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Official Citation: 2024 SHC 130
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-02-15
Parties: Saad Aqil vs Province of Sindh & Others
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-02-15, officially reported as 2024 SHC 130. In this matter between Saad Aqil and Province of Sindh & Others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024SHC130
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Muhammad Abdur Rahman Title: Saad Aqil vs Province of Sindh & Others Case No.: C.P. No.D-6115 of 2023 Date of Judgment:2024-02-15 Reported As: 2024 SHC 130 Result: Petition Disposed of
Judgment ORDER MOHAMMAD ABDUR RAHMAN, J. The Petitioner has maintained this Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking to demolish the construction on Plot No.OT-08/61, Old Town Quarters, Kharadar, Karachi, admeasuring 398 square yards (hereinafter referred to as the "Said Property") on account of the construction of the building being designated as "dangerous" and pursuant to Section 14 of the Sindh Building Control Ordinance, 1979 (hereinafter referred to as the SBCO, 1979"). 2. The facts of this Petition are not in dispute, the Petitioner is the owner of the Said Property on which is constructed a building and which, from the photographs that have been filed, is clearly a construction that had been built prior to partition. From the photogprahs it is apparent that the building constructed is in a ruinous state but which cannot be demolished as it is purportedly occupied by a solitary tenant. The Petitioner has also filed a letter dated 29 December 2023 confirming that, despite being an old construction, the Said Property does not find mention in the list of Protected Heritage maintained under the Sindh Cultural Heritage (Preservation) Act, 1994. 3. The Sindh Building Control Authority (hereinafter referred to as the "SBCA") have also filed their report confirming that the construction that exists on the Said Property is dilapidated and dangerous and is liable to be demolished. They however have also reconfirmed that the Said Property is partially occupied by one tenant and whose possession of the premises is preventing the construction from being demolished. 4. Mr. Khilji Fahad Arif, entered appearance on behalf of the Petitioner and has contended that the provisions of Section 14 of the SBCO, 1979 will prevail over the provisions of Sections 13 of the SRPO, 1979 (hereinafter referred to as the "SRPO, 1979"). He pleaded that the SBCO, 1979 is a special law
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and must prevail over the general provisions of the SRPO, 1979 which restrains the eviction of a tenant without first making an application under one of the clauses of Sub-Section (2) of Section 15 of the SRPO, 1979. He contended that as the construction on the Said Property had been declared as being "dangerous", there was no need for the Petitioner to maintain an application under clause (vi) of Sub-Section (2) of Section 15 of the SRPO, 1979 to seek the eviction of the Respondent No. 5. 5. Mr. Dhani Bux Lashari, counsel for the SBCA has supported the contentions as raised by Mr. Khilji Fahad Arif. Mr. Miran Muhammad Shah, the Additional Advocate General has confirmed that the Said Property is not designated as protected heritage under the provisions of the Sindh Cultural Heritage (Preservation) Act, 1994. Finally and despite notice having being issued and served on the Respondent No.5, no one has entered appearance on his behalf. 6. We have heard the counsel for the Petitioner, the Counsel for the SBCA and the Additional Advocate General and have perused the record. The Petition raises two questions and which are: (i) as to whether the protection given to a tenant by Section 13 of the SRPO, 1979 would be overridden by the provisions of Section 14 of the SBCO,1979 where a building is declared by the SBCA to have a likelihood of collapsing and hence would be classified as a "dangerous" building; and (ii) as to what rights, if any, would an occupier of such a building having after the demolition of the structure. As the construction is not located within the jurisdiction of a Cantonment Board, this judgement will not opine on an identical issue that could be raised in respect of constructions which are declared as "dangerous" under the provisions of the Cantonment Act, 1924 and which will have to be considered separately in appropriate proceedings. A. The Duty Cast on the SBCA to regulate "Dangerous" Buildings (i) The Provisions of the Sindh Building Control Ordinance,1979 7. The construction of buildings in the Province of Sindh, excluding the areas coming within the domain of a Cantonment, are regulated under the provisions of the SBCO, 1979 the preamble of which reads as under: "... Preamble. Whereas it is expedient to regulate the planning, quality of construction and buildings control. Prices charged and publicity made for disposal of buildings and plots by builders and societies and demolition of dangerous and dilapidated buildings in the province of Sind Section 14 of the SBCO, 1979 regulates the right of a person to remain in occupation of a building that is considered by the SBCA to be dangerous. The section reads as under: " ... 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 time 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 time being in force order that occupier or occupiers of the building be ejected, if necessary, by force.
