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Writ Petition No. 153 of 1961, decided on 4th December 1962

--Notice of intention to prohibit use of premises as human habitation should state reasons‑Party to be allowed to move objections and to be given personal hearing‑Proceedings before Authority of quasi judicial nature‑Non‑compliance by Authority with requirements of Art. 70‑Order quashed by certiorari‑Considerations not connected with question of unfitness of premises for human habitation Irrelevant for issuing notice‑Constitution of Pakistan (1956), Art. 170.

The power which vests in the Karachi Development Authority is not of an arbitrary nature. The discretion vested in it has to be exercised in a judicial manner. It is, therefore, incumbent on the Authority to mention in its notice under Article 70 (1) the grounds on which it intended to declare the premises in dispute as unfit for human habitation.

Personal hearing as required under Art. 70 (1) to the petitioners in connection with the contemplated action is a necessary requirement.

Where Art. 70, Karachi Development Authority Order, 1957 was not complied with, the notices and order were quashed (by certiorari).

Considerations not connected with the question of unfitness of premises for human habitation are irrelevant for coming to a decision to take action under Art 70.

Hall v. Manchester Corporation 113 L T R 465 ref.

Ibadatyar Khan for Petitioners.

I. Mahmood for Respondent.

Date of hearing : 4th December, 1962.

This writ petition is directed against the order of the respondent, dated the 27th March 1961, calling upon the petitioners to get it vacated by the occupants of the premises in dispute within 14 days, as it is absolutely unfit for human habitation, under Art. 70 of the K. D. A. Order of 1957. The disputes between the parties have arisen in the following circumstances.

2. Petitioner No. 1 is a partner of Palace Theatre Ltd., Karachi. She owns 1/4th share in its business and buildings; the rest of the 3/4th share belongs to one Hasan Baig Muhammad. Inside the compound of the Palace Cinema building, the petitioner is residing in a bungalow. In one of the rooms at the back of the auditorium of Palace Theatre, Muhammad Siddique, petitioner No. 2 who is a driver of petitioner No. 1, is residing. On 8th March 1961, the respondent informed the petitioners under Article 70 of the K. D. A. Order No. 5 of 1957, that this portion of the building was unfit for human habitation or human occupation for any purposes whatever, and signified its intention to prohibit further use of it and called upon the petitioner No. 1, occupier and user of this structure each to state in writing his objection (if any) to such prohibition within 7 days after the receipt of that notice. It is alleged by the petitioners that the aforesaid notice did not mention any specific objection and could convey no idea as to what was being objected to. Therefore, petitioner No. 1's son in his anxiety to find out what objection there could be to the use of the construction in question, visited the Architect of the respondent. He was granted an audience after long hours of waiting and, it is alleged that even then, instead of mentioning any defect or disclosing any ground as. to why the room was considered unfit for human habitation, the Architect of the respondent very rudely asked him to leave the office and did not give him any hearing. Consequently, on 19th March 1961, the petitioner No. 1 submitted her objection to the respondent and informed it that the notice under reply was invalid, vague and confusing; that no particular defect or objection had been specified and one was left to one's imagination and conjectures as to what objection could possibly be raised to a construction which exists under officially approved plan for over 20 years, and was occupied during the last 13 or 14 years by their drivers for residential purposes. The respondent was further informed that the premises in question have a pucca roof, pucca floor, nicely plastered walls, glass ventilators with full access to light and air and were far more superior to any of the servant‑quarters even in the P. E. C. H. S. area. The petitioner further informed the respondent that litigation was going on between petitioner No. 1 and the other partner of the Cinema and she apprehended that the other partner had, by making false objections and placing distorted facts, misled the officers of the respondent and induced them to issue this notice. The respondent was further informed that so far as the petitioner No. 1 guessed the only objection which she could spell out from the language of the notice was that the front portion of the room had become less airy and had diminished light due to the raising of a wall enclosing the petrol pump owned by H. Baig Muhammad, the ‑other partner, and that she would request him to forthwith demolish that wall or secure its demolition through Court. She also requested the respondent to order H. Baig Muhammad to demolish the portion of the enclosing wall in front of the room so that more light and air may be available to the inmates of that room as before. She further called upon the respondent if there was any other objection, to mention it specifically for compliance, and requestsd that she may be given an opportunity to place her case before it.

