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Petitioner: M. ZEKAR and 18 others VS Respondent: LAL TAJ KHAN and another
Court Name: Sindh High Court Judge(s): Salman Talibuddin Title: M. ZEKAR and 18 others vs LAL TAJ KHAN and another Case No.:Suit No, 1424 of 2007 and C.M.As. Nos. 6269, 6362, 6419 of 2008 and 9150 of
2007 Date of Judgment:2009-04-17 Reported As: 2009 YLR 1540 Result: Order accordingly Judgment ORDER ' SALMAN TALIBUDDIN, J.---The above matter was fixed in Court on 10-4-2009 for orders on the Nazir's report dated 12-2-2009 and for hearing of C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6419 of 2008 and 9150 of 2007. ' On 10-4-2009 learned counsel for the parties stated that they had received a copy of the Nazir's report and .The same was taken on record. Learned counsel for the parties were heard and orders were reserved on C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6419 of 2008 and 9150 of 2007. During the course of the hearing certain questions were also put by the Court to Mr. Malik, the defendant No, l's representative. These questions and Mr. Malik's response are set out below. ' The applications listed above arise out of the plaintiff's suit, which was instituted on 3-11-2007 by fifteen persons against Mr. Lal Taj Khan. ' The plaintiffs' have alleged that they are tenants in respect of various commercial and residential premises in the building known as Ismail Manzil which is owned by Mr. Khan. The building is constructed on a plot (bearing survey No, GK 1/23 admeasuring 707 square yards) situated at Harris Road, Rachiram Thakardas, Ghulam Hussain Quarters, Karachi. ' According to the plaintiffs, they acquired tenancy rights from time to time from the previous owner of Ismail Manzil against payment of pugree/goodwill. At present they allege to be tenants in occupations of 23 flats and two shops. Details of the facts and shops, and the monthly rent said to be paid by the plaintiffs to the present owner are set out in paragraph 1 of the plaint. ' The plaintiffs assert that after purchasing Ismail Manzil Mr. Khan did not issue the notice required by section 18 of the Sindh Rented Premises Ordinance, 1979 (the "SRPO") to them.
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' Section 18 of the SRPO provides protection to tenants in that a tenant who does not receive the section 18 notice of change of ownership shall not be deemed to have committed a default in payment of rent for the purpose of section 15(2)(iii) of the SRPO. Nothing, however, turns on this alleged failure since the plaintiffs alleged that they have been paying rent to Mr. Khan regularly after coming to know of the change in ownership. ' According to the plaintiffs Mr. Khan accepted rent from them for some time but then refused to do so. ' The plaintiffs also assert that Mr. Khan is in occupation of three flats on the first floor of Ismail Manzil and started to demolish portions of the building in his possession one week prior to the institution of the suit. According to the plaintiffs this was done in order to harass them into vacating their tenements. ' The plaintiffs assert that they are in occupation of the flats together with their families including minor children. Claiming protection under the SRPO, the plaintiffs submit that they cannot be evicted except in accordance with law. 'The only documents attached to the plaint are copies of fifteen rent receipts (Annexures P/1-A to P/1-0) in respect of the premises said to be in the occupation of the plaintiffs, and copies of money order coupons dated 1-10-2007 and postal receipts (Annexures P/2-A to P/2-V) which according to the plaintiffs evidence tendering of rent after Mr. Khan refused to receive it from them. ' The plaintiffs further alleged that the money orders were returned undelivered and state (in Paragraph 5 of the plaint) that the "plaintiffs are now initiating proper legal steps for the deposit of rent in Court". ' On the basis of the foregoing, the relief sought in the suit is: (a) A declaration that the plaintiffs, being lawful tenants of their respective tenements, cannot be dispossessed without due process of law; (b) A permanent injunction restraining the defendant (Mr. Khan) from dispossessing the plaintiffs from their respective tenements and from demolishing Ismail Manzil or any part thereof; (c) Any other relief deemed fit and proper in the circumstances of the case; and (d) Costs. ' Despite service through the bailiff and subsequently by pasting as well as publication, the defendant Mr. Khan has not entered appearance in these proceedings ' In view of the relief sought by the plaintiffs and the position that emerged after the K.B.C.A applied to be made a party it =will be instructive to see how the case has developed since its inception. ' On the same day that the suit was instituted the plaintiffs filed an