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Petitioner: KARACHI BUILDING CONTROL AUTHORITY and 3 others VS Respondent: HASHWANI SALES JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title:KARACHI BUILDING CONTROL AUTHORITY and 3 others vs HASHWANI SALES
JUDGMENT
Reported As: PLD 1993 Supreme Court 210 Result: Order accordingly Judgment JUDGMENT AJMAL MIAN, J.--These are four appeals with the leave of this Court. We intend to dispose of the same by this common judgment as they are directed against a common judgment dated 17-4- 1986 passed by a Division Bench of the High Court of Sindh in Constitutional Petition No,D-914 of 1984, filed by respondent No,1, allowing the same and declaring the Regulations framed by the appellant in Civil Appeal No,79-K of 1987 i,e, Karachi Building Control Authority, hereinafter referred to as the Authority, under section 21-A of the Sindh Buildings Control Ordinance, 1979 (Ordinance No,V of 1979), hereinafter referred to as the Ordinance, and published inter alia in Daily English Newspaper "Dawn" dated 7-4-1984, as ultra vires. Leave to appeal was granted as the questions raised in the petitions were one of law and involved the interpretation of the Regulations framed by the Authority in exercise of the power conferred upon it by section 21-A of the Ordinance. 2. The brief facts are that respondent No,1 purchased in the year 1975 plot of land bearing Survey No,16/1, Sheet GK.8 measuring about 20,269 sq. Yards, situated in Ghulam Kassim Quarters, Eduljee Dinshaw Road, Karachi, with the construction thereon, hereinafter referred to as the suit property. The suit property was in occupation of about 15 tenants. It seems that respondent No,1, after obtaining the sanction for the construction of a modern double storey building after demolishing the existing structure, filed ejectment proceedings in or about March, 1978, against the tenants under section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, on the ground of reconstruction. It appears that while the above ejectment proceedings were pending, the Ordinance was promulgated on or about 3-3-1979. Pursuant to section 6 thereof, respondent No,1 obtained re-approval of the plan from the Authority
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on or about 18-2-1980. It further seems that section 21-A was incorporated in the Ordinance by virtue of the Sindh Buildings Control (Amendment) Ordinance, 1982 (Sindh Ordinance No,III of 1982), on 6-3-1982. It may be pertinent to mention here that the Sindh Rented Premises Ordinance, 1979 (Sindh Ordinance No,XVII of 1979) was promulgated in November, 1979, repealing and replacing the late Ordinance, hereinafter referred to as S.R.P.O. 3. The above rent cases were resisted by the tenants. The learned Rent Controller, after recording evidence and hearing of the parties by his order dated 29-8-1983, granted the ejectment in favour of respondent No,1. Against the above ejectment order, the tenants have filed First Rent Appeals and respondent No,1 also filed First Rent Appeals, which are pending in the High Court for adjudication. 4. It appears that after the filing of the above First Rent Appeals, the Authority, in purported exercise of power under section 21-A of the Ordinance, framed the following two Regulations, hereinafter referred to as the Regulations, which were inter alia published in the Daily English Newspaper "Dawn" of 7-4-1984 as stated hereinabove:-- "REGULATIONS: (1) Approval of Building Plans or permission for reconstruction of buildings over plot or plots having existing structure under occupation of tenant/tenants shall not be accorded by the Authority unless an agreement is arrived by the landlord/owner and the tenant for alternate accommodation or for mutually agreed compensation. (2) All permissions accorded/granted by the Authority wherein an agreement between landlord/owner and the tenant/tenants has not been submitted are hereby suspended with immediate effect if no physical construction has been started in pursuance of the permission/approval already accorded, and the premises are still occupied by the tenant." ' It may also be pertinent to mention that following subsection (4) to section 15 of S.R.P.O. Was added on 30-7-1984 by the Sindh Rented Premises (Amendment) Ordinance, 1984 (IV of 1984):-- "(4) Where the landlord constructs the building as aforesaid the tenant who was evicted from the old building may, before the completion of new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation and the Controller shall make an in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality." 