed to petitioner which indicates that the matter pertaining to declaration of the building in question as dangerous was pending before the H.D.A. Mr. Awan has also heavily relied upon this document in order to show that till August, 1996, the building in question was declared not to be dangerous but within a span of two months the same was subsequently declared to be dangerous. Respondents Nos.2 to 4 in their counter-affidavits have filed copies of notices in order to show that the notices were issued to the petitioner who attended the proceedings. Our attention was also invited to Annexure 'I' filed with the petition which is an appeal under section 16 of the Ordinance, 1979 filed by the petitioner. In the said memo. of appeal, petitioner has not raised this ground that he was not heard before passing of the impugned order by H.D.A. He has also not raised the question of violation of principle of natural justice in the memo. of said appeal. The grounds urged before the appellate authority of the Building Control Department was that impugned order passed is mala fide; that the building is quite safe and there is no likelihood of its collapsing; that the respondent No,1 being a bueder wants to usurp the right of petitioner; that the technical persons from H.D.A. have not inspected the site and that a civil suit is pending between the parties.
4. Mr. Aqil Awan was not in a position to explain as to why plea of violation of natural justice was not urged before the Appellate Court. It is requirement of section 14(1) of the Ordinance, 1979 that where a Building Authority is satisfied that a building is likely to collapse, then after holding such inquiry as it deems fit, it may order for carrying out the specific repairs or may pass an order for demolition of whole or any part of the said building. Subsection (3) to section 14 provides that where the whole or any part of the building is to be demolished then the Building Authority will require the occupiers to vacate the building by issuing them notices and if the occupiers fail to vacate the same within the specified time, it may order their ejectment before. In our view, these provisions are enacted in order to safeguard lives of inhabitants of dangerous and dilapidated buildings. It is now common experience that such old buildings in the cities of Karachi, Hyderabad, Sukkur, Multan, Lahore, Faisalabad and other cities of this country which were constructed prior to partition i,e, 1947 are now in a dangerous stage and many of them had collapsed during the moonsoon seasons resulting in death of several innocent persons. However, before passing any order, it is incumbent upon the Building Control Authorities to issue notices to the occupiers who may be, subsequently, evicted by declaring such building as dangerous. This notice may be issued even at the stage of holding of preliminary inquiry as envisaged in subsection (1) to section 14 of the Ordinance, 1979. This is in consonance what was held earlier by this Court in the cases of Furqan Ahmed and Abdul Aziz (supra). In the last-mentioned case, a Division Bench of this Court comprising Ajmal Mian and Mukhtar Ahmad Junejo, JJ. (as their lordships then were), held, inter Alia, that in the absence of any expressed exclusion of the right of hearing of the affected persons, the technical committee is bound to give notice, inter alia, to the occupiers so that they may place their point of view before any opinion is formed about the condition of the building concerned. The view held in the case of Abdul Aziz was followed by the same Bench in the case of Vincent and others v. Karachi Development Authority and others (1992 CLC 518).
5. In the present case, it has been successfully proved by the respondents through the documents filed with the petition and through the affidavits that the inquiry proceedings were conducted by the H.D.A. before declaring the building in question to be dangerous and in a dilapidated condition and that the petitioner had participated in the same, which fact, petitioner was not able to deny in the memo. of appeal filed before the appellate authority. It is pertinent to observe that in the said appeal, the petitioner has shown some eight persons, in addition to respondent No,1, as co-sharers which he has admitted in contents of the memo. of appeal. None of the other co-sharers, who all, admittedly holds share up to the extent of 15 annas, have come forward to agitate this point that they were not heard prior to declaration made by H.D.A. It has also not been denied by the petitioner that alongwith him the other co-owners are in occupation. None of the other co-sharer have challenged the impugned order. It is the present petitioner who holds only one anna share in the property in question, had challenged the impugned order. He was also required to implead the other co-owners as respondents in this petition as they were party before the appellate authority. It is settled law that where a party, who has a vested right in an immovable property and by virtue of that he becomes necessary party, if not impleaded in a petition then such petition would not be maintainable. If any reference is needed see Abdul Rehman v. Province of Sindh and 3 others (1986 CLC 2635), and Ch. Riaz Ahmed Yazdani v. Federation of Pakistan and others (1990 CLC 1406).
Nonetheless, we are also of the considered view that the petitioner was heard prior to issuance of the impugned order:
6. It was also argued on behalf of petitioner that the order passed by appellate authority is not a speaking order and that it was passed without hearing the petitioner; therefore, it is liable to be set aside. Reliance was placed on the case of Tehmina Mufti v. University of Sindh, Jamshoro and another (1995 SCM R 65). The respondents were not in a position to successfully rebut this allegation of the petitioner. In the case of Tehmina Mufti (supra) the point involved was whether an appellant is entitled to personal hearing before the Syndicate during hearing of an appeal under section 40 of the University of Karachi Act, 1972. It was held by a Full Bench of Honourable Supreme Court that such appellant would be entitled to be heard in person before disposal of review/appeal. Reference was made to an earlier decision of the Supreme Court in the case of Chief Commissioner, Karachi and another v. Mrs. Diwa Sohrab Katrak (PLD 1959 SC 45). It is settled law that in all proceedings, judicial, quasi-judicial or administrative, the principles of natural justice are fully applicable and are to be read as part of every statute unless its application is specifically excluded. In the famous case University of Dacca v. Zakir Ahmad (PLD 1965 SC 90) it was held that 'this rule applies even though there may be no positive words in the statute or legal documents whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness". This rule of personal hearing would be equally applicable in the matters of appeal arising out of section 16 of Ordinance, 1979. We are conscious of the fact that valuable interest of parties are involved in immovable properties and they cannot be deprived without adopting due course of law. The Appellate Authority constituted for hearing appeals is required to afford personal hearing to the appellants and to the affectees of the orders passed under section 14 of the Ordinance, 1979 and thereafter, to pass a speaking order which must, at least, indicate that the parties were heard and their legal and genuine grievance was heard and considered.
7. In this petition the two orders, one dated 15-10-1996 passed by respondent No,3 namely Director Building Control, H.D.A. and the other order dated 9-12-1996 passed by the Director-General, H.D.A. are assailed on the ground that the petitioner was not heard. In so far the first order dated 15-10- 1996 is concerned, we are of the considered view that reasonable and proper opportunity was afforded to the petitioner to place his case which was noted by the Authority passing the said order. The first order is based on the opinion of experts who were members of the Technical Committee. They were either architects or structural engineers. No irregularity or perversity was pointed out in the first order. As far as second order is concerned i,e, dated 9-12-1996 passed by the Director-General, H.D.A., through which appeal filed by the petitioner under section 16 of the Ordinance 1979 was rejected, it appears that the opportunity of personal hearing was not afforded to the petitioner. At this stage we have heard learned counsel for the petitioner at length. We have gone through all such documents as referred by him and have also gone through the case-law. In our view no fruitful purpose would be served if the matter is again referred to Appellate Authority i,e, Director-General, H.D.A. who is not before this Court. Once we have come to the conclusion that there is no illegality or irregularity in the order dated 15-10-1996 passed by the respondent No,3 there would be no purpose for remanding this case to the Director-General, H.D.A.
8.As a result of above discussion, this petition is liable to be dismissed in limine alongwith the listed application. Order accordingly.