application under Order. XXXIX Rules 1 and 2 read with section 151, C.P.C. (C.M.A. 9150 of 2007) seeking ad interim orders restraining Mr. Khan and persons acting on his behalf from dispossessing the plaintiffs and/or demolishing Ismail Manzil or any part thereof. ' C.M.A. 9150 of 2007 was put up for orders on 26-11-2007 on which date notice was observed to be issued to Mr. Khan and the parties were directed to maintain status quo. This order has continued to be in force throughout. ' On 11-2-2008 an application under Order I Rule 10, C.P.C. (C.M.A. 1069 of 2008) was filed on behalf of the legal heirs of Ms. Nasim Akhtar (an alleged tenant who was not one of the original plaintiffs) seeking to be joined as plaintiffs in the suit. On 6-10-2008 this application was allowed and the legal heirs were allowed to be joined as plaintiffs Nos. 16, 17, 18 and 19. ' On 21-5-2008 another application under Order I Rule 10, C.P.C. (C.M.A. 4781 of 2008) was filed in this suit, this time by the K.B.C.A seeking permission to be joined as a defendant. The ground on which the K.B.C.A moved this application was that its Technical Committee for Dangerous Building had declared Ismail Manzil as a dangerous building and it was necessary for K.B.C.A to become a party in order to obtain the Court's permission to demolish Ismail Manzil.
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' While C.M.A. 4781 of 2008 was pending determination, on 4-6-2008 K.B.C.A moved an-application under Order XXXIX Rule 4 read with section 151 C.P.C. (C.M.A. 6269 of 2008) seeking a modification of the status quo order to the extent that the K.B.C.A may be permitted to take action as per law and remove the dangerous building. ' The grounds for this application were said to be the fact that Ismail Manzil was constructed over 150 years ago; that it had been inspected by K.B.C.A officials on an application moved by the owner on 23-6-2007 and found to be unsafe for habitation; that the building was thereafter also inspected by the K.B.C.A's Technical Committee on Dangerous Buildings which had declared the building as ruinous, dilapidated and dangerous; that the building could collapse at any time; and that the rains which were expected at any time posed additional danger to the building and the safety of the occupants. ' Further orders directing the utility companies to remove/ disconnect their services to Ismail Manzil as well as a direction to the T.P.O. Saddar Town to provide sufficient police force for evicting the occupants of Ismail Manzil and controlling any law and order situation that may arise at the time of demolition were also sought. ' The following documents were attached to the affidavit in support of C.M.A. 6269 of 2008:-- (a) Copy of a Pro forma for Declaring a Building as Dangerous which suggests that the Technical Committee for Dangerous Buildings consisting of four persons (whose signatures appear on the reverse of the Pro forma) inspected Ismail' Manzil on 16-8-2007 and declared it dangerous on the ground that the entire building was in a dilapidated and ruinous condition; (b) Copy of a notice dated 1-9-2007 issued under section 14 of the Sindh Building Control Ordinance, 1979 by the Deputy Controller of Building, Zone II, Saddar Town, K.B.C.A, to the owner/occupants of Ismail Manzil requiring them to forthwith remove the entire building within 48 houRs, According to a statement on the bottom of the notice, a copy was also pasted on the site for the information of the owner/tenant/occupant; (c) Copy of a similar notice dated 13-9-2007 issued under section 14 by the Deputy Controller of Building-I, Saddar Town, K.B.C.A, to the owner/occupants of Ismail Manzil. A statement that a copy was also pasted on the site for the information of the owner/tenant/occupant of Ismail Building is also contained in this notice; (d) Copy of the another section 14 notice dated 28-4-2008 issued by the Deputy Controller of Buildings-III, Saddar Town, K.B.C.A, to the owner/occupants of Ismail Manzil to forthwith remove the entire building. As in the case of the previous notices, this notice stated that the building was dangerous and beyond repair and also specified that failure to comply shall result in the removal by the K.B.C.A at the risk and cost of the owner/occupants of Ismail Manzil; (e) Copy of the work permit dated 2-5-2008 issued by the K.B.C.A to Messrs Khan Muhammad, Demolition Contractor, to carry out the demolition of Ismail Manzil within one month; (f) Copy of the K.B.C.A letter dated 30-5-2008 addressed to the Town Police Officer, Saddar Town requesting police assistance for the purpose of ejecting the occupants of Ismail Manzil and to control any ensuing law and order situation that might emerge; (g) Copy of the K.B.C.A letter dated 3-6-2008 addressed to the Town Police Officer, Saddar Town requesting similar assistance; and (h) Eight photographs of Ismail Manzil showing its current dilapidated condition. ' C.M.A. 6269 of 2008 was put up in Court on 4-6-2008 on which date notice thereof was ordered to be issued for 10-6-2008. 'Before the next date for hearing (10-6-2008) K.B.C.A moved two new applications on 6-6-2008. One was moved under section 151, C.P.C. (C.M.A. 6362 of 2008) seeking permission to immediately demolish Ismail Manzil under the Nazir's supervision. The reason for seeking urgent intervention was that some portions of Ismail Manzil had fallen down recently and the building posed an immediate
