P L D 1975 Quetta 9 (PLP)

(7) No squatter shall be permitted to ply. his trade on the side berm of the following roads: (1) Sandeman Road, (2) Bruce Road, (3) Roads around the New Markets, or (4) All roads twenty feet wide or less. (8) In the case of licence for hawker, rehri-hawker or squatter having been lost or destroyed a duplicate copy may be issued on payment of a fee of annas four per copy. (9) When a licensed hand-rehri is to be transferred by a hawker to a new proprietor during the year of licence he should apply to the Municipal Secretary and after his approval the name of transferee shall be substituted in the licence for the name of transferor without further payment. (10) A photograph of the licensee (hawkers and rehri-hawkers only) and in the case of transfer, of the transferee, provided at the applicant's expenses, be posted on each licence or its duplicate copy as the case may be."

9. Later on by a Notification No. 77-AM(43)II1 dated Quetta the 15th October 1943, the Resident for Baluchistan, however, framed new rules in Supersession of Notification No. 158-R, dated 10th January 1923, referred earlier concerning issue of licences and fixation of licence free for hawkers and rehri-hawkers within Municipal limits of Quetta Town. Under rule 2, a fee at the rate of Rs. 12 per annum was fixed for a hawker's licence and Rs. 24-4-0 per annum was fixed for a hawker's licence, the licences were to be granted by the Executive Officer on application personally to an applicant and were not transferred without permission to anybody else. It may be noted that under rule No. 7 no licensed hawker or rehri-hawker was allowed to sell or expose for sale vegetables and fresh fruit within a radius of 100 yards of the Municipal Vegetable and Fruit Markets nor on Bruce Road, Sandeman Road, Anderson Road and Mission Road. Under rule 8 licensed rehris were prohibited for selling vegetables or fresh fruit enter the Vegetable and Fruit Markets on any pretence whatsoever.

10. In March 1944, fresh rules with regard to squatters and hawkers were framed in Supersession of previous rules by the then Political Agent, Quetta Pishin Ex Officio Chairman, Quetta Municipal Committee which is as under:

"No. 5(43) 1069 Trade.

In exercise of the powers conferred by section 45 of the Quetta Municipal Law and in Supersession of all previous orders on the subject, the Political Agent, Quetta-Pishin is pleased to prescribe the following conditions for the temporary occupation of roads and streets by squatters plying their Trade within Municipal Limits; (1) No one shall be allowed to occupy any berm of any road or street and ply his trade as a squatter of any description for example, letter writer, carpenter, fruit-seller, shoe-maker or barber etc. except with the previous permission in writing of the Executive Officer, Quetta Municipality, which shall be issued in the form of a licence and shall indicate the exact site to be occupied by the licensee. (2) Such permission may be granted on payment of an annual rental of Rs. 12 except in the following areas namely-.

(1) Sundeman Road. (2) Bruce Road. (3) Roads around the new markets. (4) All roads 20 feet wide or less. (3) No squatter shall be permitted to erect any platform over any drain so as to cause obstruction to the same nor shall any structure of any' kind whatsoever be allowed to project over the street. (4) The Executive Officer may cancel such permission at his discretion at any time, without assigning any reasons therefore. (5) In the case of a licence having been lost or destroyed a duplicate copy may be issued on payment of a fee of annas four."

11. In the year 1946 the Crown Representative was pleased to promulgate the Quetta Municipal Law, 1946 in exercise of the powers conferred by. the Indian (Foreign Jurisdiction) Order in Council, 1937 for administration of he Quetta Municipal Committee repealing Quetta Municipal Law of 1896 but by section 194 it saves rules, regulations and bye-laws and orders made, in other words previous rules with regard to Squatter Licensees and hawkers were allowed to continue. Section 194 of Quetta Municipal Law is as under :

"Repeal and saving.

The Quetta Municipal Law, 1896 is hereby repealed; Provided that the Municipality Constituted Committee established, limits defined, appointments, rules, regulations, bye-laws and orders made, any Town Planning Scheme draw up and sanctioned, notifications and notices issued taxes, cases, rates and fee imposed, or assessed, rates recovered, contracts entered into, suits instituted and all acts and things whatsoever done under the said law shall, continue in force and operation and be deemed to have been . respectively constituted, established, defined, made, drawn up and sanctioned, issued, imposed, or assessed, recovered, entered into, instituted and done under this law until superseded by appropriate action under this law." Admittedly Quetta Municipal Law, 1946 was repealed by Municipal Adminis tration Ordinance, 1960 which came into force on 11th April 1960. This was an amending and consolidating law made applicable to the entire West Pakistan. After dissolution of West Pakistan and creation of four different provinces the Government reverted to the practice prior to 1960 and Baluchistan People's Local Government Ordinance, 1972 was passed. Section 4 of Municipal Administration Ordinance, 1960, the repealing and saving section, does not affect the rules, regulations and bye-laws made, and notifications issued prior to the Ordinance, unless they were inconsistent with the Ordinance. In other words in absence of fresh rules with regard to squatters the existing rules were allowed to continue. Section 4, is as' under:- "On the coming into force of this Ordinance in any area, the enactments mentioned in the First Schedule shall, if and in so far as applicable to that area, stand repealed. (2) Where an enactment stands repealed under subsection (1), any appointment, rule, regulation, or bye-law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance." In P L D 1962 Lab. 358, this clause came for interpretation and it was held "that the saving clause of this section means that the old assessments were to continue till legally altered but did not mean to invest the officers of the Municipality with a power to carry out a fresh assessment as long as .new rules were not framed. Similarly the bye-laws made by a Municipality under sections 197 and 199 of the Punjab Municipal Act, 1911, were held to be bye-laws under the relevant provisions of the Municipal Administration Ordinance by virtue of the saving clause of this section".