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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." (ii) The Obligation on the SBCA 8. As is apparent the purpose of the SBCO, 1979, as indicated in the Preamble, was inter alia to regulate the demolition of "dilapidated" and "dangerous" buildings within the Province of Sindh. The duty cast is clearly in furtherance of the duty of the SBCA to ensure that construction in the Province of Sindh is to safeguard the safety of the public.[1] We have no doubt that such an obligation includes the demolition of dilapidated" and "dangerous" structures which have in the past led to a loss of human life. It is in this regard, that the provisions of Sub-Section (1) of Section 14 of the SBCO,1979 cast on the SBCA a mandatory obligation, to take notice of a structure which is "likely to collapse" and after conducting an enquiry to either compel the owner of the structure to either: (a) carry out specific repairs, or (b) to demolish the whole or a part of the building. We would stress that the obligation that is cast on the SBCA to take notice, is not to wait for information to be placed before it regarding the likelihood of a building to collapse but rather it is a continuing obligation to take a proactive role by itself in reviewing the construction of buildings within its jurisdiction so as to identify buildings that are likely to collapse and after completing an enquiry, in accordance with the provisions of Section 14 of the SBCO, 1979, to forthwith take action to direct the owner to either carry out specific repairs to remove the likelihood of the building from collapse or by directing the owner or occupier to demolish the "whole" of the building or a "part" of a building to eliminate the "likelihood of the building from collapse". (iii) The application of the provisions of Section 14 of the SBCO, 1979 9. As per Sub-Section (1) of Section 14 of the SBCO, 1979 where the SBCA has "notice" of the "likelihood of a building to collapse", it must conduct an enquiry and after determining its findings in that enquiry by a speaking order has the authority to order for either "specific repairs" to be carried out to ensure that the building does not collapse or in the alternative to order for the demolition of the building. Sub-Section (2) and Sub-Section (3) of Section 14 of the SBCO, 1979 elaborate on the powers conferred on the SBCA under Sub-Section (1) of Section 14 of the SBCO, 1979 by identifying the manner in which the specific repairs or demolition is to be carried out. 10. In respect of specific repairs to be conducted to a building or a portion of a building under Sub- Section (2) of Section 14 of the SBCO, 1979 or for demolition of the building under Sub-Section (3) of Section 14 of the SBCO, 1979, it is first incumbent on the SBCA to carry out an enquiry as envisaged by Sub-Section (1) of Section 14 of the SBCO, 1979. The enquiry must commence by issuing a notice, which should be headed as being issued under Section 14 of the SBCO, 1979, and should be issued at the minimum to the owner and any occupier of the building and affording each of them an opportunity of a hearing as mandated by the proviso to Section 14 of the SBCO, 1979. The enquiry envisaged to our mind must have within its members a qualified structural engineer who is able to identify the defects in the building. The enquiry, after having heard all concerned, may by a speaking order direct action to be taken to remedy the defects in the structure of the building or order for the demolition of a building. Clearly, the order passed pursuant to the enquiry must be proportional and the SBCA should not be advocating the demolition of the building as a first resort but as a last resort. As such any order passed for demolition must necessarily clarify as to why repairs to the building would not eliminate the likelihood of the building from collapse. Thereafter, on the basis of the findings of the enquiry, the SBCA must, in the event that building is required to be repaired, first issue a notice to the owner of the building to commence making the repairs required by the enquiry within a prescribed time. If the owner fails to commence such repairs within the time prescribed another notice would be issued, this time, to the occupier to commence such