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threat to the life of its occupants and area residents. In the affidavit in support of this application it was also stated that out of the 23 flats in Ismail Manzil, only six were occupied and the rest were vacant. ' The second application moved on 6-6-2008 was an application under Ordet XVIII read with section 151, C.P.C. (C.M.A. 6363 of 2008) seeking the immediate appointment of the Nazir as Commissioner to inspect the site and also to supervise the demolition. ' On 9-6-2008 K.B.C.A moved yet another application under section 151, C.P.C. (C.M.A. 6419 of 2008) seeking an order directing the occupants of. Ismail Manzil to hand over peaceful possession to officials of the K.B.C.A so that the dangerous building may be demolished. Further orders directing the police to provide proper assistance to the K.B.C.A and control any law and order situation that may be created were also sought. ' On 10-6-2008 this matter was fixed for a hearing of C.M.A. 6269 of 2008 and for orders on the recently filed C.M.A. Nos. 6362 of 2008; 6363 of 2008 and 6419 of 2008. By consent a hearing of the listed applications was adjourned to 18-6-2008. ' The order passed on 18-6-2008 records the statement of the plaintiffs' learned counsel that he had engaged the services of an architect for the purposes of obtaining a report on the feasibility of the building and that the would file objections after obtaining the said report. On this basis the learned counsel sought a short adjournment which was granted as a matter of last chance and the hearing of the listed applications was adjourned to 23-6-2008. ' On 23-6-2008 Mr. Bilal Khilji holding brief for learned counsel for the plaintiffs stated that he intends to file a counter affidavit to the applications listed for hearing on the date. He also stated that a copy thereof had been supplied to learned counsel for K.B.C.A and requested an adjournment. This request was not opposed and, again as a last chance, the hearing was adjourned to 3-7-2008. ' The counter affidavit referred to in the order of 23-6-2008 is that of the Plaintiff No,10 (Mr. Shamimuddin s/o Mr. Roshanddin Abdullah) and is of the same date. By this counter affidavit the plaintiffs responded to C.M.A. Nos. 4781 of 2008; 6269 of 2008; 6362 of 2008; 6363 of 2008 and 6419 of 2008. This counter affidavit (purportedly on behalf of all the plaintiffs) recorded the plaintiffs' no- objection to the grant of C.M.A. 4718 of 2008 pursuant to which the K.B.C.A had-sought to be joined as a defendant in this suit. ' In the counter affidavit the plaintiffs:-- (a) Denied the assertion that Ismail Manzil was over 150 years old and the assertion that the owner had moved an application for inspection on 23-6-2007. (b) Submitted that the names and designations of the persons who allegedly inspected the building have not been disclosed by the K.B.C.A nor has the K.B.C.A filed their affidavits; (c) Submitted that they were not given any notice of the inspection nor were they afforded an opportunity of being heard before or at the time of the alleged inspection; (d) Denied that the said inspection ever took place; (e) Denied that the notices issued under section 14 of the Sindh Buildings Control Ordinance, 1979 were ever issued or provided to the plaintiffs. Even otherwise, the plaintiffs asserted that the said notices were issued without jurisdiction and lawful authority and were, therefore, of no legal effect; (f) Asserted that the owner (Mr. Khan) and K.B.C.A were operating in collusion with each other; (g) Denied that Ismail Manzil was dangerous and submitted that they had the building inspected by an architect whose report was awaited; and (h) Asserted that the building could only be inspected by a licensed architect and not by the Nazir. 'In view of the conflicting pleas taken by the parties at the hearing on 3-7-2008, the learned counsel representing K.B.C.A was directed to furnish a complete report along with relevant
