1. ' By this order I propose to dispose of both the applications put up for hearing today. The first application is filed by the plaintiff under' Older XXXIX, Rules 1 and 2, C.P.C., whereas the second application is filed under Order XXXIX, Rule 4, C.P.C., by the defendant seeking discharge of the ad interim injunction order.
2. ' The plaintiff's case is that he is owner of premises No,G-1 (Ground Floor) Survey No,6, Survey Sheet No,RC-2 Ranchore Quarters, Karachi since its purchase through registered sale-deed, dated 14-12- 1985. The plaintiff also claims ownership of premises No,G-3 (Ground Floor) of the same plot through sale agreement, dated 20th October, 1998. On 19-9-1998, the plaintiff alleges to have been served with notice under section 14 of Sindh Building Control Authority Ordinance, 1979 hereinafter referred as 1979 Ordinance, calling upon him to remove the entire building on Plot No,6, RC-2, Ranchore Quarters, Karachi within 24 hours failing which action of demolition was threatened to be undertaken at the risk and costs of the plaintiff. The notice is addressed to one Suleman. In the notice, copy whereof has been filed as Annexure 'C' to the plaint, it is further mentioned that in the opinion of Karachi Building Control Authority, the entire building on Plot No,6, RC-2, Ranchore Quarters, Karachi is ruinous and dangerous requiring it to be repaired. The plaintiff claims to have filed an appeal upon service of the said notice which, according to the plaintiff, has remained undecided with the result that the present proceedings have been filed. Along with the plaint, the application for injunction, placed at serial No,1, was filed. On 22-10-1998, the defendant, by way of ad interim order, was directed to maintain status quo which has continued since then.
3. ' In the counter-affidavit filed by the defendant it is stated that the structure on the subject plot is dangerous which may collapse at any time causing loss of human life and property. According to the defendant, the appeal filed by the plaintiff has been rejected and notice, dated 19-9-1998 was issued on the basis of report of the Dangerous Buildings Committee (Technical Committee) which is claimed to have lawfully been issued. During the pendency of proceeding, on 12-3-1999, my learned brother Ataur Rehman, J. Had directed to Karachi Building Control Authority to serve notice upon the plaintiff in accordance with the procedure laid down under section 14 of the Ordinance and Chapter 10 of Karachi Building and Town Planning Regulations Part-I. On 12-4-1999, a notice, purportedly under section 14 of the 1979 Ordinance, was served upon the plaintiff through his learned counsel accompanied by the report/order of the Dangerous Building Committee (Technical Committee).
4. ' Mr. Muhammad Sadiq has argued that notice, dated 19-9-1998 and/or the notice, dated 12-4-1999 are not in accordance with the procedure prescribed under section 14 of the 1979 Ordinance and Chapter 10 of the Karachi Building and Town Planning Regulations Part-I. As regards procedure for declaration of buildings as dangerous and their demolition, the learned counsel for plaintiff has referred to the case of Furqan Ahmed v. Deputy Controller of Building 1984 CLC 2476 passed by a Division Bench of this Court wherein upon consideration of the relevant provisions, the following observations were made:--- "Thus, there are two stages for causing demolition of a dangerous building. The first stage is that of getting the building vacated and the next stage is that of causing its demolition. In this case, the first stage seems to have been by-passed and the notice has been issued to the owner straightaway for demolition of the building and its copies have been endorsed to the occupiers of the building as the notice. Of course, the owner have not taken exception to this procedure, probably for the reason that they are interest in the demolition of the building, but one of the occupiers, namely--the petitioner, has objected to it. Obviously, the notice for demolition of the building without hearing the occupiers is against the spirit of law itself. Secondly, the impugned notice was issued under the signature of the Deputy Controller of Buildings. The learned Advocate for the respondent No,1 has produced a copy of an office order regarding delegation of powers and functions of the officers of Karachi Building Control Authority and formation of committees issued on 5th December, 1981 and placed reliance on the powers delegated to the Deputy Controller of Buildings and made pertinent reference to the powers mentioned at serial No,10, appearing at page 5 of the order. It reads---'Issue of notices for dangerous buildings shall be done by the Deputy Controller of Buildings after report by the committee and final orders of Director-General, K.D.A'."
5. ' The provisions of section 14 noted in the above referred judgment which were interpreted in the above referred terms had been substituted through Sindh Ordinance No,3 of 1982 on 6-3-1982 to read in the following terms:--- "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 demotion 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 costs 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."
6. ' The procedure for declaration of buildings as dangerous and their demolition has, thus, undergone change and the insistence from the plaintiff's side to follow the procedure noted in the case of Furqan Ahmed (supra) is not justified. The legislature in its wisdom has substituted the provision as was contained in section 14 of 1979 Ordinance and the changed procedure has now to be applied. The learned counsel for the defendant has referred to Chapter 10 of Karachi Building and Town Planning Regulations Part-I and submits that the defendant authority can carry out demolition upon following the procedure prescribed in the regulation. I am afraid section 14 of the 1979 Ordinance in its amended form does not permit demolition of structure by the defendant authority upon its forming an opinion that the building is dangerous. The Regulations framed by the authority, even with approval of the Provincial Government, cannot enlarge scope of the statute itself. Delegated legislation should be remain within the parameters of the statute itself. The provisions contained in section 14 of the 1979 Ordinance in its amended form allow the authority to form an opinion about any structure if it requires repair or demolition. Such opinion has to be formed after conducting inquiry as may be deemed proper. Obviously, an enquiry pre-assumes determination of an issue which cannot be undertaken without associating the affected person or persons therewith. Once the opinion is formed, as above, and repairs are found necessary, the owner or the occupier is to be called upon to carry out repairs within the period specified by the authority. Upon failure of the owner/occupier to carry out repairs, the authority can proceed to have the building demolished and in such event is entitled to recover cost of demolition as arrears of land revenue. However, in the event of the authority forming an opinion that demolition of the building or its part has to be carried out, notice is to be served in terms of subsection (3) of section 14 of the 4979 Ordinance requiring the occupier(s) to vacate the building within the period notified by the authority. In case the building is not vacated, the authority is empowered merely to eject the occupiers through use of force. Quite surprisingly, no power to carry out demolition of building is vested upon the authority itself in the event of its forming the opinion that the building in question requires to be demolished wholly or in part. The provision may appear to be strange, nevertheless, the non-conferment of the power to carry out demolition appears to be wilful and conscious. The procedure and the constraint upon exercise of power contained in section 14 of the 1979 Ordinance have to be followed in letter and spirit. Unless the procedure prescribed under section 14 is followed, the authority cannot take action as is contemplated in the present case. The procedure prescribed under section 14 of 1979 Ordinance provides safeguards against arbitrary action of the authority to carry out demolition and such logic has to be preserved.
7. ' In the circumstances, the defendant is restrained from carrying out demolition pursuant to notice, dated 19-9-1998 and the notice, dated 12-4-1999. However, the defendant authority is free to initiate proceedings for assessing de novo, the position of the subject structure and take consequential action in accordance with the provision of section 14 of 1979 Ordinance. The two applications are disposed of in the above terms.