2007 PLP 1750 (MLD)

S. ALI ASLAM JAFRI, J.

The Petitioners who are 347 in number claim to be inhabitants of various pieces of land situated in-between Meva Shah Bridge and Dhobi Ghat Bridge commonly known as Niazi Colony where they have constructed katcha and pacca houses and living with their families and children for last about 55 years. According to the petitioners the said Niazi Colony is recognized by all Government Authorities/Agencies and all relevant facilities like electricity, gas and telephone -have been provided to the inhabitants. Though it was surveyed in the year, 1968 by the Excise and Taxation Department and the petitioners have been issued PT-I Forms but, so far the colony does not appear to have been legalized or declared as Katchi Abadi under the Sindh Katchi Abadis Act, 1987, hence the petitioners do not possess of any allotment/sanad/grant order or lease in their favour, issued by any competent authority.

2. The grievance of the petitioners is that a few weeks prior to the filing of this petition they came to know about the intention of the Government to commence a major operation to remove encroachment from the Lyari River bed and the adjoining areas for the construction of 16.5 k.m. long Lyari Expressway from Sohrab Goth to Muripur Bridge and the said purpose Anti-Encroachment Staff of 18 Towns of Karachi was to be engaged. The petitioners alleged to have made representations to the authorities concerned not to eject or disturb them but in vain. However, according to the petitioners through another press statement with reference to a meeting held under the chairmanship of the Chief Secretary of the Government of Sindh they came to know that it was decided to rehabilitate the affectees of Lyari Expressway Area in other localities, namely, Baldia and Hawksbay by providing 80 sq. yds. Plots of land for residential purpose and Rs.50,000 for construction to each family. The petitioners apprehending .demolition of their valuable properties in violation of provisions of Articles 4 and 24 of the Construction of Pakistan, 1973, have invoked the extraordinary Constitutional jurisdiction of this, Court and prayed that the proposed B action of the respondents to demolish the valuable .properties of the petitioners situated in Niazi Colony be declared without lawful authority and of no legal effect. They further prayed that respondents Nos. 1 to 7, their agents, servants and subordinates be restrained from demolishing the residential/commercial units of the petitioners except in due course of law. Another prayer was made for a direction to respondent No.7 to Act in accordance with Martial Law Orders, the Katchi Abadi Act, 1987, and the schemes made thereunder direction was also sought against respondent Nos. 8 and 9 to approve and regularize the building plans of the residents of Niazi Colony including the petitioners.

3. An application under Order XXXIX, Rules I and 2 read with section 151, C.P.C. was also filed for interim relief and a restraint order against respondents Nos. 1 to 7 not to demolish the properties of the .petitioners except through due process of law till decision of this petition. An affidavit .has also been filed in support of this application. Counter-affidavits have been filed on behalf of Province of Sindh and City District Government, Karachi.

4. It has been stated in the counter-affidavit filed on behalf of respondent No.1 that Lyari Expressway is a project of national importance which is very necessary to solve the traffic problem of Karachi City. So far status of the petitioner is concerned it is contended that their case does not stand covered under Katchi Abadis Act, 1987 and the petitioners are encorachers who have, raised construction on the Government land without any right, title or ownership, The construction raised is in violation of the rules and laws and without approval of any construction plan from the competent authority. It is further pleaded that according to section 37 of the Sindh Land Revenue Code, 1879, which was applicable prior to Sindh Land Revenue Act, 1967, "all public roads, etc. and all lands which are not the property of others belonged to the Government" .

5. In the counter-affidavit filed on behalf of City District. Government, it has been stated that the City District Government, Karachi, is complying with the policy of Federal Government for the construction of Lyari Expressway and the petitioners have not joined the Federal Government as a respondent hence no relief can be granted on this ground. alone. Specific spaces and plots allegedly in occupation of the petitioners have not been mentioned in the petition. It is denied that Niazi Colony is a Karachi Abadi. It is further 'stated that petitioners are unauthorized occupants/encroachers hence they no right or insist to remain in possession or to claim any compensation. Rejoinder has been filed on behalf of the petitioners reiterating the same facts as stated in the petition and the affidavit filed in support of the application under Order XXXIX, Rules 1 and 2, C.P.C. The petitioners contended that the action of the respondents is mala fide and the proposal for .construction of such expressway needs to be modified or dropped so as to save so many families from becoming shelterless.