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documents on or before 15-7-2008 and the matter was adjourned to a date to be fixed by the office. 'On 29-8-2008 the K.B.C.A moved an application seeking an urgent hearing of C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6363 of 2008; and 6419 of 2008. This application was moved on the ground that the rains had started and there was a serve apprehension that Ismail Manzil may collapse at any time. 'In view of the foregoing, C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6363 of 2008 and 6419 of 2008 as well as the plaintiffs' Order XXXIX application, (C.M.A. No,9150 of 2007) were fixed for hearing on 9-9- 2008. 'On 9-9-2008 the Court's attention was drawn to the fact that the defendant (Mr. Khan) had yet to be served and summons, as well as notice of all pending applications, was ordered to be issued for his personal attendance on 12-9-2008. 'In the circumstances the listed applications could not be taken up for hearing until 6-10-2008 on which date C.M.A. Nos. 1069 of 2008 and 4781 of 2008 were allowed by consent and the legal heirs of Ms. Nasim Akhtar were allowed to be joined as plaintiff Nos. 16, 17, 18 and 19 and the K.B.C.A as defendant No,2. A consent order was also passed on C.M.A. 6363 of 2008 and the Nazir was appointed Commissioner to inspect Ismail Manzil and submit his report within two weeks. The hearing of C.M.A. Nos. 6269 of 2008; 6362 of 2008; 6419 of 2008 and 9150 of 2007 was adjourned to 28-10-2008. 'The Nazir carried out the inspection on 23-10-2008 and submitted his report on 28-10-2008. Objections to the Nazir's report were filed by the KB.C.A on 15-12-2008 and on 16-1-2009 a consent order was passed for the appointment of a qualified structural engineer from the Pakistan Engineering Council to inspect Ismail Manzil and report on its condition and sustainability. This inspection was conducted by Messrs Ishaq Khan Associates whose report dated 10-2-2009 is on record. ' On the next date of hearing (26-2-2009) the Court ordered service on the defendant No,1 through substituted means including publication. Keeping in view the submission made by the plaintiffs and notwithstanding that there is no such requirement under law, the Court also directed counsel for the K.B.C.A to see if a meeting could be arranged between the plaintiffs and the defendant No,1 in order to secure some amicable settlement that would permit the demolition of Ismail, Manzil without delay. ' As directed, a meeting was arranged by the K.B.C.A on 4-3-2009 which was attended by the plaintiffs and by Mr. Malik representing the defendant No, 1. The report dated 19-3-2009 submitted by K.B.C.A reveals that the offers made by Mr. Malik were not acceptable to the plaintiffs and the meeting ended unsuccessfully. ' On 19-3-2009 the Court ordered notice to be issued to Mr. Malik for his attendance on 10-4-2009. ' As noted above, Mr. Malik was present in person on 10-4-2009. On being asked, he replied that the defendant No,1 was abroad and was not likely to return for at least one month. A brief mention was also made of the possibility of a settlement to which his response was not encouraging. Indeed, he submitted that most of the plaintiffs in this case were not really occupants of Ismail Manzil and had filed these proceedings simply to extract an illegal benefit from the defendant No, 1. ' For the purpose of determining the listed applications it is relevant that on 18-6-2008 learned counsel for the plaintiffs had stated that the plaintiffs had engaged an architect for the purpose of obtaining a report on Ismail Manzil. A reference to the said engagement was also contained in the counter affidavit filed by the plaintiff No, 10 on 23-6-2008 in which it was stated that the report was awaited. ' Another reference to such a report appears in the Nazir's report dated 28-10-2008 in which a statement has been made to the effect that both sides have given the report of their engineers in
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respect of the building in question. ' No report of the architect said to have been engaged by the plaintiffs has been filed in these proceedings. No such report is attached to the Nazir's report either and it is not understood on what basis this statement found its way in the Nazir's report. However, the Nazir's report is correct to the extent of the reference to the report of the K.B.C.A's engineer's which was obviously a reference to the report of the K.B.C.A's Technical Committee for Dangerous Building. ' The finding of the Technical Committee for Dangerous Building is corroborated by the report submitted by Messrs Ishaq Khan Associates which also concluded that Ismail Manzil was beyond repair and should be demolished. Messrs Ishaq Khan Associates inspected Ismail Manzil on 7-2- 2009 in the presence of the plaintiffs whose names and signatures are attached to the report. The plaintiffs have not filed any objection to the report submitted by Messrs Ishaq Khan Associates. ' In view of the foregoing, it can safely be concluded that if at all the plaintiffs engaged an architect of their own and obtained a report