In order to appreciate the report of learned Official Assignee, dated 16-10-2001, it would be appropriate to state the backdrop in which the situation has arisen. The instant suit was dismissed on 20-4-2000 with directions to KBCA, the defendant, to take steps in accordance with law for demolition of the unauthorized construction of the project in excess of the approval. No practical efforts were made but seemingly half-hearted attempts were made by KBCA, the situation, therefore, remained unchanged. Another order was passed on 8-9-2000 wherein, inter alia, the Home Secretary, Government of Sindh was called upon to look into the situation immediately and issue necessary directions for implementation of the Court's orders. The diary sheets of different dates further show that the Court has very often recorded its disapproval of the inaction on the part of KBCA. Record also shows that actions of KBCA are circumscribed within formal bureaucratic correspondent, which, as usual, could not bring about the desired results.
2. The Court has already allowed to KBCA assistance of police and civil administration as and when required, and in that behalf Official Assignee has been appointed as Commissioner to supervise the task, and accordingly learned Official Assignee also made efforts. The last report dated 16-10- 2001 of Official Assignee indicates that an attempt was made for demolition but the womenfolk occupying the building put stiff resistance and resorted to stoning. Nazim of locality had also attended during the last operation but he pointed out that some news items had appeared that the Government is likely to regularize the building.
3. Mr. Naim-ur-Rehman, learned counsel for KBCA, in that context has taken me through the latest amendment made in section 19 of the Sindh Buildings Control Ordinance by adding new subsection (1-A) which authorizes the authority to compound an offence. He contended that the import of amendment has been misconstrued. In this regard he referred to the case of Abdul Razak v. KBCA PLD 1994 SC 512 wherein the provisions of section 19 of KBCA Ordinance and relevant regulations under the Karachi Building and Town Planning Regulations, 1979 were examined and it was, inter alia, observed that the discretion given to the authority under section 19 of the Ordinance or under Regulation 16 to compound an offence is to be exercised fairly and reasonably and not at the cost or prejudice of third parties. It was pointed out that there was marked distinction between a criminal liability under section 19 and a civil liability under the Regulations to rectify irregularity/breaches. The authority may compound criminal liability but it cannot regularize a breach of the regulations. The above view was endorsed by Full Bench of Honourable Supreme Court in the case of Ardeshir Cowasjee v. KBCA 1999 SCM R 2883.
4. I agree with Mr. Naim-ur-Rehman. Generally the legal position as interpreted by the Courts is well-settled and it has been frequently observed by the superior Courts that the civil and criminal liability are altogether different and an action in respect of each will be a separate action to be taken under the procedure provided under relevant law. Nevertheless, if a penal action is taken, it would not preclude the authority or a Court from taking any action related to civil liability. No doubt under the circumstances amended Ordinance does authorize the authority to compound an offence and assuming for the sake of arguments that the offence stands compounded, that would simply relieve the delinquent of the criminal liability and absolve him of the penalty provided under section 19 of the Ordinance, it would not, ipso facto, debar the Authority from taking action for violation of the building plan under section 7-A of the KBCA Ordinance. Essentially, therefore, the action purportedly taken under section 7-A of the Ordinance possesses the legal sanctity if it is taken within the four corners of law and guidelines laid down by the Courts in several authorities including those cited above, as such the order of this Court is by all means to be implemented by all concerned. The law recently laid down by Honourable Supreme Court in the case of Muhammad Saleem v. Administrator, KMC 2000 SCM R 1748 regarding the action under sections 6 and 70-A of the KBCA Ordinance by sealing the building, cited by learned counsel is also relevant in the context.
Mr. Naim-ur-Rehman has fairly put up the case in the Court, but since he is appearing on behalf of KBCA he should further advise the KBCA what course is to be adopted within the legal sphere for implementing the order of the Court for the purpose of demolition of the said building.
5. With the above clarification, the Official Assignee is once again required to take necessary steps by associating with him the officers concerned on administrative side. It may be repeated that through the earlier order dated 8-9-2000 even the Home Secretary was called upon to provide necessary assistance, he may, as such, approach the Home Secretary if necessary. The Official Assignee's reference stands disposed of. Fresh report be furnished within two months.
6. As regards the applications C.M.A. No,6001 of 2001 and 6002 of 2001 Mr. Nazir Ahmed, Advocate holding brief for Kh. Shamsul Islam, submits that they do not press this application. Learned counsel present have no objection to this; accordingly these applications stand dismissed as withdrawn.