1998 PLP 1099 (CLC)

(c) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Preamble‑‑‑Constitution being a document of social contract, to seek justice was right of the weakest. Arif Chaudhry for Petitioners. Kb. Muhammad Sharif, A.‑G., Punjab, Azmat Saeed Advocate/Legal Advisor with Ikram Afzal Khan, Director‑General. This order shall dispose of Writ Petitions Nos. 18943, 18944, 19755, 19556, 19558 and 19559 of 1997 as they involve common questions of law and fact.

2. The petitioners are the residents of localities known as Katchi Abadis of Azam Colony, Shawala Colony, Engine Shed and Shawala Budhu situated near the Morre Engine Shed; Gari Shahu Bridge, Lahore. Admittedly, the land over which these abadis have been constructed belongs to Pakistan Railways. The Government decided to replace the existing of overhead Bridge near Gari Shahu Lahore by new ones. Both the overhead Bridge and the road have out lived their utility. This project has been entrusted to L.D.A. which will complete the entire project of overhead bridge and road including the spans over railway lines. Admittedly, this project is required to be completed as speedily as possible. At present a large number of people have a problem because of the closer of the existing railway bridge on account of its dilapidated condition. This project has now necessitated the shifting and displacement of the occupants from the land to be utilized for the purpose of the project.

3. It is contended by the learned counsel that the Government had processed the case of residents of Azam Colony for being declared as Katchi Abadi and a survey list of the occupants had also been prepared. Learned counsel did not seriously dispute the urgency of the completion of the project and the utilization of the land underneath all these colonies for the public purpose of construction of a new overhead bridge and road. It was, however, stated that without providing a suitable alternate accommodation, the petitioners should not be evicted or displaced notwithstanding the urgency of the commencement and completion of the huge project. Learned counsel argued that in view of the policy decision contained in Memo No.1713‑81‑III/2310‑CS, dated 17‑5‑1981 by Government of the Punjab Colonies Department, Lahore, the petitioners are entitled to be granted proprietary rights of the State land as established Katchi Abadis at the rate of Rs.20,000 per acre plus ten per cent. surcharge on account of private treaty. Learned counsel also relied on the provisions of section 21 of the Punjab Katchi Abadis Act, 1992, in support of his contentions that the scheme already prepared in respect of these Katchi Abadis was to be deemed to have been prepared under the said Act. It was contended that all these Abadis were to be treated to be Katchi Abadis within the meaning of the said Act by operation of law. Learned counsel further stated that all the necessary amenities of the life had been provided in the localities in question by the official agencies and, therefore, the petitioners could not be treated to be encroachers on the Government land.

4. On the other hand, learned Advocate‑General Punjab as well as Mr. Azmat Saeed, Advocate/legal Advisor for the L.D.A. stated that the areas in question had never been officially declared to be Katchi Abadis. It was further argued that even the occupants of any Katchi Abadi are liable to be shifted if the land under Katchi Abadi is required for any public purpose as provided by clause (d) of section 8 of the said Act. Both the learned counsel further submitted that since the area in question belongs to the Federal Government, the same could not be treated or declared as Katchi Abadi without the consent of the Federal Government as required by subsection (2) of section 8 of the said Act. They further stated that fifty families out of total seventy‑two families of these localities have already been shifted and settled at alternate places of residence near Sansi Quarters adjacent to Raja Line for the time being and that the same treatment shall be accorded to the present petitioners. It was categorically stated by the learned counsel that the petitioners status over the new places shall remain the same as it was over the places in dispute. It was further argued that on account of the pendency of these petitions and the operation of the stay order the construction work‑of the vital Gari Shahu Bridge was stopped which had already caused a colossal loss to the public exchequer and further stoppage of work could not be conducive to the larger public interest for the sake of the petitioners' personal interest.

5. I have heard the learned counsel for the parties at length. I find that despite the subsisting interest of the petitioners they cannot resist the project of construction of overhead bridge and the road in the larger public interest. The land in question belongs to the Federal Government over which the petitioners had either raised the construction or had occupied the already existing buildings/houses etc.. They have been residing in the places in dispute for quite some time. Necessary civic amenities were also provided to the petitioners by the official authorities. They would, therefore, be entitled to be provided compensation/rehabilitation in accordance with law for uprooting them of their present places of abode. A proper compensation/rehabilitation will have to be assessed/worked out by the State for the occupants in accordance with law within reasonable time. The petitioners and other have to be ultimately provided with alternate places suitable for human dwelling as they are being forced to shift to Sansi Quarters where fifty families of these localities have already settled for the time being. The question as to whether or not these colonies/abadis were declared or treated as Katchi Abadis is not very much material or significant in these cases. Even if these abadis have not been declared to Katchi Abadis for want of consent of the Federal Government as required by subsection (2) of section 6 of the Act still the State is under obligations to look after its citizens for promoting the social justice as guaranteed by Article 2‑A of the Constitution of Islamic Republic of Pakistan, 1973. The public functionaries are not absolved of their Constitutional and other obligations towards these affectees.

6. Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees a fundamental right of a person not to be deprived of life and liberty save in accordance with law. I think the right to life includes the right to live with basic human dignity and all that goes alongwith it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading and writing, etc. The minimum needs of existence also 8 flow from the right to life. The Constitution itself is a document of social contract of the nation. To seek justice is the right of the weakest. The social injustice anywhere is to be viewed as a threat to justice everywhere. The affectees/occupants of these abadis cannot, therefore, be treated just as ordinary encroachers/tres‑passers, or a scheduled caste. Their interests have to be protected by the State functionaries.

7. Since the disputed land underneath the houses of the occupants admittedly belongs to the Federal Government/Pakistan Railways, the same can be utilized for carrying out the project in question without any further delay in the interests of collective public good. Even in a case of properly declared/established Katchi Abadis, the shifting of their occupants can be made under section 8 of the said Act to which no exception can ordinarily be taken. It a now well‑settled that even the personal fundamental rights have to be subordinate to the larger public interest/rights of the Society. See the case of "Karachi Building Control Authority and another v. Saleem Akhtar and 2 others (1993 SCMR 1451). In my view it would cause greater harm to the general public if the project of construction of overhead bridge and the roads is not allowed in order to save the petitioners from any hardship or inconvenience. The writ jurisdiction is a discretionary relief which is not granted or refused on technical grounds or as a matter of course regardless of the consequences. See the case of "Federation of Pakistan v. Haji Saifullah Khan" (PLD 1989 SC 166). The petitioners may, therefore, be allowed to shift to the place known as Sansi Quarters within thirty days.

8. The Federal Government/Pakistan Railways, the Provincial Government, the L.D.A. and the other relevant Departments/Agencies shall work out a scheme/policy within six months for proper rehabilitation/compensation for petitioners and their effectees/occupants of these abadis.

9. For the foregoing reasons these writ petitions are dismissed in limine but with the observations/directions above. A.A./N‑90/L Petition dismissed.