1979 PLP 815 (CLC)

(i) Declaration that the notice and subsequent act of demolition done by the respondent is without lawful authority, illegal, ultra vires and without jurisdiction and the said inclusion of the petition's plot as "reserved for amenity purpose" is without lawful authority. (ii) A prohibitory order to respondents Nos. 1, 3 and 4 to abstain from preventing, disturbing and/or interrupting the petitioner's possession and issue Lease Deed to the petitioner which has already been applied by him. (iii) The respondents I and 4 be directed to produce the complete record of the petitioner in this hon'ble Court. (iv) Any other order or direction deemed just and proper in the circum stances of the case, order alongwith costs of the petition,"

2. The facts leading to the filing of the above petition, as asserted in the petition, are that the petitioner is in occupation of a plot bearing AK-7B-488-271 situated in Liayari Quarters, Karachi, measuring about 90 x 70 sq. ft. whereupon the petitioner bad raised a pukka construction about 23 years back. The above ph and the construction were assessed by the Excise and Taxation Department for the purpose of property tax. The petitioner received a notice from the respondent No. 1 (i.e. The Karachi Municipal Corporation) bearing No. 1038 dated 12-7-1978, issued under section 8(1) of the Sind Property (Removal of Encroachment) Act, 1975, calling upon the petitioner to remove the unauthorised construction on the K. M. C. Land encroachment and clew the site within 7 days of the receipt of the notice. Thereupon, the petitioner filed a suit/application before the Social Tribunal i.e. the District Magistrate and the Deputy Commissioner South, Karachi (i.e. the respondent No.'). The respondent No. 2 after hearing the petitioner found that the petitioner and 10 other persons had encroached upon the K. M. C. Plot reserved formality, as per sketch produced before him and, therefore, he dismissed the sit/application filed by the petitioner through the impugned order dated 8-1978. The petitioner has filed this petition against the aforesaid notice dated 12-7-1978, and the order dated 7-8-1978.

3. In the petition it has also been asserted that the respondent No. 1 has already demolished the petitioner's structure except a portion thereof. It has further been averred that the petitioner is still in possession of the said plot. Before admitting the above petition to regular hearing this Court through its order dated 9-10-1978 called for comments from the respondent No.

1. In pursuance of the above order the respondent No. 1 has submitted the com ments, in which it has been asserted that the petitioner who was in possession of a piece of the K. M. C. land unauthorisedely was dispossessed on 30-7-1978 under the Sind Public Property (Removal of Encroachment) Act, 1975, and the possession thereof was given to tie respondent No. 3 for the purpose of establishing a Jamaat Khana and offer religious activities, at Juma Baloch Road by allotting the amenity plot in question, measuring 4644 sq. yds. with the approval of the Government, including the portion in dispute.

4. Mr. Raja Qureshi learned counsel for. the petitioner has urged the following points- (i) that the respondent No. 1 after having allowed the petitioner to raise permanent construction on he disputed land, about 20 years back, is estopped in law to treat the petitioner, as an encroacher, (ii) that the respondent No. 1 after having accepted the property tax in respect of the above land Gad the structure thereon, since, 1968, has recognised the petitioner as authorised occupant, (iii) that under Martial Law Regulation 67, issued by the Martial Law Administrator, Zone C, the petitioner is entitled to permanent settlement as the plot in possession of the petitioner is situated in Kachi Abadi.

5. Referring to the first contention it may be observed that the petitioner has not produced any documentary evidence to show that in fact he had raised the construction about 20 years back, nor he has produced any document to indicate the nature of the construction which he had put up. In any case the mere fact that the petitioner had raised certain construction without any permission from the respondent No. 1 would not confer any right or title on the petitioner as to disentitle the respondent No. 1 to take action for eject ment against him in accordance with how. It is an admitted position that the petitioner has never been allotted the plot is question nor he has ever paid any ground rent for the said plot to the respondent No.

1. Therefore, his, status in relation to the plot was that of a trespasser.

6. Reverting to the second contention, it will suffice to say that the acceptance of the property tax by the respondent No. 1 cannot tantamount to according of recognition to the petitioner as an authorised occupant. In our view mere acceptance of the property tax by the respondent No. 1 will not make the petitioner's occupation legal. Under the Municipal Law there is a procedure provided for the granting of leases in respect of the Municipal) land. It is not the case of the petitioner that he had ever applied for such lease and, therefore the question of according recognition to the petitioner by the respondent No. 1 did not arise, at any stage prior to the service of the impugned notice.

7. Referring to the last contention it may be observed that the Martial Law Order 67 provides framing of schemes for the regularisation and develop ing of Katchi Abadis. It is not shown by the petitioner that the plot in question is a part of Katchi Abadi. According to the finding of the respon dent No. 2 the portion of land in dispute is a part of a surveyed plot reserved for amenity. In view of the above discussion, we find no merit in the petition and, therefore, the same is dismissed in limine. M. A. K. Petition dismissed.