3. The petitioners' case is that the respondent, instead of informing the petitioner No. 1 of the specific objections, or giving her personal bearing in the matter, issued the impugned notice, dated the 27th March 1961. By this notice, the respondent informed the petitioner No. 1 that the premises in dispute which were occupied by the family of petitioner No. 2 were not constructed for residential purposes, that provisions of kitchen, bath and W. C. did not exist there and that the place was used most un-hygienically and was absolutely unfit for human habitation. The respondent further called upon the petitioner No. 1 to ask the occupant to vacate the premises within 14 days from the receipt of the notice, and informed her that this notice was issued to her under Article 70, subsection (2) of the K. D. A. Order of 1957. The petitioners' allegation is that this notice is not based on correct appreciation of the facts and is illegal and ultra vires, and have, therefore, prayed that a writ of certiorari may be issued to the respondents.

4. The petition is resisted on behalf of the respondent. All the allegations made by the petitioners have been denied by it. One Jaffar Ali, Assistant Architect (Control) in his affidavit has stated that the room which is in the occupation of Muhammad Siddique, driver of petitioner No. 1 is included in the building now known as Palace Theatre. It was constructed under an approved plan sanctioned by the Land Manager and Architect, Karachi Municipal Corporation on 25th August 1938. The room in dispute was shown there as a store room of size 85' x 18' ‑ 6". It is part of the auditorium of the Cinema probably meant for the storing of Cinema equipment. According to him, the said room was not meant to be used nor its construction permitted for use as a residential accommodation. The officer has further stated that Muhammad Siddique with his family was using the said room as a living room and for cooking food which made the place fire hazard. When this came to their knowledge, their Building Inspector, Mr. Tahir, who inspected the room, found that there was no provision for kitchen or sanitary closet or W. C., that it was being used in a most unsanitary and unhygienic manner, and that it was not fit for human habitation or occupation. The Inspector further found that cooking was being done on an open fire inside the said room in which were hung clothes for drying. He found old wooden structure, doors and windows. It was a danger not only to the auditorium but also to the petrol pump immediately adjoining it, and in spite of the fact that a few fire buckets containing sand are kept ready to quench any fire that may break out, it appeared that the further use of the said room should be prohibited for these reasons. According to the Assistant Architect, after this report was received, a notice was issued under Article 70 of the K. D. A. Order, 1957, and an opportunity was given to the petitioner No. 1 to submit her objections in writing within 7 days. It is alleged in the affidavit of this officer that petitioner No. 1's son was given opportunity of appearing and representing the case in person in support of her objections. He explained to him the reasons of their intention to declare the said room unfit for human habitation or occupation as set out in paragraph 5 of his affidavit. He denied that he did not give full opportunity of hearing or ever asked the son of petitioner No. 1 to leave the office as alleged in paragraph 8 of the writ petition. He further alleged in his affidavit that the written objections dated 19‑3‑61 contain false statements, insulting and disparaging remarks and attribute improper motives to him and the department. He asserted in the affidavit that the objections were nevertheless considered but were found invalid and insufficient, and a notice under Article 70 (2) of the K, D. A. Order was issued on 27‑3‑1961 again stating the reasons for the intention of the respondent to declare the room in dispute unfit for human habitation. He maintains that the impugned notice is legal, valid and within the powers conferred by the K. D. A. Order, 1957 and was issued bona fide and reasonably, in the public interest and in the discharge of official duties.

5. Mr. Ibadat Yar Khan, learned counsel for the petitioners, has urged before us that the impugned order violates the principle of audi alteram partem and is liable to be quashed on the following grounds

(a) That the notice issued under Article 70 (1) was vague and did not mention the grounds and reasons on which the respondent signified its intention to declare the room in dispute as not fit for human habitation.

(b) That the reasons for which the room was declared unfit for human habitation in the impugned notice, dated the 27th March 1961 were never conveyed to the petitioners and no objections were invited in that connection.

(c) That the order is mala fide and an abuse of the powers of the respondent.

(d) That the order is contrary to the provision of section 70 of the K. D. A. Order (V of 1957).

6. In support of his contention that the impugned notice is contrary to the provisions of Article 70 of the K. D. A. Order, 1957, the learned counsel has referred us to the relevant provision of law and has urged that, although it is open to the respondent to declare any premises as unfit for human habitation, but before doing so, it is obligatory on it to inform the party likely to be affected by such order, of the reasons and the grounds on which it intends to declare the premises unfit for human habitation. The learned counsel further urged that the power vested in the respondent is of a quasi judicial nature, and before any final order is passed in such cases, it is the bounden duty of the respondent to give adequate opportunity to the affected party to meet objections and to give him personal hearing. This contention of the learned counsel is well‑founded. In Hall v. Manchester Corporation (113 L T R 465), relied upon by counsel for the parties, a somewhat similar provision was under consideration before the House of Lords. In that case also the Municipal Corporation was given power to declare any building, or a part of a building, as unfit for human habitation. In exercise of the powers conferred by section 41 of the Manchester Corporation Waterworks and Improvement Act 1867 a building was declared unfit for human habitation. In that case also it was alleged that such powers were of a quasi judicial nature and that before any final order was passed declaring any property unfit for human habitation, reasons for doing so should be conveyed to the affected party and the final decision should be taken after a personal hearing has been granted to him. In this connection, Lord Dunedin observed that the duty imposed on the Corporation in such cases is to set itself to the task in a judicial spirit ; but if it does so, acting in good faith, and comes to a conclusion on the facts that it is warranted in making a declaration of unfitness, then no Court can review that determination. He, however, made an exception in a case where the Corporation, under colour of exercising a jurisdiction, really wants to attain another end, and the Courts of law in such cases would be entitled to interfere on grounds of mala fides. The nature of the inquiry in such cases was further explained by Lord Parker of Waddington in the following observations :‑