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repairs. In the event that the repairs are commenced by the occupier, unless it can be shown by contract as between the occupier and the owner that such an obligation to cause the repairs lay on the occupier, the cost incurred can be recovered by the occupier from the owner. In the event that both the owner and the occupier each fail to carry out the repairs within the prescribed time, then the SBCA is empowered to issue a notice under Sub-Section (3) of Section 14 of the SBCO, 1979 directing whoever is in occupation of the building to vacate the building and the SBCA is obligated at its own cost and expense to cause the building to be demolished. If the occupiers of the building do not vacate the building in the time frame prescribed, the SBCA is obligated to cause for any person in occupation of the building to be "ejected" and if resistance is made to use "force" to secure such "ejectment". If the enquiry conducted under Sub-Section (1) of Section 14 of the SBCO, 1979, in the manner as clarified above, comes to the conclusion that the building is liable to be demolished, then the SBCA can directedly resort to the provisions of the Sub-Section (3) of Section 14 of the SBCO,1979 and exercise its power, as contained in Sub-Section (1) of Section 14 of the SBCO, 1979, to order for the demolition of the building. Any cost incurred by the SBCA to conduct such demolition will be at the sole cost of the owner and can be recovered, as clarified in Sub- Section (2) of Section 14 of the SBCO, 1979 "as arrears of land revenue." 11. The provisions of such an enquiry are subject to the proviso to Section 14 of the SBCO,1979 which mandates that a hearing must be given to all "persons" who are likely to be affected by an order passed by the SBCA. We are clear that the expression "person" as used in the proviso would mandatorily include the owner of the property and a person in occupation of the property and may, dependent on the facts and circumstances, also include any other class of persons impacted by the repairs and demolition such as residents in properties neighbouring the property. (iv) The Case Law that has developed on the Interpretation of Section 14 of the SBCO, 1979 12. The provisions of this Section have come to be interpreted before this Court and before the Honourable Supreme Court of Pakistan. In the decisions reported as Furqan Ahmad vs. Deputy Controller of Buildings and another,[2] Abdul Aziz vs. The Director- General Karachi Development Authority and 2 others,[3] Vincent vs. Kaachi Development Authority,[4] Nasir Khan vs. Aziz Ahmed,[5] and Messrs Haji Khuda Bux Amir Umar vs. Karachi Building Control Authority and another[6] it was held that the failure to issue notices prior to issuing an order for the demolition of the building would be in excess of the jurisdiction conferred on the SBCA and would be illegal. Regarding the enquiry to be carried out it has been held in the decision reported as Messrs Pakistan Pharmaceutical Products Ltd. and 4 others vs. Karachi Building Control Authority[7] that "wide powers vested in the SBCA to form an opinion above the state of the structure" as there was no mandatory requirement in the statute that the findings of the enquiry are to be based on any particular material. We also have noted that there is a difference of opinion as between two Learned Single Judges of this Court as to whether the provisions of Section 14 of the SBCO, 1979 confer on the SBCA the authority to demolish a building. In the decision reported as Muhammad Aftab vs. K.B.C.A.[8] while hearing an injunction application it was considered that: "... 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 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." Conversely in the decision reported as M. Zekar and 18 others vs. Lal Taj Khan,[9] again while considering an injunction application, the learned single Judge while disagreeing with the
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interpretation cast in Muhammad Aftab vs. K.B.C.A.[10] has held that: "... With respect, I am unable to agree with the foregoing conclusion in Muhammad Aftab's case for the following reason. Relying on subsection (3) of section 14 of the 1979 Ordinance the Court in Muhammad Aftab came to the conclusion that: "In case the building is not vacated, the authority is empowered merely to eject the occupiers through use of force". The operative portion of subsection (3) of Section 14 reads as follows: "...the Authority may, notwithstanding any other law for the time being in force order that the occupier or occupiers of the building be ejected, if necessary, by force". In Muhammad Aftab the Court was quite correct in interpreting the words "the authority may...order that the occupier or occupiers of the building be ejected, if necessary, by force" to