5. After that, respondent No,1 filed aforesaid Constitution petition, which was allowed by a Division Bench of the High Court of Sindh in the above terms as stated hereinabove. Thereupon, four petitions for leave to appeal against the above judgment were filed i,e, one petition by the Authority and three petitions by the tenants, which were granted. 6. In support of Civil Appeal No,79-K of 1987, Mr.Mubarak Hussain Siddiqui, learned Advocate Supreme Court appearing for the Authority, has urged that if the preamble of the Ordinance is to be read with the other provisions of the same, it becomes evident that the Regulations are intra vires and have been framed for public good. ' Whereas, Mr. Noor Muhammed, learned Advocate Supreme Court appearing for the appellant in Civil Appeal No,80-K of 1987, has urged as follows:-- (i) That the object of framing Regulations is to make approval of a plan under section 6 effective; ' that the incorporation of subsection (4) in section 15 of the S.R.P.O. On 30-7-1984 does not affect the Regulations as the former covers the period subsequent to the grant of approval of a plan, whereas the latter relates to the period prior to the grant of approval; and (iii) that the question, whether the Regulations are reasonable or not, is to be viewed on the assumption that the same are made for reasonable persons and not for abnormal persons.
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' Mr. Rustom F. Virjee, learned Advocate Supreme Court appearing for the appellant in Civil Appeal No,82-K of 1987, has contended as follows:-- (i) That since the approved plan in question had expired, respondent. No,1 had no vested right to get it renewed and, therefore, the Authority was competent to impose any condition as a precondition for granting approval; (ii) that the Court should make all efforts to uphold the validity of the Regulations as they have been framed in public interest; (iii) that the incorporation of subsection (4) in section 15 of the S.R.P.O. Does not, in any way, impair the power of the Authority to impose condition under the Regulations for granting approval of a building plan; and (iv) that the suit property is in occupation of a number of tenants and the appellants in above Civil Appeal No,82-K of 1987 are in possession of a large track of land about 4000/5000 Sq. Yards with the construction thereon and it will be unjust and inequitable if they are deprived of their valuable right. ' Mr. A. Latif A. Shakoor, learned Advocate Supreme Court appearing in Civil Appeal No,81-K of 1987 for appellants Nos.3, 4 and 5, Mr. Abdul Kadir Khan, holding brief for Mr. A.Aziz Khan, Advocate-on- Record for appellants Nos.1 and 2 in Civil Appeal No,81-K of 1982, Mr. Amjad Hussain, learned Advocate Supreme Court appearing for respondents Nos.14 to 16 in Civil Appeal No,79-K of 1987, and Mr. Shabbir Qazilbash, learned Advocate Supreme Court appearing for respondents Nos.8 and 15 in Civil Appeal No,79-K of 1987, adopted the arguments of the above learned counsel for the appellants. ' Mr. Fakhruddin G. Ebrahim, learned counsel for respondent No,1 in all the above appeals, has vehemently urged that the basic question in the present case is, as to whether the Regulations are within the ambit of the provisions of the Ordinance or whether they have travelled beyond its purview. According to him, the conclusion of the High Court that the Regulations are ultra vires the provisions of the Ordinance and they are also unreasonable are in consonance with law and, therefore, the above appeals merit dismissal. 7. The basic question which is involved in the present appeals is, as to whether under the provisions of the Ordinance, the Regulations could have been framed. Before proceeding any further, we may observe that the construction of the buildings can be divided into the following three subcategories:-- (i) New construction on open plots; ' Demolition of a building under section 14 of the Ordinance by the Authority and thereafter reconstruction of a new building; and (iii) A landlord obtains ejectment of a tenant on the ground of reconstruction through a competent Court and thereafter re-construct tile building after obtaining the approval of the plan. 8. In the present case, we are concerned with the above last sub-category as it is a common ground that respondent No,1 had initiated ejectment proceedings in the year 1978 on the ground of reconstruction and obtained order of ejectment in 1983. First Rent Appeals arising therefrom are pending in the High Court for adjudication. 9. Mr. Noor Mohammed has referred to the preamble, sections 2, 6, 6-A, 7-A, 12, 13, 14 and 21-A of the Ordinance in order to contend that the same have vested very vast power in the Authority and, therefore, the Regulations are intra vires. It may be observed that the preamble of the Ordinance provides that "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 Sindh;" Section 2 of the Ordinance lays down that nothing contained in any other law for the time being in force shall apply to any matter regulated by the Ordinance. It may further, be observed that