"I think it reasonably clear that the object of this section is to enable the corporation to prohibit in the interest of public health the use for human habitation of buildings which are in fact unfit for that purpose. It is not intended to make the certificate of the inspector of nuisances or any two medical practitioners conclusive on this point of fact. Where the fact is certified, the corporation can proceed under the section, but in so doing they must examine the circumstances and themselves come to a bona fide conclusion as to whether the building or part of the building in question is not in fact unfit for human habitation. They cannot rely solely on the certificate. The question then arises as to whether the power entrusted to the corporation is purely administrative or is a judicial power. On this point I have had considerable doubt, because there is no provision in the Act for hearing any party interested, or for receiving evidence, nor is there any provision for an appeal. But inasmuch as an order of the counsel under the section entails a penalty on persons who disregard it, I think on the whole that the corporation's power is in the nature of a judicial power, and that consequently any party interested has a right to be heard and, if he desires it, to adduce evidence, and, in case the power is abused, could protect himself by certiorari or injunction."

In order to find out whether the above‑mentioned principles can be applied to the facts of this case, it will be convenient at this stage to consider the provisions of Article 70 of K. D. A. Order V of 1957, which is reproduced below:‑

"70. Provisions regarding buildings unfit for human habi tation.‑(1) If for any reason it shall appear to the Authority that any building or part thereof intended or used for human habitation or human occupation for any purposes whatever is unfit for such use, it shall signify its intention to prohibit the further use of such building or part of a building and call upon the owner or occupier to state in writing his objections (if any) to such prohibition within seven days after the receipt of such notice. If no objection is raised by such owner or occupier within the prescribed period or if any objection which is raised appears to the Authority to be invalid or insufficient, the Authority may prohibit by an order in writing the further use of such building or part thereof. The owner or occupier of the building shall be given an opportunity of appearing before the Authority in person or by agent in support of his objection.

(2) Notice of such prohibition shall be served in person or by mail upon the owner of any building or part of a building affected thereby and also upon every occupier or user thereof (who need not be named) stating the fact of such prohibition and appointing a day (not being less than fourteen days after the date of such notices) before which every such person shall remove himself and his property from the said building or part thereof; and if on the day so appointed any such person has failed to remove himself and his property as aforesaid, the Authority may cause him and his property to be removed and may recover from him the cost of such removal.

(3) . . . . . . .

(4) . . . . . . .

(5) . . . . . . .

(6) . . . . . . .

(7) . . . . . . .

(8) . . . . . . .

7. A plain reading of the above‑mentioned provisions makes it clear that if for any reason it appears to the Karachi Develop ment Authority that any building or a part thereof intended or used for human habitation or human occupation for any purposes whatever Is unfit for such use, it shall signify its intention to prohibit the further use of such building or part thereof, and call upon the owner or occupier to state in writing his objections to such prohibition within 7 days. These provisions further provide that if any objections are raised, then a personal hearing will be given to the objector. It is, therefore, quite clear that the provisions under consideration are much stronger than those before the House of Lords. There is not the slightest doubt that the power vested in the respondent under the above mentioned provisions of law is of a quasi judicial nature, By virture of the above‑mentioned provisions it was the duty of the respondent not only to mention the reasons for which they intended to declare the property in dispute as unfit for human habitation or human occupation put also to allow time to raise objections and to give a personal hearing to the party affected before coming to a final decision, namely, the issue of notice under Article 70 (2) of the K. D. A. Order, 1957.

8. It was vehemently urged by Mr. Ibadat Yar Khan for the petitioners that the notice issued on the 8th March 1961 was in contravention of Article 70(1) of the above‑mentioned K. D. A. Order. The learned counsel has referred us to the contents of the notice, which is reproduced below:‑

"Whereas it appears to the authority that the following structures standing on the above‑mentioned plot are unfit for human habitation or human occupation for any purposes whatever.