regarding the state of Ismail Manzil, his report also concludes that the building is dangerous and ought to be demolished. If it were otherwise, the plaintiffs would surely have filed it in Court. ' Given the foregoing, my findings on the applications listed above are as follows:-- ' C.M.A. No,9150 of 2007: ' This is the plaintiffs' application under Order XXXIX Rules 1 and 2 read with section 151, C.P.C. Seeking ad interim orders restraining Mr. Khan and persons acting on his behalf from dispossessing the plaintiffs and/or demolishing Isma il Manzil or any part thereof until disposal of the suit. As noted above, this application was put up in Court on 26-11-2007 on which date the parties were directed to maintain status quo. This order continues to be in force to date. ' The affidavit in support of this application incorporates the contents of the plaint by reference. ' As noted above, in their plaint the plaintiffs' have alleged that they are tenants in respect of various commercial and residential premises in Ismail Manzil. According to the plaintiffs, from time to time they acquired their tenancy rights from the previous owner of the Ismail Manzil against payment of pugree/goodwill. The plaintiffs also assert that they are in occupation of the flats together with their families and claim that under the SRPO they cannot be evicted except in accordance with law. ' No document in support of the assertion of a tenancy right has been brought on the record by the plaintiffs save copies of fifteen rent copies in respect of the premises said to be in their occupation. The date on one of these receipts is date in June 2007 and the rest bear dates in July and August, 2007. ' In my view one receipt filed by each of the original fifteen plaintiffs cannot be sufficient to sustain even a prima facie finding of a tenancy. In this regard it is also relevant that the plaintiffs had stated that they were going to initiate legal proceedings under the SRPO for the deposit of rent in Court. No evidence of this having been done is on the record. ' Even if the plaintiffs were indeed tenants, it is not clear how any right acquired by them in that capacity can be used to restrain demolition proceedings under the Sindh Buildings Control Ordinance, 1979. While the plaint itself does not contain any reference to proceedings under the 1979 Ordinance, it is relevant that the suit was instituted on 3-11-2007 after the notices under section 14 of the 1979 Ordinance had been issued on 1-9-2007 and 13-9-2007 and, as stated in the notices themselves, copies thereof had also been pasted on the site for their information. ' In so far as the proceedings initiated by the K.B.C.A under section 14 of the 1979 Ordinance are concerned, in their counter affidavit and the oral submission made on 10-4-2009 the plaintiffs:-- (a) Have urged that the owner had not moved an application for inspection on 23-6-2007 as alleged by the K.B.C.A; (b) Submitted that the names and
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designations of the persons who allegedly inspected the building have not been disclosed by the K.B.C.A nor has the K.B.C.A filed the affidavits of the said persons; (c) Submitted that they were not given any notice of the inspection nor were they afforded an opportunity of being heard before or at the time of the alleged inspection; (d) Denied that the notices issued under section 14 of the Sindh Buildings Control Ordinance, 1979 were ever issued or provided to the plaintiffs. Even otherwise, the plaintiffs asserted that the said notices were issued without jurisdiction and lawful authority and were, therefore, of no legal effect; (e) Denied that the said inspection ever took place; and (f) Submitted that the K.B.C.A has no authority to demolish/remove dangerous buildings since no such power has been conferred on the K.B.C.A by the 1979 Ordinance and that, even otherwise, the K.B.C.A had failed to follow the procedure set out in Chapter 7 of the Karachi Building and Town Planning Regulations, 2002 which deals with dangerous buildings. 'Before dealing with these submissions it will be instructive to reproduce section 14 of the 1979 Ordinance which reads as follows:-- (1) 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 costs of demolition shall be recovered from the owner as arrears of land revenue. (3) Where the whole or a part of a 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 the occupier or occupiers of the building be ejected, if necessary, by force: ' 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. ' In order to deal with the plaintiffs' submission regarding Chapter 7 of the 2002 Regulations it is relevant to note the regulation 7-1 of this chapter deals with dangerous buildings which cannot be restored and are, therefore, liable to be demolished…
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