12. Apart from the above the provisions of section 3 of Baluchistan People's Local Government Ordinance, 1972 saves the continuity or' the existing rules, regulations and bye-laws, in other words, I am of the opinion that it does not effect, whatsoever, the rules with regard to squatters, section 3 His as under:

"(1) On the commit into force of this Ordinance the following enactments shall stand repealed:- - (i) Basic Democracies Order, 1959 (President's Order 18 of 1959). (ii) The Municipal Administration Ordinance, 1960 (Ordinance' X of 1960). (2) Where an enactment stands repealed under subsection (1) any appoint ment, rule, regulation, scheme or bye-law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions `of this Ordinance be deemed to have been respectively made, issued imposed or assessed, entered into, instituted or taken under this Ordinance until superseded under this Ordinance'." I am, therefore, clearly of the view that the rules with regard to squatters still continue to apply and any violation of the same empowers the respondent to take legal action against the petitioners.

13. As to the merits learned counsel for the petitioners has conceded during the course of argument that if the respondent has power to issue notice the petitioners have no case. In other words, it was admitted that the wooden cabins and superstructures were built without any specific authoriza tion of the respondent which the petitioners under the law could not do. The question of balance of convenience in the present case does not arise because admittedly the petitioners have no power under law to construct wooden cabins on a public pavement on violation of the terms and conditions of the squatter -rules referred earlier, therefore, notices were issued by the respondent. I see no flaw in the impugned judgments of the learned District Judge and Civil Judge, Quetta.

14. A half-hearted argument by the counsel for the petitioner that the construction of wooden platform and superstructure on the public pavement cannot be an encroachment under the laws applicable, particularly so, when once a Minister had interfered and a scheme was prepared by the respondent to construct wooden cabins and to lease out to the petitioners. Now the interference of a Minister or preparation of a scheme by the respondent which admittedly has not materialized nor any such scheme was shown to be in Court does not by itself authorise the petitioners to violate the statute and the rules thereunder because they are equally bound by law. The word `encroachment' is defined in section 2(22) as under :

" `Encroachment' means unauthorised occupation of land, building or place, whether temporary or permanent, or occupation of part of public street, public road, public place, public way, public graveyard, bridge, drain, plot or open space belonging to Government or vesting in-a People's Local Council and includes encroachments on, over or under these." The mere reading of this definition couple with admissions on behalf of the petitioners that wooden platforms and superstructure have been made by the petitioners and they are doing business there, goes to show that such construc tion on the public pavement without a licence cannot be otherwise than an encroachment on a public street, which the respondents are entitled to be removed by notice under section 81(2) of the Baluchistan People's Local Government Ordinance, 1972 under which action in fact has been take against the petitioners.

15. In Sardar Mohammad and others v. Municipal Committee, Jhelum City (PLD1974SC497) more or less the same question has arisen where the plaintiffs had -constructed certain platforms with permission of the defendants when the Punjab Municipal Act, 1911 was in force and these platforms remained in existence for 25 years and it was argued by the counsel that the petitioners have vested right to receive compensation when the platforms were demolished by the Municipal Committee and secondly it was argued that under sub section 12) of section 83 of the Municipal Ordinance, 1960 only those encroachments can be removed which were made after promulgation of Municipal Administration Ordinance, 1960. Both these arguments were repelled by their Lordships by holding that the plaintiffs' (as in the present case) licences were renewable from year, to year and under the bye-laws which were terminable on notice. They could not, therefore, claim compensation for removal of the platforms constructed by them or their predecessor-in -interest on the public street even with permission of the defendants. It was further held that though the right to receive compensation was created by the Punjab Municipal Act, 1911, but it has been taken away expressly by the Municipal Administration Ordinance, 1960.

16. It may be seen that in the present case admittedly, the petitioner has no licence whatsoever to build wooden cabins although in the case cited they were permitted by the respondent. Yet it was held that they were not entitled even to compensation because Municipal Administration Ordinance, 1960 has expressly taken away such rights. The same position holds good under Baluchistan People's Local Government Ordinance, 1972 under section 81(4) wherein it is provided that notwithstanding anything contained in any other law, no compensation shall be payable for any encroachment removed or required to be removed under this section.

17. For the reasons given above, I see no force in the Revision Petitions which are hereby dismissed. As the petitioners are petty cabin-holders I pass no order as to costs. S. A. H. Petitions dismissed