mean that the K.B.C.A is "empowered to eject the occupiers through use of force". The Court was also correct is using the word "merely but only when construing the import of subsection (3) of Section 14. What I am unable to agree with is the Court's conclusion in Muhammad Aftab that the K.B.C.A has no power at all to carry out demolition itself if it forms the opinion that the whole or part of a building is to be demolished. Employing the process of reasoning used in Muhammad Aftab's case, this power, in my opinion, is 'conferred by subsection (1) of section 14 itself which, in pertinent part, provides that if it comes to the notice of the K.B.C.A that a building is likely to collapse, the K.B.C.A may, after conducting such enquiry as it deem fit, order for carrying out the demolition of the whole or part of the building. If, in subsection (3) the K.B.C.A can order that the occupier or occupiers of the building be ejected, if necessary, by force and then itself proceed to eject the occupiers through use of force, there is reason why, in the case of subsection (1) of section 14, the K.B.C.A, after ordering for demolition of the whole of part of a building, cannot proceed to demolish the building itself. In my opinion subsection (1) of section 14 of the 1979 Ordinance fully empowers the K.B.C.A to demolish a building that has been determined to be dangerous and beyond repair (a Category-I Dangerous Building) or, if capable of repair, which has not been repaired as required (a Category- II Dangerous Building). In both cases the demolition can be carried out by the K.B.C.A itself or through a person acting on its behalf. If a building is to be demolished by the K.B.C.A in exercise of the power conferred by Section 14 of the 1979 Ordinance, it must first be cleared by the K.B.C.A of all occupiers. That is the subject of subsection (3) of section 14 of the 1979 Ordinance." As is evident, we find ourselves in agreement with the interpretation that has been cast on Section 14 of the SBCO, 1979 in the decision reported as M. Zekar and 18 others vs. Lal Taj Khan[11] and respectfully disagree with the interpretation cast in the decision reported as Muhammad Aftab vs. K.B.C.A.[12] that the SBCA lacks the jurisdiction to demolish a building. The language used in Sub- Section (1) of Section 14 of the SBCO, 1979 empowers the SBCA to "order for carrying out the ... demolition of the whole or part of the building" and clearly there is nothing in any provisions of the SBCO, 1979 including, but not limited to, the provisions of Section 14 of the SBCO, 1979 to restrict the SBCA, when passing such an order, to prevent it from directing its officers to affect the demolition. The decision in Muhammad Aftab vs. K.B.C.A.[13] to that extent is clearly not a correct interpretation of the provisions of Section 14 of the SBCO, 1979 and to extent should not be followed. B. The Rights of Persons under Section 14 of the SBCO, 1979 (i) The issue 13. In practical terms, the issue that nearly always arises whenever a notice is impugned under Section 14 of the SBCO, 1979 before this court is not as to whether the building that is required to be demolished is or is not "dangerous" but rather as to what the rights are of the occupiers in the
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property after it is demolished. This is primarily on account of the provisions of Section 14 of the SBCO, 1979 being silent as to the rights of an occupier post the repair or demolition and also on account of this section being used by an owner of a property in collusion with officials of the SBCO, 1979 to bypass the provisions of the Sindh Rented Premises Ordinance, 1979 (SRPO, 1979) and indirectly "evict" the tenant from his possession of a tenement. While the right to demolish and reconstruct on a property, if exercised by an owner under clause (vi) of Sub-Section (2) of Section 15 of the SRPO, 1979 would secure the rights of a tenant to be reintroduced into a tenement when a building is reconstructed on a property which housed his tenement, Section 14 of the SBCO, 1979 fails to determine the rights of persons who are in occupation of such buildings after such a building is demolished. 