1983 PLP 2673 (CLC)

Section 16: "16. Determination of building line.‑(1) In respect of any such highway specified in section 8 or for which the provisions contained in section 8 have been adopted under section 9, the Highway Authority may determine a building line, along one or both sides of such highway, after enquiry in the manner hereinafter described." (2) .. (3) (4) Note.‑(Not reproduced as not relevant for purposes of this case). (5) (6) ‑ . A reading of the above‑quoted provisions of law, would show that even in cases where building line is not determined as contemplated, in section 16 of the Act the restrictions imposed on raising of constructions within the specified distance from the highway would be applicable by force of the prohibitions laid down in section 8 itself. 6. The learned counsel for the applicant argued that the Highway Department under the relevant law, in the absence of any authority to that effect, had no jurisdiction to remove and demolish the alleged encroach ment. He referred to the notice dated 24th August, 1974 issued by the Executive Engineer, Highway Department, whereby he called upon the applicant "to stop the construction at once and remove the unauthorised construction made so far, else action will be taken as per Government rules through police force." A copy of the above notice was endorsed, amongst others, to the Station House Officer, Malir Police Station with the direction that immediate action be taken to get the said construction removed by giving police force to Mr. Muhammad Amin, Overseer of the Department who was deputed to contact him. According to the learned counsel under section 25 the Highway Ordinance, 1959 the Officers of the said Department had no jurisdiction to issue any such order or direction for demolition of any construction made by an owner on his own land. He further submitted that the construction made by the applicant was on his own land and ,that the said constructions could not be called or termed as encroachment within the meaning of section 6 of the West Pakistan Highway Ordinance, 1959 (Ordinance No. XXXIi of 1959). It would be relevant, therefore, to refer to the provision of section 6 which provides as follows :‑ "6. Encroachments.‑(1) A Highway Authority may, with due regard to the safety and convenience of traffic on the highway and subject to such conditions as it may impose, permit any person on payment of such fees as it may fix. (a) to place a movable encroachment on any highway in ~ front of any building owned by him as ground level ; (b) to make. a movable structure overhanging a highway ; (c) to deposit or cause to be deposited building materials, goods for sale or other articles on any highway ; and (d) to set up a stall or scaffolding on any highway. (2) Any person who does any of the acts enumerated in the last preceding subsection or sets up any fence, hedge or post on high way without the written permission of the Highway Authority shall be published with fine which may extend to fifty rupees, and the Highway Authority .may, after giving reasonable notice to the offender requiring him to remove the offending structure, fence, hedge, post, deposit, goods, articles, stall or scaffolding ; and may recover the cost as hereinafter provided." (3) (Not reproduced as not relevant). 7. A bare reading of provisions of section 6 would however show that it relates to encroachments enumerated in subsection (1), which are made on the highway. Admittedly in this case no encroachments have been made on the highway, which is defined in sub‑clause (c) of section 2 (ii) of the above‑mentioned Ordinance. 8. Mr. M. I. Memon the learned Additional Advocate‑General, in reply however relied upon the provisions of section 6 to justify the notice issued by the Department, but we have already noted above that the said section has no application to the constructions made by the applicant on his own land. As regards section 8, no doubt it prohibits raising of any construction within the area prescribed therein but the learned Additional Advocate‑General was unable to point out any provision of law under which the departmental authorities could proceed to demolish any construction already made. 9. The upshot of the above discussion is that the Highway authorities have not been able to show that they have any lawful authority to demolish the construction already made by the applicant on his own land. Accord ingly the notice dated 24th August, 1974, is declared to have been issued without any jurisdiction and that respondents are restrained from acting upon the same. It is, however, clarified that the above findings shall not be construed as debarring the authorities to take appropriate action against the applicant or for demolition of the constructions (if found offending) by‑ taking appro priate proceedings under the law. 10. The impugned orders are thus .set aside subject to the observations made as above. The parties shall bear their own costs. M.Y.M. Petition accepted.