1983 PLP 1766 (CLC)

AJMAL MIAN, J.‑This is a petition, in which the petitioner has impugned the order dated 21st June, 1981 passed by respondent No.

1. The relevant facts leading to the filing of the above petition are that the petitioner had obtained 10 years lease for 16 acres of Barani Land, situated in Deb Khanto, Taluka and District Karachi, for the period commencing from 1973‑74 and expiring in the year 1983‑

84. It seems that respondent No. 2 issued a notice dated 5tb October, 1980 stating therein,, that the land was required for public purpose for Port Muhammad Bin Qasim for access roads and that the lease was cancelled under condition No. 21 of the statement of conditions of the State Land for Poultry farming read with section 29 of the Colonization Act, (hereinafter referred to as the Act). It further seems that the petitioner challenged the above order through Constitutional Petition No. D‑1468 of 1940, which was disposed of by a Division Beach of this Court by a consent order dated 6th May, 1981 in the following words :‑ By consent the above petition is disposed of in the following terms, with no order as to costs. The petitioner shall appear before respondent No. 1 who shall determine after hearing the parties as to whether the petitioner is entitled to receive any compensation. Till the decision of respondent No. 1 the petitioner's possession shall not be disturbed, nor the structure, if any, will be de molished. Respondent No.1 shall decide the case within one month."

2. After the passing of the above order, the petitioner appeared before respondent No.1 and again requested for determination of the amount of compensation. However, respondent No. 1 through his order dated 21st June, 1981 declined to grant any compensation to the petitioner on the ground that there was an abandoned and useless shade on the land. The petitioner being aggrieved by the above order has filed the present second petition:

3. In support of the above petition Mr. S. H. Rizvi, learned counsel for the petitioner has made the following two submissions :- (i) That since the original order dated 5th October, 1980, was passed under condition No. 21 read with section 24 of the Colonization Act, the petitioner is entitled to be compensated in terms of section 25 of the Act. (ii) That since respondent No. 1 awarded compensation to other similar allottees, the petitioner cannot be discriminated.

4. As regard the first contention, it may be appropriate to refer to condition No. 21 of the grant, which reads as follows :‑ "the lessee shall within 30 days of the issue of a notice by the Deputy Commissioner/Revenue Moot, Kotri Barrage, that the whole or any part of the land is required for public purpose or exercise of mineral rights, surrender the whole or part without any claim of compensation." It may be noticed that under the above condition, the petitioner agreed to surrender the land without claiming any compensation in case the land was needed for the public purpose. However, it has been urged by Mr. Rizvi that this clause cannot be pressed into service for compensation for the lease hold rights of the land, but it does not debar him from claiming compensation for the structure. We are inclined to hold that in case respondent No. 2 wishes to retain the structure on the plot, the petitioner will be entitled to claim compensation for the structure. However, in case the petitioner is allowed to remove the structure, no amount can be claimed as compensa tion for the structure. It is not the case of the petitioner before us that he was prevented from removing the shade raised on the above plot.

5. As regards Mr. Rizvi's contention that the above notice date 5th October, 1980 bad also referred to section 24 of the Act, the petitioner is entitled to be compensated ‑in terms of section 25 of the Act, it will suffice to observe that section 24 of the Act was not attracted to as it governs a case of breach of condition of the tenancy and, therefore, section 25 of the Act cannot be pressed into service. In the above notice dated 5th October, 1980, not only section 24 of the Act has bee referred to, but reference to above‑quoted condition No. 21 has also been made. In our view, a wrong reference to section 24 of the Act in the notice of cancellation will not entitle the petitioner to claim compensation if otherwise he is not entitled to claim the same in view of above‑quoted condition No. 21 of the grant.

6. Reverting to the last contention of Mr. Rizvi that other similar allottees have been provided alternate lands and have also been paid compensation and, therefore, the petitioner is entitled to be treated alike with the others, it may be observed that he has cited example of the peti tioner's cider brother Mr. Tauqir Ahmad Ansari, who according to him has been given 16 acres alternate land and has also been awarded compensation to the tune of rupees three lacs. In our view the fact that the petitioner's elder brother has been given alternate land or has been paid compensation, will not confer a right upon the petitioner to claim the same, unless the petitioner's claim is backed by some provision of law or provision of a scheme having the force of law' which is lacking in the instant case. However, it is open to the petitioner to approach the competent authority and to make efforts for obtaining the alternate land but this Court cannot direct the respondents to give alternate land or to pay compensation in the absence of any provision of law. Before parting with the above discussion, it may again be observed that the petitioner is at liberty to remove the structure from the land but in case the respondents would retain the shade, the petitioner shall be entitled to be compensated for the same.

7. With the above observations the petition is dismissed, but there will be no order as to costs. M. Y. M. Petition dismissed.