14. To our mind, the rights of a person who is in occupation of premises under, post the demolition, would depend on his status in the property and which to our mind can be classified in five separate categories: (i) A person can be classified as the owner of a property whereby he possesses all the right, title and interest in and to an immovable property; (ii) In the event that a person is not the owner of a property, his status as an occupier may be that of a "lessee" and whose obligations with a "lessor" would ordinarily be regulated under the provisions of the Transfer of Property Act, 1882 (hereinafter referred to as the "TPA, 1882") and whereby he would under Section 105 of the TPA, 1882 be granted by the owner of the Said Property a "right" in the property to enjoy such property" for a defined period of time; (iii) With the promulgation of what have come to be known as "Rent Laws', the "right to enjoy such property" were restated and which are generally in the Province of Sindh at present defined by the SRPO, 1979, while in respect of properties located in the jurisdiction of a Cantonment with the Province of Sindh, such rights and obligations are in the Cantonment Rent Restriction Act, 1963. In the event the relationship comes to be regulated by the provisions of the SRPO, 1979 the tenant's status is, however, protected by Section 13 of the SRPO, 1979 which states that: " ...13. No tenant shall be evicted from the premises in his possession except in accordance with the provisions of this Ordinance." There being no right conferred on a "landlord", under the provisions of the SRPO, 1979, to evict a tenant on the determination of the term of a lease or tenancy, the occupation of a tenant in a tenement is secured under Section 13 of the SRPO, 1979 and his character in respect of the tenement is colloquially referred to as a "statutory tenant" and who retains the right to remain in the tenement and can only be ejected thereafter in accordance with the provisions of Section 14, Clauses (i) to (vii) of Sub-Section (2) of Section 15 and Sub-Section (2) of Section 16 of the SRPO, 1979; (iv) Where the relationship of a "landlord" and a "tenant" does not exist either the TPA 1882 or under the SRPO, 1979, the legal character of a person in possession of an immovable property, who has been introduced into a property at the behest of the owner, must be classified as a "licensee" and whose rights are determined under the provisions of the Easements Act, 1882; and (v) Where a person enters onto a property without the consent of the owner, his status is neither that of a "tenant" nor that of a "licensee" and can only be classified as that of a trespasser. (ii) The Right of an owner when a notice is issued by the SBCA under Section 14 of the SBCO, 1979 15. Being the owner of the entire estate in the land, clearly after the demolition of a structure, on the basis of an order passed by the SBCA under Section 14 of the SBCO, 1979, an owner of the property would have all the rights, title and interest that were invested in him in respect of the property prior to its demolition. This would however be subject to the right of the SBCA to institute proceedings for recovery of amounts expended by the SBCA for the demolition of the structure and which would be recoverable by the SBCA as arrears of land revenue thereby giving the SBCA, unless such amounts
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are paid to the SBCA by the Owner, the right to attach and sell the property to recover such amounts. (iii) The Right of a Lessee under the TPA, 1882 when a notice is issued by the SBCA under Section 14 of the SBCO, 1979 16. As the provisions of Section 14 of the SBCO, 1979 do not in any manner state that the rights of the "occupier" would determine on the issuance of a notice under Section 14 of the SBCO, 1979, we would consider that the rights of the lessee have to be considered in terms of their rights and obligations as agreed in the Deed of Lease. These rights would ordinarily be regulated by the provisions of the TPA,1882. A lease under Section 105 of the TPA, 1882, being a right not to the possession of a property but a right in the property itself[14] would to our mind not automatically determine on a property being "vacated" by a tenant pursuant to an order under Section 14 of the SBCO, 1979. The only argument that we can consider that could be raised was that the lease had determined on account of the subject matter of the property have been demolished i.e. the lease stood frustrated. Clearly, as per clause (e) under heading B of Section 108 of the TPA, 1882, unless specifically contracted otherwise, just because the construction on a property is declared as "dangerous" under Section 14 of the SBCO, 1979 and on account of which the structure housing the lessee is demolished, the right of the lessee in the property would not ipso facto terminate the…
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