6. We have heard the learned counsel for the parties in support of their respective contentions.

7. Mr. Fazle Ghani Khan, learned counsel for the petitioners, has mainly argued that in the first instance there is no necessity to construct any Expressway with the present alignment and if at all, its alignment should be changed. Thrust of his arguments was mainly on humanitarian and compassionate grounds so as to save the petitioners and many other families from becoming shelterless. Mr. Raja Qureshi, learned Advocate-General, Sindh, has made some positive proposals and argued that Lyari Expressway is the need of time. It is being constructed with huge amounts in the interest of the people of Karachi to save them from traffic congestion and pollution. Even at present roads of the city are unable to bear the load of traffic particularly moving from SITE Area to upcountry anti back. In case no alternate roads/bye-passes and Expressways like the proposed Lyari Expressway and Northern Bye-pass are constructed, the traffic system as a whole shall collapse in this Metropolitan city. He has further pointed out, that work has started on this project and in view of the incentive given by the Government people are vacating the land in their occupation -and each family is being provided a plot of 80 sq.yds. and Rs. 50,000 for construction. He has further argued that the slum areas on both sides of Lyari River and even in its bed have created an ugly situation which is not only injurious to the health of the occupants but causing huge loss of the life and property of the said occupants particularly during the heavy rains.. Slides of the pictures taken from satellite showing the existing position of construction/enrichments on both sides of Lyari River and even in its bed were also shown to us in presence of the learned counsel for the parties which give a very shabby look of the entire area. Even otherwise, every person crossing the bridges over Lyari River at various places can see sub-human conditions in which the people are living in such areas. Learned Advocate-General, Sindh has further argued that the petitioners have no title documents whatsoever in their favour and they are merely encroachers. He has further pointed out that in view of Clause (4) of section 19 of he Sindh Katchi Abadis Act, 1987, no settlement can take place in such circumstances and the land cannot be granted either under Katchi Abadis Act, 1987 or any other law for the time in force. Section 19(4) of the said Act is reproduced as below for ready reference:-- "Except as otherwise directed by Government, no area which is reserved for the purposes of roads, streets, water supply arrangements, sewerage or other conservancy arrangements, hospitals, schools, colleges, libraries, playgrounds, gardens, mosques, graveyards, railways, high tension line, or such other purposes or is not safe from flood hazard, shall be declared to be a Katchi Abddi. "

8. During the arguments and particularly purely on humanitarian and compassionate grounds an offer was made by Mr. Raja Quershi, learned Advocate-General, Sindh, to the petitioners as a token of good gesture from the Government of Sindh which is reproduced as below:-- (1) If the leases possessed by the petitioners are genuine having been executed by the competent authority/relevant authorities in accordance with law along with the approved building, plan, then, compensation would be provided to the lease-holder in accordance with the provisions of Land Acquisition Act. (2) If payments made by the lessee is in excess to Rs.50,000 then the total amount paid by the above lessee would be refunded to the lessee along with 80 sq. yards in order to rehabilitate such lessee. (3) In the multistorey buildings each floor would be taken to be an individual family unit entitled to receive the same compensation of Rs.50,000 along with 80 sq. yards plots. Compensation on multistorey building .shall be paid on floor basis and to the physical occupants.

9. However, the said offer has been declined by the petitioners whereas it has been accepted by the 28 petitioners in C.P. No. D-616 of 2002, 11 petitioners in C.P., No. D-508/2002 and petitioner Sauhail Anjum Mirza in C.P. No. D-1282/2002 and separate orders are being passed in those petitions.

10. The learned counsel for the respondents have also pointed out that prior to filing of this petition, another petitioner bearing No.D-1475 of 2001 for the same relief was filed by 34 other occupants of various pieces of land in the same area between Meva Shah Bridge and Maripur Road for identical relief which was disposed of by an order, dated 23-7-2001 to which one of us (Sabihuddin Ahmad, J.) was a party. The said order is reproduced as below:-- "After hearing the arguments in the matter for sometime, all the three learned counsel agreed to the passing of the following consent order; (1) The petitioners acknowledge the respondent No.2's claim to the ownership of the area presently in possession of the petitioners and right of respondent No.2 to use it for Lyari Expressway or any other public purpose. (2) In removing the encroachment, respondent No. 2 will act fairly, impartially and without any discrimination. All encroachments for commercial purposes will be removed without unnecessary delay. As regards the areas used by the petitioners for residential purpose, respondent No.2 will proceed to recover the possession according to their requirement from time to time with maximum compassion and regard for human suffering. The petition stands disposed of in the above terms along with all listed applications. "

11. Keeping in view of the above-stated tactual and legal position we are of the considered view that the petitioners have not been able to establish any legal right or title to the property in their possession. They are encroachers and have already enjoyed undue benefits of their illegal and unauthorized possession. Even the construction raised by them is without any approved plan and appears to have been raised without conforming to law. On the other hand the property in their occupation is being taken not to benefit anyone but for public purpose. Hence this petition merits no consideration and is dismissed accordingly. However, we are confident and expect that even after the dismissal of this petition if the petitioners want to avail the benefit of the offer/proposal given by the learned Advocate-General, Sindh during the hearing of this petition as reproduced above, the Government may consider the case of the petitioners sympathetically and extend the same benevolence to them as well if they voluntarily vacate the land in their occupation without any further delay in the matter. H.B.T./M-109/K Petition dismissed.