(I) Premises on the back of the Auditorium of Palace Theatre.

Therefore, the Authority hereby signifies its intention to prohibit further use of the said structures and hereby requires the owner, occupier and user of the said structure each to state in writing his objection (if any) to such prohibition within 7 days after the receipt of this notice."

A perusal of this notice would show that no reason or ground was mentioned in it on account of which the respondent was signifying its intention to declare the premises in dispute as unfit for human habitation or human occupation for any purposes whatever. It is really surprising that, in spite of the fact that in her written objections the petitioner No. l invited the attention of the respondent to the fact that this notice was vague and confusing and that no particular defect or objection has been specified and she was left to her own imagination and conjectures as to what objection could possibly be raised to a construction which existed for over 20 years, the respondent did not take any care to issue a fresh notice ; nor did it give an adequate opportunity to the petitioners to meet the grounds on which the property in dispute was going to be declared as unfit for human habitation.

9. Dr. Mahmood, the learned counsel for the respondent, has invited our attention to the affidavit filed, referred to in earlier part of this judgment, and urged that on this affidavit all the necessary information was conveyed to the petitioner through her son and that this was sufficient compliance of Article 70 of the above‑mentioned Order. Both the petitioner No. 1 and her son have filed counter‑affidavits. In these counter‑affidavits they have emphatically denied that they had no talk with Jaffar Ali, the Assistant Architect (Control) and have further alleged that the son approached only the Architect (Control). In the face of this emphatic denial, it is difficult for us to accept the statement of Assistant Architect (Control). We provided ample opportunity to the respondent to produce the relevant file in order to show that personal hearing was granted to the petitioners or the son of petitioner No. 1 and the matter was fully considered by the Authority who passed the final order, but no document was produced before us to establish this fact.

10. It, however, appears to us that the reasons for declaring the premises in dispute as unfit for human habitation are not only those mentioned in the notice, dated the 27th March 1961, which are to the following effect :‑

"This place, which is occupied by the family of Mr. Siddique, was not constructed for residential purposes. Provisions of kitchen, bath and W. C. do not exist there. It is used most unhygienically and is absolutely unfit for human habitation."

On the other hand, apart from this, the premises has also been declared unfit for human habitation because it was likely to cause fire to the auditorium and to the petrol pump immediately adjoining to the premises in question. This is quite clear from the allegation made by Jafer Ali in paragraph 5 of his affidavit, which is reproduced below :‑

"It came to the knowledge of this department that Mr. Siddique with his family was using the said room as a living room and for cooking food which made the place fire hazard. Our Building Inspector, Mr. Tahir, was instructed to inspect the room and report. It was found that there was no provision for kitchen, bath or sanitary closet or W. C. and it was being used in a most insanitary and unhygienic manner and was not fit for human habitation or occupation. Cooking was being done on an open fire inside the said room in which were hung clothes for drying. There are old wooden structures, doors and windows. It is a danger not only to the auditorium but also to the petrol pump immediately adjoining it and in spite of the fact that a few fire buckets containing sand are kept ready to quench any fire that may break out, it appeared that the further use of the said room should be prohibited for these reasons."

11. In our opinion, these other considerations for issuing a notice under Article 70 are wholly irrelevant and have nothing to do for coming to the conclusion whether a particular property is unfit for human habitation or human occupation. The mere fact that by the use of some premises the adjoining building is in danger is no ground to declare those premises as unfit for human habitation or human occupation. There must be some other provision for taking action for such reasons.

12. After hearing learned counsel for the parties we area satisfied that the power which vests in the respondent is not of an arbitrary nature. The discretion vested in it has to be exercised in a judicial manner. It was, therefore, incumbent on the respondent to mention in its notice under Article 70 (1) the grounds on which it intended to declare the premises in dispute as unfit for human habitation. The notice dated the 8th March 1961, is completely vague and gives no reasons whatsoever; as such the grievance of the petitioners that they were never informed of the objection by the respondent is well‑founded. We are further satisfied that the respondent failed to give a personal hearing as required under Article 70 (t) to the petitioners in connection with the contemplated action. In these circumstances', the final order passed by the respondent under Article 70 (2) cannot be considered to be a legal order. The respondent has not acted according to the provisions under which it is empowered to take action to declare any property as unfit for human habitation. The impugned notices dated 8th March and 27th March 1961, are not in accordance with the provisions of Article 70, K. D. A. Order 1957 and are illegal and ultra vires of these provisions. We would, therefore, quash the impugned notices and set aside the order passed by the respondent against the petitioners to vacate the premises in question.

13. In the result, the petition is allowed with costs.

A. H.

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