1983 PLP 2681 (CLC)

(iv) That the impugned notices are mala fide. (b) Whereas Mr. Sabir Hussain Qizilbash, the learned counsel for the respondents Nos. 1 to 3 has advanced the following contentions :‑ (i) That the petition is not competent inasmuch as the notices were issued to the different persons on different dates, and, therefore, there were separate eau ses of action and hence one petition cannot be maintained. (ii) That MLO 110 does not cover the petitioners' case inasmuch as the land in occupation of the petitioners is admittedly part of scheme No. 24. (iii) That no notification under para. 2 of MLO. 1.10 has been issued for treating the land in question as Katchi Abadi.

3. Reverting to the first contention of Mr. Anis Ahmed, learned counsel for the petitioners, namely, that the Sind Public Property (Removal of Encroachment) Act, 1975, stands repealed by the issuance of M L O 110, it may be observed that the learned counsel for the petitioners in support of his above contention has urged that since there is inconsistency between the provisions of the Act and the MLO, the latter being subsequent in time shall prevail. In support of his above contention, he has relied upon the case of A. Javid, President of Pakistan, International Airlines Corporation Employees Union, Karachi (PLD1978Kar.64) the case of Syed Abul Aala Maudoodi v. Government of West Pakistan and others (P L D 1969 Lab. 786) and the case of Malik Mir and others v. State (P L D 1964 S C 673). Whereas it has been urged by Mr. Qizilbash that there is no inconsistency between the Act and the MLO and, therefore, the cases relied upon by the learned counsel for the petitioners are not applicable to the instant case. It may be observed that there cannot be any cavil to the proposition that in case of inconsistency between the two enactments on the same subject, the enactment subsequent in time shall prevail. However, the question, which requires consideration is, as to whether in the instant case there is to fact any inconsistency between the act and the M L O in order to press into service the above principle of law. In our view, there is no such inconsis tency inasmuch as MLO 110 does not become applicable to every land, which is in unauthorised occupation. In this regard, it may be pertinent to refer to para. 2 of the MLO which provides that the Government may by notification in official Gazette, declare that any part of any Urban area owned by the Provincial Government or a legal authority if it has been partial or totally occupied unauthorizedly since before 1st January, 1978, for residential purpose and continued to be so occupied, for the purpose of the order be known as .Katchi Abadi. The plain reading of the above para. indicates that in order to attract the provisions of the MLO the petitioners will have to show inter alia the following things (i) That the Government has issued a notification as contemplated under para 1. (ii) That the land in dispute is used for residential purposes since before 1st of January, 1978 and is being used as such. (4) (a) Furthermore, under sub‑para. 5 of para. 8, it has been pro vided that no Katchi Abadi or a portion thereof situated on land which is not safe from flood hazard or is required or reserved for roads, hospitals, school, colleges, libraries, playgrounds, gardens, parks, com munity centre, mosques, graveyards, railways. high tension lines or such other purposes or is otherwise in conflict with the planned land used of approved schemes shall be regularisable. This proviso clearly indicate that land falling within the ambit of sub‑para. 5 of para. 8 cannot be treated as Katchi Abadi even by a notification under para. 2 of the MLO. However, it was urged by Mr. Anis Ahmad, learned counsel for the petitioners that if the provisions of the M. L.O. are to be read together, it becomes clear that the Government is obliged to regu larise unauthorised occupations of every person, who is in occupation of the land since before 1st January, 1978, for residential purposes. In support of his above contention he has referred to para. 13 of the MLO which provides "A Katchi Abadi coming into existence after the 1st day of January, 1978, shall be treated as an encroachment and b; dealt with in accordance with the law dealing with' the encroachment for the time being in force." According to the learned counsel for the petitioners, from above para. 13, it is inferable that all other Katchi Abadis are to be regu larized. We are not inclined to accept the Above contention. No such implication can be attributed to para. 13 of the MLO. As pointed out hereinabove that the provisions of the MLO are not to be attracted automatically to every unauthorised‑ occupation of land. In. order to press into service the MLO inter alia the requirements referred to hereinabove in paras. 3 and 4 (a) provided for in paras. 2 and 8 (v) of the MLO are to be fulfilled. , (b) It is an admitted position that the land in question is a part of Scheme No.

24. This fact has not been controverted by the petitioners. What has been controverted by the petitioners is that the land is not required for Conduit Water Pipe Line Scheme. The fact, as to whether the land in question is in fact required for Conduit Water Pipe Line Scheme or not becomes irrelevant if it is to be conceded that the land in question is a part of Scheme No.

24. However, Mr. Qizilbash, the learned counsel for the respondents Nos. 1 to 3 has referred to paras. 3 to 7 of the countera affidavit in order to show that in fact the land in ,question is reserved for Conduit Reservation alongwith the University Road and, that the Main Dumlotee Conduit 480 dia. Federal Trunk Main of 24' dia. of C I Main for Liaquatabad and Nazimabad are passing through the land in unauthorised possession of the petitioners.