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section 6 relates to according of approval to plans and issuance of no-objection certificates for the constructions, whereas section 6-A provides that a builder or developer shall for the purpose of obtaining no objection certificate under section 5 or, as the case may be, under section 6, shall furnish true information of the matters referred to in sub-clauses (a) to (d). It may further be pointed out that section 7 deals with the preparation of the plans and the requirement of employing an architect and a structural engineer in the cases referred to therein. It may also be pointed out that section 7-A empowers the Authority in case of violation of the provision of subsection (1) of section 6 to seal the building or eject the occupants and/or to demolish the building at the cost of the builder. ' It may also be mentioned that section 12 deals with the sale of buildings, by a builder and provides conditions for the same. Whereas, section 13 prohibits increase of sale price of the building advertised under section 12. It may further be pointed out that section 14 covers dangerous buildings and it empowers the Authority either to direct the owners or occupiers to carry out the repairs or to cause the demolition of the building or to demolish it itself after ejecting the occupants of the building. The proviso to the same which was incorporated on 1-11-1984 by Sindh Buildings Control (Amendment) Ordinance, 1984 (XXXVII of 1984) confers the right of hearing on the person who is likely to be affected by the action to be taken under subsection (3) of above section 14. It may further be stated that section 21-A, which was enacted on 6-3-1982, empowers the Authority to frame Regulations not inconsistent with the provisions of the Ordinance and the Rules made thereunder for carrying out the purpose of the Ordinance and without prejudice to the generality on the matters enumerated in sub-clauses (a) to (1). It may also be observed that subsection (3) of the above section provides that Karachi Building and Town Planning Regulation, 1973, in the case of Authority of Karachi and the Bye-laws of the Council concerned in other cases duly published, shall until Regulations are framed under the above section, be deemed to be Regulations so framed provided they are not inconsistent with the provisions of the Ordinance and the Rules framed thereunder. 10. In our view, sections 6 and 7 and clauses (b) and (e) of subsection (2) of section 21-A of the Ordinance deal with the question of approval and preparation of the plan and therefore the question, whether the Regulations are ultra vires or intra vires, will depend on the construction of the above provisions. It will, therefore, be advantageous to reproduce the same, which reads as follows:-- "Section 6 of the Ordinance ' Approval of plan.---(1) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no-objection certificate for the construction thereof on payment of such fee as may be prescribed: ' Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance, the Authority's approval of the plan and no-objection certificate shall be obtained not later than six months after the enforcement of the Ordinance. ' Explanation.--The word "construct" with all its variations used in this section and hereafter shall include "reconstruct" with all its variations and, additions or alterations. (2) No building mentioned in subsection (1) shall be occupied by any person or shall be allowed by the builder to be occupied, before the Authority has, on application of the occupant or owner, issued occupancy certificate, in such manner as may be prescribed. (3) No building mentioned in subsection (1) shall, except with the permission of the Authority, be used for the purpose other than that for which its plans were approved. (4) Where the Authority is satisfied that the purpose for which' the building is desired to be used is consistent with the approved plans of the building, it may grant the permission under any subsection (3) on such conditions and on payment of such fees as it may fix."
