4994 PLP 2155 (CLC)

Date of hearing: 15th January, 1994. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by Mr. Aitzaz Ahsan and two other petitioners, claiming to be the owners of property bearing No.l, Jalalpur Road, Gujrat, praying that it be declared that the action of the respondents in demolishing the wall of their bungalow on 24‑1‑1993 was illegal, mala fide and without lawful authority. They have further prayed that respondents be directed to restore the position of the wall in question as it was before 24‑1‑1993 and also they be restrained from entering or encroaching upon, or endeavouring to take possession of any part or portion of the bungalow or from demolishing any structure or wall standing thereon.

2. At the very outset, it may be pointed out that both the learned Additional Advocates‑General as also the learned counsel for respondent No. i have admitted that the wall in question has since been reconstructed by the Municipal Committee at its own cost and expense during the pendency of this petition. This fact alone is sufficient to show that the demolition of the wall was wholly unjustified.

3. Even on merits, the respondent No.l has hardly any case. The justification for demolishing the wall as set out in the parawise comments is that the wall constituted an encroachment upon a part of Jalalpur Jattan Tandah Road, Gujrat, the width of which was 82 feet. The learned counsel appearing on behalf of respondent No.l as also the learned Advocates‑General are, however, unable to point out anything 5P the record to substantiate this' assertion. On the other hand, there is ample material to show that the position taken by the respondents is wholly unfounded.

4. It is not disputed by the respondents that the bungalow in question was constructed somewhere in the year 1930 and came to the ownership of the father of petitioner No.l on 30‑11‑1956 when he purchased the same through a deed of sale registered on 14‑i1‑1956, a copy of which has been annexed to this petition an Annexure `A'. It is also not denied that the wall in question had been in existence ever since the construction of the Bungalow. It appears to be quite strange that the Municipal Committee suddenly after 38 years wakened to claim that there was any encroachment.

5. A perusal of the sale‑deed (Annexure `A') shows that the predecessor of the petitioners had purchased an area of 7 Kanals 19‑ Marlas. Through a notification issued on 27‑1‑1993, the Government of Punjab had appointed the learned District Judge, Lahore as One Man Tribunal to hold an inquiry into the incident regarding demolition of the wall around the house of petitioner No.l During the course of these proceedings, the learned District Judge deputed Ch. Shabbir Hussain, Additional District Judge, Gujrat to act as a Local Commissioner, who visited the spot and prepared a detailed plan, a copy of which is available on the record which shows that total area in occupation of the petitioner was 7 Kanals 18 Marlas and 90 sq. ft. which was even less than the area purchased by the petitioner's predecessor and as such there was no question of any encroachment.

6. Equally baseless is the respondent No.1's contention that the. width of Jalalpur Jattan Road was 82 feet. This assertion is clearly belied by the respondent's own admission in the written statement filbd by it before the Civil Court in the suit titled `Mst. Saeeda Akhtar v. Municipal Committee, Gujrat' wherein it was stated that the road was 73 feet wide. According to the linear plan of Jalapur Jattan Tanda Road maintained by the Directorate of Planning and Design, Punjab Highway Department the width of the road in question is 66 feet. It is thus obvious that the assumption of the respondents that the road was 82 feet wide and the consequent demolition of the wall was wholly unfounded.

7. So far as the legal aspect is concerned, much need not be said to bring out the illegality of the action of respondent No.l which not only contravenes the principles of natural justice but is contrary to section 121 of the Punjab Local Government Ordinance, 1979 itself. The petitioner's plea that they were not served with any notice before the demolition was carried on has not been denied in the parawise comments. Instead in order to justify its action, respondent No.1 has relied upon some public notices issued through publication in newspapers, hand‑bibs, and posters etc. Section 12 (2) of the Punjab Local Government Ordinance, 1979, on its plain wording, requires notice to the person affected and the manner in which this notice has to be served is provided by section 174 of the Ordinance. It is unfortunate that valuable rights of the petitioners were trampled without adopting any of the methods provided by law for effecting service of notices upon them. From the facts and circumstances of the case, the contention of the petitioners' learned counsel that the impugned action was taken mala fide cannot be said to be unfounded. However,. in view of the findings already given that the impugned action was illegal and unjustified it is not necessary to make any further comments on this aspect in the present proceedings. It shall, however, be open to the petitioners to seek such further remedy, as may be available to them under the law before an appropriate Court/forum. As a consequence of what has been stated above, this petition is allowed with costs and the action of respondent No. l in demolishing the wall of the petitioners' property is declared to be without lawful authority and of no legal effect. AA./A‑641/L Petition accepted.