5. With reference to the second contention of the learned counsel for the petitioners that the impugned notices do not disclose the authority of the Executive Engineer, it may be observed that the learned counsel for the petitioners has referred to section 3 of the Act, which inter alia provides that the Government or any authority or officer authorised by the Government in this behalf may require the person directly or indirectly responsible for encroachment to remove such encroachment together with the structure if any raised by him on the public property. It has been urged by the learned counsel for the petitioners that. under subsection (1) of section 3 of the Act, it is‑ either Government or any authority or any officer authorised by the Govern ment in this behalf can issue a notice and since the respondents have not shown as to how the Executive Engineer, Karachi Division (Civil) (i. e. respondent No. 1) had issued the impugned notices, the same are illegal and without lawful authority. In this regard it may be pertinent to observe that no such plea bas been raised in the petition. However, the learned counsel for the petitioner, has admitted that as the petitioners have taken the plea that the impugned notices are illegal, the above plea being legal will include the plea of want of authority on the part of the Executive Engi neer concerned. In our view, the question, as to whether the Executive Engineer was authorised to issue the impugned notices under subsection (1) of section 3 is a question of fact as subsection (1) of section 3 con templates authorisation by the Government in favour of any authority or any officer. If the petitioners would, have raised a specific plea on the above question, the respondents would have been bound to produce the relevant order or notification to Indicate that in fact the Execu tive Engineer in question was authorised in terms of subsection (1) of section 3 of the Act. Since no such specific plea has been raised by the petitioners in the petition, in our view it will not be fair and proper to presume that there was no valid authorisation in favour of the said, Executive Engineer. On the contrary presumption is that all official acts are regular unless otherwise is shown. 6, Reverting to the third contention. that the Karachi Development Authority having offered to regularise the land in favour of the petitioners on receiving the commercialization charges, is estopped from issuance of the impugned notices, it may be observed that reliance has been placed on the averments contained in para. 10 of the petition, which reads as follows That the K. D. A. authorities also have announced in O. C. 1979 that the residents and shopkeepers of plots on main University Road near Sabzi Mandi shall be allowed to occupy their‑ shops provided they pay the charges at commercial rate." Mr. Anis Ahmed, the learned counsel for the petitioners has submitted that in fact there was a news item in Urdu Daily Jang dated 14th October, 1979, containing the news item to the effect that the Director‑General, Karachi Development Authority had directed issu ance of notices to the occupants of Sabzi Mandi, University Road, asking them to pay commercialization charges. It may be observed that no copy of the above news item has been brought on the record by the learned counsel for the petitioners, however, Mr. Anis Ahmed has shown the photostat copy of the above newspaper cutting today in the Court to the learned counsel for the other side. Be that as it may, in our view the above news item does not confer any right upon the petitioners. It is not the case of the petitioners that they had ever made an offer to pay the commercialization charges or that the K. D. A. accepted and agreed to regularise their occupation. There is nothing on the record even to suggest remotely that this was so. There cannot be any estoppel against the respondents on basis of the above news item, the) authenticity of which has not been accepted by the respondents.

7. With reference to the 4th contention that the impugned notices have been issued mala fidely at the behest of certain construction com panies, it will suffice to observe that no particulars of the mala fides are disclosed in the petition nor the name of any construction company has been disclosed which is allegedly interested in acquiring the land in dispute. In our view, the plea of mala fide without having full particulars cannot be permitted to be raised.

8. Mr. Qizilbash, the learned counsel for the respondents Nos. I to 3 has urged the aforesaid preliminary objection to the effect that with the petition only three notices have been enclosed and not all the notices, which were issued to the various persons on the various dates and that each notice will constitute a separate cause of action for which a joint petition cannot be maintained. It will suffice to observe that the petitioners have not challenged any common order but have impugned the notices issued under section 5 of the Act on the various dates to the residents of the three colonies referred to hereinabove in para. 1, and, therefore. there must have been several hundred notices, out of which only 3 notices of different dates are enclosed with the petition. In this view of the matter the contention of the learned counsel for the respondents Nos. 1 to 3 is not without force. However, it is not‑ necessary to decide the above point since the petition on merits is not maintainable.

9. It may also be pertinent to observe that it is an admitted position that the unauthorised constructions from the three colonies mentioned in the petition have already been removed. However, accor ding to the petitioners (who are 9 in number), their constructions have not been removed on account of the stay granted by this Court. It may also be mentioned that the learned counsel for the petitioners has submitted that the land in question has been used inter alia for busi ness purposes. From the three notices annexed to the petition, it seems that the same were issued in the names of the firms mentioned in the notices, namely, M/s. Hassan Motor Training, MJs. Car Plaza and M/s. Shamim Autos. The above notices indicate that in fact the lands are used for commercial purpose and, therefore, prima facie para. 2 of the MLO cannot be attracted to as it is confined to land which is used for residential purposes before 1st of January, 1978.

10. In view of the above discussion we do not find any merit in this petition which is dismissed accordingly with no order as to costs. With the dismissal of the petition the stay order stands vacated. The contempt application namely, Misc, No. 1889/80, will come up for hearing on a date in office. M.Y.M. Petition dismissed.