1989 PLP 594 (CLC)

ABDUL RAHIM KAZI, J.‑By this petition the petitioners have challenged the conversion from rural to urban area of the survey Nos. pertaining to their lands. The facts briefly stated are that the petitioners who are public limited company carry out the business of production of fertilizer is situated at Daharki in District Sukkur, Sind and for the benefit of their employees they have built management colony, employees colony and a market on its lands contiguous to its factory. It is claimed that they owned and possessed about 500 acres of lands divided into 175 survey numbers situated in three different Dehs of Taluka Ubauro of Sukkur District. It is claimed that about 100 survey numbers out of the above are declared as urban area by the Government. The case of the petitioners is that initially a notification was issued whereby objections were invited for extension of areas of Town Committee Daharki to cover the above said 100 survey numbers but at the objections of the petitioners the same were excluded from urban area as per notification dated 18‑7‑1979 published in the Sind Government Gazette of 21‑7‑1979. It is, therefore, challenged that the subsequent inclusion of the aforesaid 100 survey numbers in the notification issued subsequent to the above said notification of 18‑7‑1979 is without lawful authority and of no legal effect. We had ordered the issuance of pre‑admission notice to the Advocate‑General, Sind and in consequence of the said notice, comments have been filed by the Additional Secretary Housing Town Planning Local Government and Rural Development, Government of Sind alongwith the documents. We have heard Mr. Noor Muhammad, learned counsel for the petitioners and the learned Additional Advocate‑General, Sind. Mr. Noor Muhammad, learned counsel for the petitioners has challenged the action of the Sind Government mainly on four grounds. The first ground raised by him is that by virtue of covenant and conditions whereby the erstwhile Government of West Pakistan sold/ granted the said land to the petitioners, it was not permissible for the respondent No.l to change any of the survey numbers from rural to urban without the consent of the petitioners. We cannot subscribe to such contention of the learned counsel. The powers to declare an area to be urban or rural are invested in the Provincial Government under section 8 of the Sind Local Government Ordinance, 1979. Even otherwise no such condition can be contemplated for all times to come as the status of particular area to be declared as rural area or urban area depends on the conditions and circumstances prevalent at the relevant time. The second objection raised by the learned counsel was that section 7 of the aforesaid Ordinance provides that the area to be declared as Union Town, Municipality or City, shall, as far as possible be compact and contiguous with territorial unity. It may be seen that in the first instance the petitioners have not shown as to how the H survey numbers, included in their colonies are not compact or contiguous with territorial unity. Secondly, the words "as far as possible" are used in section 7 of the aforesaid Ordinance which means that it is for the Government to decide, in accordance with the aforesaid provisions as to what would be the area to be included in different local councils. The third objection raised by the learned counsel is that the Provincial Government is acting as an agent of the Town Committee Daharki inasmuch as the various public notices issued in this behalf show that the same are at the instance of the Town Committee. Ever. this ground taken by the petitioners is misconceived. According to the procedure, if any local council, urban or rural, considers that certain area should be included or excluded from their area, a resolution has to be passed in that particular council and then submitted to Government for further action. The Government then in consequence of the said resolution invites the objections from the residents of the area and finally after hearing and considering the same takes the decision under section 8 of. the aforesaid Ordinance. The various public notices issued at different times in the present case show that the resolutions have been passed by the Town Committee, Daharki for inclusion of the survey numbers in dispute alongwith other survey numbers and consequently the objections were invited through this public notice. This ground raised by the learned counsel, therefore, has no substance. Finally the main ground raised by the learned counsel is that once these survey numbers were excluded by the Provincial Government as per their notification dated 18‑7‑1979 published in the Sind Government Gazette dated 21‑7‑1979 and, therefore, the same cannot now be included in the urban area and all actions of the respondent No.l subsequent to this notification are without lawful authority. Here it would be necessary to consider the various documents filed by the respondent Government alongwith their comments in order to determine the actual position in this case. The first document is an extract from the Sind Government Gazette dated 13‑7‑1978 which shows that the notification bearing No.S.0.11/2(15)/75 dated 4‑7‑1978 shows that may survey numbers including the petitioners' survey numbers in dispute from the 5 different Dehs were declared as urban areas. This notification also shows that the same orders were passed by the Provincial Government in exercise of the powers conferred by section 8 of the aforesaid Ordinance and that the same was done after inviting and considering the objections as required under law. This notification has not been challenged by the petitioners' in the present petition although a period of more than 10 years has passed. The