1993 PLP 596 (SCMR)

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. (2) 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." "Article 12 of the Order:

12. Declaration of controlled area and issue of appropriate directions.‑‑ The Authority may, by notification in the official Gazette, declare any area to be a controlled areas for the purposes of this Order, and may issue in respect of any such area such directions as it considers fit and appropriate, and do all such things as may be necessary for the prevention of haphazard growth of colonies, buildings and operations in such area." "Article 55 of the Order: 55 'transfer to the Authority for purposes of improvement scheme of building or land vested in the Corporation etc.‑‑(1) Whenever any building, or any street, open space, or other land, or any part thereof, which is situated in the Federal Capital and is vested in the Corporation, the Karachi Port Trust, the Karachi Cantonment Board, or any other local authority is within the area of any improvement scheme and is required for the purposes of such scheme, the Authority shall give notice accordingly to the Chief Officer of the Corporation, the Chairman of the Port Trust or the President of the Cantonment Board or Local Authority as the case may be, and such building, street, open space, other land or part thereof shall there upon vest in the Authority. (2) Where any land situated in the Federal Capital vests in the Authority under clause (1) and the Authority makes a declaration that such land shall be retained by the Authority only until it revests in the Corporation, Port Trust, Cantonment Board or other local authority as part of a street or an open space under Article 65, no compensation shall be payable by the Authority to the Corporation, Port Trust or Cantonment Board in respect of that land. (3) Where any land or building vests in the Authority under clause (1) and no declaration is made under clause (2) in respect of the land, the Authority shall pay to the Corporation, Port Trust, Cantonment Board or Local Authority, as the case may be, as compensation a sum equal to the market value of such land or building on the date of the publication of the sanction under Article 50, and where any building situated on land in respect of which a declaration is made by the Authority under clause (2), is vested in the Authority under clause (1), like compensation shall be payable in respect of such building by the Authority. (4) If the Authority, having made a declaration in respect of any land under clause (2), retains or disposes of the land under clause (2), retains or disposes of the land contrary to the terms of the declaration so that the land does not vest in the Corporation Port Trust or Cantonment Board, or Local Authority, the Authority shall pay to the Corporation, Port Trust, Cantonment Board or Local Authority compensation in respect of such land in accordance with the provisions of clause (3). (5) If any question of dispute arises‑‑ (a) whether compensation is payable under clause (3) or clause (4), or (b) as to the amount of the compensation paid or proposed to be paid under clause (3) or clause (4), or (c) whether any building or street, or open space or other land or any part thereof is required for the purposes of the scheme, the matter shall be referred to the Central Government whose decision shall be final." It may be noticed that "rural area" has been defined as means any area which is not an urban area, whereas the term "urban area" has been defined as means an urban area recognized or declared as such under the Ordinance. It may further be noticed that subsection (1) of section 8 of the Ordinance empowers the Government to declare by notification an area as an urban or rural area after inviting objections from the residents of the area concerned and after hearing them who wish to be heard. It may also be pointed out that subsection (2) thereof provides that 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 coming into force of the Ordinance, shall be deemed to be urban areas. It may also be pointed out that Article .12 of the Order empowers the K.DA. to declare any area to be controlled area by notification in the official Gazette, for the purposes of the order. It also authorities the K.DA. to issue in respect of any such area, such directions as it considers fit and appropriate and do all such things as may be necessary for the prevention of haphazard growth of colonies, buildings, and operations in such area. It may further be pointed out that clause (1) of above Article 55 of the Order, empowers the K.DA. to get any building or any street, open space or other land or any part thereof, which is situated in the Federal Capital (which is now substituted by Karachi Division) and is vested in the Corporation, Karachi Port Trust, Karachi Cantonment Board or any other Local Authority if it is situated within the area of any improvement scheme and is required for the purposes of such scheme. The other clauses of the above Article deal with other allied matters pertaining to the above vesting of the above properties and need not be referred to.