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' Section 7 of the Ordinance ' Preparation of plans.---(1) The plan submitted to the Authority under section 6 shall be prepared by and under the supervision of, and signed by, such person or persons referred to in subsection (1) of section 8 as may be prescribed: ' Provided that a structural engineer shall be associated with the architect to prepare the structural designs and drawing and sign them if the building:-- (i) is sixteen meters or more in height from the plinth level; (ii) consists of five or more storeys, in addition to the ground floor; (iii) consists of two or more storeys, in addition to the ground floor, situated in the coastal areas notified by the Authority; (iv) is considered by the Authority to be of special nature: ' Provided further that a town planner shall, in addition to structural engineer, be associated to assist the architect in preparation of the plan if the building is constructed on a plot of two acres or more and the Authority deems that association of town planner is necessary and in that case the plan shall be signed also by the town planner. (2) An Inspecting engineer shall be engaged for supervision of construction of a building other than a single or double-storeyed building on an area not exceeding four hundred square yards the construction whereof may, instead of inspecting engineer, be entrusted to the supervision of a building supervisor, and the inspecting engineer or as the case may be, the building supervisor shall sign the plan of the building. (3) The builder and any person or persons associated in any manner with the building including its plan and construction shall be liable for the defects in the structure, plan and construction thereof to such extent and manner as may be determined by the Authority. (4) The Authority may, for the reason of safe and sound construction, refer the structural design of any building for further examination to a proof engineer who shall scrutinize the design and, if necessary, modify it and the fees or any charges in connection therewith shall be borne by the builder. "21-A. Clauses (b) and (e) of section 21-A of the Ordinance.-- (b) the manner of approval, grant of no-objection certificates to builders or developers and rates of fees therefor; (e) the manner of preparation, supervision and submission of building plans;" A perusal of the above section 6 indicates that its subsection (1) prohibits the construction of any building before the Authority has, in the manner prescribed, approved the plan of such building and granted no objection. It also provides that no objection certificate shall be obtained not later than six months after the commencement of the Ordinance in respect of a building, the construction of which had commenced before the enforcement of the Ordinance. The Explanation to the above subsection (1) explains the word "construct" by providing that the same with all its variations used in this section and hereafter shall include "reconstruct" with all its variations, additions and alterations. It may also be noticed that subsections (2) to (4) thereof deal with the issuance of the occupancy certificate in the manner prescribed, prohibition of the use of the building other than that for which its plans were approved and granting of permission under subsection (3) for occupation of the building on such conditions and on payment of such fees as it may fix. ' It may be mentioned that subsection (1) of section 7 lays down that the plans under section 6 shall be prepared by and under the supervision of and signed by such person or persons referred to in subsection (1) of section 8 as may be prescribed. It also provides that a structural engineer shall be associated with the architect to prepare the structural design and drawing and sign them if the building falls in sub-clauses (i) to (iii) of above subsection (1) of section 7. It may further be stated
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that subsections (2) to (4) contemplate engagement of an inspecting engineer for supervision of the construction of a building referred to in subsection (2). It imposes liability on the builder and any person or persons associated in any manner with the building including plan and construction for the defects in the structure, plan and construction thereof to the extent and manner as may be determined by the Authority in terms of subsection (3). It also empowers the Authority for the reason of a safe and sound construction to refer the structural design of any building for further examination to a proof engineer. ' It may be noticed that above clauses (b) and (e) of subsection (2) of section 21-A empower the Authority without prejudice to the generality of the power referred to in subsection (1) to frame regulations inter alia for providing the manner of approval, granting of no-objection certificate to builders or developers and rate of fees thereof and the manner of preparation, supervision and submission of building plans. Regulation No,1 of the Regulations provides that approval of building plans or permission for reconstruction of buildings over plot or