petitioners' contention that their survey numbers were excluded from the urban area as per the notification of 18‑7‑1979 published in Sind Government Gazette 21‑7‑1979 is also misconceived. The above notification, of 79 shows that certain survey numbers which had already been declared as urban area were included in the limits of Town Committee, Daharki by the Provincial Government in exercise of the powers under section 10 of the aforesaid Ordinance. This notification of course does not include the petitioners' survey numbers. But this does not mean that the same were treated as non‑urban. Thereafter again by subsequent notice the objections were invited for inclusion of the petitioners' D survey numbers within the limits of Town Committee, Daharki vide notification dated 15‑3‑1981. This notification also mentions that the said survey numbers which were already declared as urban area vide earlier notification of 4‑7‑1978 (not challenged in this petition) are sought to be included within the limits of Daharki Town and the objections were invited for that purpose. Consequently the objections were received from the petitioners which were heard and thereafter the orders were passed including the survey numbers in Town Committee, Daharki vide notification 11‑5‑1988. as published in the Sind Government Gazette of 9‑6‑1988. Reliance placed by the learned counsel on the notification of 18‑7‑1979 is totally inacceptable for the reasons that this notification. was under section 10 which shows inclusion of survey numbers in Town Committee area but nowhere any mention of exclusion of petitioners' survey numbers from urban area was made. It will be advantageous to reproduce the provisions of sections 8 and 10 of the aforesaid Ordinance which read as under:‑ "8(1) Government may, after inviting objections from the residents of an area and hearing those from amongst them who wish to be heard, declare by notification such area to be an urban area or rural area, as the case may be. (ii) All areas within the jurisdiction of a town committee, municipal committee, Corporation, Karachi Development Authority, cantonment boards and Karachi Port Trust at the time of the coming into force of this Ordinance shall be deemed to be urban areas. "10(1)As soon as may be, the following councils shall be constituted: ‑ (a) in urban area:‑ (i) a town committee for each town; (ii) a municipal committee for each municipality; (iii) a corporation for each city; (Provided that in the city of Karachi there shall be a metropolitan corporation and a zonal municipal committee for each district) (b) in rural area:‑ (i) a union council for each union; (2) x x x x x x x x x x x x x x x (iii) a district council for each district; provided that for the districts in the Karachi Division there shall be one district council with the local areas of the said district. (2) As soon as may be, there shall be constituted a panchayat for each electoral unit of a council other than (the metropolitan corporation or a district council 2(xxx) consisting of the member of the council elected from that electoral unit, who shall be the Chairman and other two members to be nominated by the council from amongst the residents of that unit 3(:). (Provided that there shall be a separate Panchayat for minority community in each electoral unit from which a member of the minority community has been elected and such panchayat shall consist of the elected member as Chairman and two members drawn from minority community of such unit):‑ Provided further that on supersession of a council under section 58, the person or authority appointed to perform the functions of such council may appoint any member of the Advisory Committee appointed under section 58‑A or where no such Committee is appointed any other person to exercise the powers and perform the functions of the Chairman of one or more Panchayats: Provided also that a Chairman of Panchayat for a minority community shall be a member of the minority community.) (2‑A) If a member nominated under subsection (2):‑ (a) is guilty of abuse of power or misconduct or has acted or is acting in contravention of the provisions of this Ordinance, rules or bye‑laws, he may, after he has been afforded an opportunity of being heard, be removed by the council; or (b) absents himself, without reasonable excuse, from three consecutive meetings of the panchayat, he shall cease to be the member of the panchayat.) (3) Any area within the jurisdiction of a union council, district council, town committee, municipal committee or corporation at the time of the coming into force of this Ordinance shall be deemed to be a union, district, town, municipality or city, as the case may tie." It is, therefore, clear that an area once declared as urban or rural under section 8 of the aforesaid Ordinance cannot be treated otherwise unless a specific fresh order is passed under the same section. It will be seen that the power to declare an area as urban or rural lies under section 8 of the aforesaid Ordinance and that area in dispute was already declared as urban on 4‑7‑1978 which as stated above was not challenged and that notification of 18‑7‑1979 was issued under E section 10 for inclusion of the particular area in Town Committee, Daharki. Thus it is clear that the said two notifications are issued in consequence of two different provisions of the Ordinance and that the grounds taken by the learned counsel that the petitioners' lands were excluded from the urban area is not sustainable. For the above reasons we do not find any mala fides in the actions taken by the respondent Government and the present petitions is, therefore dismissed in limine. These are the reasons for the short order announced by us today. A . A . /‑E‑23/ K Petition dismissed.