6. We are unable to subscribe to the above submission of Mr. J. H. Rahimtoola. In our view, the purposes and objects of Articles 12 and 55 of the Order are different, inasmuch as the former Article empowers the K.DA. to declare any area to be a controlled area for the purpose of the order; whereas, the latter Article empowers the K.DA. to get any of the properties vested in it for the purpose of any of the development schemes. We may further observe that once any area is declared to be a controlled area, the K.DA. has been empowered under above Article 12 of the Order to issue such directions as it considers fit and appropriate in respect of such area and do all such things as may be necessary for the prevention of haphazard growth of colonies, buildings and operations in such area. We are inclined to hold that a notification under 8 Article 12 of the Order confers jurisdiction on the K.DA. in respect of an area declared to be a controlled area. In the present case, it is an admitted position that the K.DA. issued the above notification dated 17‑1‑1967 under above Article 12 of the Order, which includes the area falling within the limits of the appellant‑Union Council.

7. We may now revert to the provisions of the Ordinance. As pointed out hereinabove, clause (77) of section 3 of the Ordinance defines "urban area" as an urban area recognised or declared. It may further be observed that under subsection (1) of section 8 of the Ordinance, the Government has been empowered to declare an area to be an urban area or rural area; whereas, subsection (2) thereof recognises all the areas within the jurisdiction of town committee, municipal committee, corporation, Karachi Development Authority, Cantonment Boards and Karachi Port Trust at the time of coming into force of the Ordinance as the urban areas by providing that the same shall be deemed to be urban areas. It is, therefore, evident that an area falling within the jurisdiction of the K‑DA. will be deemed to be an urban area by virtue of C above subsection (2) of section 8 of the Ordinance.

8. It is obvious from the language used in above subsection (2) of section 8 of the Ordinance that in order to bring an area within the purview of an urban area under the above deeming provision, it is not necessary that the area or the properties situated therein should be vested in the Authorities referred to in the above subsection, but what is required, is that it should be Within the jurisdiction of the Authorities concerned. If we were to accept Mr. J.H. Rahimtoola's above contention, it would render the above provision of subsection (2) of section 8 of the Ordinance redundant as none of the Authorities mentioned therein will have jurisdiction over area falling within their respective limits in the absence of vesting of properties situated therein. It may be pointed out that though Karachi Municipal Corporation exercises jurisdiction over the municipal limits of Karachi but all the properties situated therein do not vest in it, but nevertheless it enjoys jurisdiction over it for the purpose of the relevant statute.

9. However, then it was contended by Mr. J.H. Rahimtoola that the term "jurisdiction" used in subsection (2) of section 8 of the Ordinance is relatable to substantive jurisdiction and not territorial jurisdiction.

10. It is true that the word "jurisdiction" has very wide connotation and it is generally used with reference to Courts and Tribunals having judicial or quasi‑judicial powers but, at the same time, it is also relatable to jurisdiction which an Authority exercises in a particular area for the purpose for which it has been created. In subsection (2) of section 8 of the Ordinance, the term "jurisdiction" is relatable to the area over which the Authorities mentioned therein exercise jurisdiction under the relevant law. The view taken by the High Court seems to be in consonance with law.

11. It was next contended by Mr. JA. Rahimtoola that section 120 of the Ordinance, which repeals Sindh Local Government Ordinance, 1972, indicates that the situation obtaining prior to the enforcement of the Ordinance was to continue and, therefore, the appellant‑Union Council was entitled to levy the octroi tax within its area.

12. This contention is not tenable as it is an admitted position that Union Council can levy octroi tax within a rural area and not within an urban area. Furthermore, the above section 120 of the Ordinance is to be construed harmoniously with the above provision of subsection (2) of section 8 of the Ordinance.

13. Mr. Nasim Faruqi, learned counsel appearing for the appellant in Civil Appeals Nos.533‑K and 534‑K of 1990, has candidly submitted that Deh Gufur falls within the limits of Karachi Division by virtue of Governor‑General's Order 15 of 1948, whereas, Mr. S.M. Abbas, learned counsel for respondent No.2, has invited our attention to the Smdh Government Gazette, Extraordinary, dated 4‑11‑1984, in which Deh Gujro has been shown falling within the limits of Karachi Municipality, P.S. 84, Karachi IX, and has been defined as an urban area of Karachi Taluka.

14. The upshot of the above discussion is that the above appeals have no merits and, therefore, they are dismissed. However, there will be no order as to costs. AA./U‑47/S Appeals dismissed.