plots having existing structure under the occupation of a tenant/tenants shall not be accorded by the Authority unless an agreement is arrived by the landlord/owner and the tenant for alternate accommodation or for mutually agreed compensation; whereas Regulation No,2 contemplates that all permission accorded, granted by the Authority wherein an agreement between the landlord/owner and the tenant/tenants has not been submitted, stands suspended with immediate effect if no physical construction has been started in pursuance of the permission/approval already accorded and the premises are still occupied by the tenant. Respondent No,l's case falls under Regulation No,2 as prior to the framing of the Regulations, they had obtained approval and no objection under section 6 on 18-2-1980. The question, therefore, arises, as to whether the above Regulations are covered by above sections 6, 7 and above clauses (b) and (e) of subsection (2) of section 21-A of the Ordinance. 11. We may now revert to the submissions of the learned counsel for the parties. Mr.Mubarak Hussain Siddiqui, learned counsel for the Authority, was unable to point out any provision by virtue of which the Regulations can be sustained as intra vires in respect of a case in which the landlord obtains the ejectment of his tenant from the premises on the ground of reconstruction through the Court. However, his submission was that since under subsection (3) of section 14 of the Ordinance, the Authority has been empowered to evict a tenant from the building which may be declared dangerous it has power to ensure reduction of the tenant into the reconstructed building and hence there is nexus between above section 14 and the Regulations. Since section 14 of the Ordinance is not involved in the present case, we would not like to express ourselves definitely as the above question may arise in future which will be decided after hearing the parties concerned. However, it will suffice to observe that the above submission is plausible. 12. Adverting to Mr. Noor Mohammed's first submission that the object of framing Regulations is to make approval of a plan under section 6 effective, it may be observed that to reinforce the above submission, he has invited our attention to the fact that approval to a building plan accorded by the Authority remains a paper approval as it takes very long period to obtain an ejectment order from a Court on the ground of reconstruction and, therefore, the Regulations by providing that a landlord/owner should enter into an agreement with a tenant in occupation of the building concerned, intends to make the approval of a plan effective. The above submission is founded on the assumption that it will be an easy task for a landlord and a tenant to arrive at a settlement without the intervention of the Court, which is factually not correct as no machanism has been provided to facilitate the conclusion of such an agreement. Even if we were to accept Mr. Noor Mohammed's above contention as factually correct, the Regulations cannot be held intra vires on the above ground, if they do not fall within the ambit of the Ordinance.
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13. As regards Mr. Noor Mohammed's second submission that the incorporation of subsection (4) in section 15 of the S.R.P.O. On 30-7-1984 does not affect the Regulations as the former covers the period subsequent to the grant of approval of a plan, whereas the latter relates to the period prior to the grant of approval, it may be mentioned that at the time when the ejectment cases were filed by respondent No,1 in 1978, the late Ordinance was holding the field. Subsection (5-B) of section 13 of the same provided protection to the tenant in case ejectment was granted on the ground of re- construction of the building in the following terms :-- "(5-B) Where, in pursuance of an order under clause (iv) of subsection (2), a landlord has obtained possession of a building (in this subsection referred to as the old building), and constructs a new building on the same site, the tenant who was evicted from the old building may before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation, and the Controller shall make on in respect of the area applied for or such smaller area, as, considering the location and type of the new building and needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality." 14. The late Ordinance was repealed and replaced by S.R.P.O. In the Province of Sindh on or about 21-11-1979. The original text of the S.R.P.O. Did not contain any provision corresponding to the above subsection (5-B) of section 13 of the late Ordinance till 30-7-1984 when subsection (4) of section 15 was enacted providing a corresponding provision to above subsection (5-B) reproduced hereinabove in para. 4. Since the matter is sub judice before the High Court in F.R.As., we would not like to express on the question, whether subsection (5-B) of the late Ordinance is applicable or subsection (4) of section 15 of the S.R.P.O. It will suffice to observe that both the above provisions protect the interest of a tenant who is…
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