1983 PLP 2654 (CLC)

AJMAL MIAN, J.-By the common judgment we intend to dispose of the above two petit-ions. The brief facts leading to the filing of the above petitions are as follows :- Petition No. D-829 of 1980.-In this petition it has been averred by the petitioner that he is the Councilor of Union Committee, Unit No. 8 of Gulistan Scout Colony, Deh Gujro, Karachi and being Councilor he is representing the entire, population of 5000 persons who have been residing there for the last 15 years. It has also been averred in the petition that since the residents of the Colony have been residing since long before 1st January, 1978, their possession cannot be termed as encroachment and that they are entitled that the above Colony be dec lared as Katchi Abadi under M. L. O. 110 and the respondents be rest rained from interfering with their possession or carrying out demolition. Petition No. D-858 of 1980.-This petition .has been filed by four petitioners, in which it has been averred that they are residents of Sikandar Goth, Karachi for years back and that since their occupation is prior to 1st January, 1978, the above Colony be declared as Katchi Abadi under M. L. O.-

110. A declaration has been sought that the demolition work which was being carried out was without lawful authority and a direction to stop further action. 2: By an order dated 19th March, 19.81 Mr. Naqvi, Administrative Officer Katchi Abadies, by consent of the parties, was directed to carry out the survey of the two Colonies involved in the above two petitions. He has submitted his report dated 22nd April, 1981 which is as follows, - "Subject : Constitutional Petitions in regard to villages and colonies located in K.. D. A. Schemes Nos. 24-33 and Metroville-111. As desired by the honourable High .Court, Sind, on 19th March, 198 that the undersigned in company with the concerned Advocate, should visit the sites of Scouts Colony and Sikandar Colony to verify whether or not the encroachments have been removed, on Saturday the 21st March, 1981 positively and .report the facts before the date of next hearing of the above petitions. The undersigned accordingly fixed the programme with the concerned Advocate and assembled in the office of the Deputy Commis sioner (East), Karachi on 21st March, 1981 at 9-00 .a. m. and requested the Assistant Commissioner to depute some Tapedar for the purpose of survey work. The Assistant Commissioner did not accept the request for want of instructions from the High Court. The undersigned, therefore, in company with the concerned Advocate Mr. Ahmedullah Farooqui, visited the sites and the observations are as-under (1) Scout Colony A large number of pucca and semi-pucca houses are in the said Colony, some fresh encroachments along the main road were removed. (2) Sikandar Colony The encroachment is of purely temporary nature and about 100 or so hutments are there. with block walls, without any sort of mortar. (Sd.) 22-4-81. Forwarded for information and with the request to apprise the honourable Court accordingly. (S. Mustafa Akbar), Director Local Govt., Karachi."

3. According to the above report in the Scout Colony which is the subject-matter of Petition No. D-829 of 1980. there are a large number of Pucca and Semi-pucca houses and some fresh encroachments, whereas in the Sikandar Colony, which is the subject-matter of Petition No. D-858 of 1980, the encroachment is of purely temporary nature and about 100 or so hutments are there with blocks walls without any sort of mortar.

4. Be that as it may, it has been urged by the learned counsel for the petitioners that in view of the decision given by a D. B. of this Court by judgment dated 19th March, 1981 (to which one of us was a party) in C. `P. D-915/ 1980, the petitioners in any case are entitled that their case should be considered by the competent .authority for the purpose of deciding as to whether the Katchi Abadies in question may . be declared as Katchi Abadies for the purpose of the above M. L. O. It may be advantageous to reproduce hereinbelow para. 4 of the above judgment :- "As observed. by us -hereinabove that we are not inclined to hold that the Government is bound to issue a notification for declaring every Katchi Abadi for the purpose of the M. L. O. 110 and that no vested right can be claimed by. the unauthorised occupants of Katchi Abadi till the time a notification is issued and the other requirements of the M. L. O. are fulfilled. However at the same time we are of the view that the Government is to decide the question as to whether a particular Katchi Abadi is to be notified as a Katchi Abadi for the purpose of the M. L. O. It is an admitted position that the competent authority under the M. L. O. has not adverted to this respect in respect of the Katchi Abadi in question. We were, therefore, inclined to hold that the petitioners are entitled that their case may be consider by the competent authority and it is for the Government to decide as to whether the unauthorised occupation in question is to be regularised or not. We, therefore, direct the respondent No. 1 to the petitioner's case for the purpose of deciding as to whether a notification as per para. 2 of the M. L. O. is to be issued or not. The above decision can be made by respondent No. 1 as early as possible, however, ti'1 the time the decision is made the petitioner's possession may not be disturbed. The above petition stands disposed of in the above terms with no order as to costs," 5. 1t is evident from the above-quoted para. that a D. B. of this Court has held that the Government is not bound to issue a notification for declaring every Katchi Abadi as a Katchi Abadi for the purpose of the M. L. O. and that no vested right can be claimed by the un authorised occupants of Katchi Abadi till the time a notification is issued and the other requirements of the M. L. O. are fulfilled, but at the same time it has held that the unauthorised occupants are entitled that their case should be considered by the competent authority under M. L. O. 110 for the purpose of deciding as to whether their Colony be declared as a Katchi Abadi. 1n this view of the matter, we will direct the petitioners to move the Director. Local Government and Co ordinator, Katchi Abadi (respondent No. 5) in Petition No. 858/19801 with the applications that their case be considered within two weeks from today and it will be open for the Director, Katchi Abadi to decide the application as early as possible after hearing the applicants and the contesting respondents, namely, Karachi Development Authority and the Deputy Commissioner (East), Karachi and till then the status quo is to be maintained.

6. The above petition stands disposed of in the above terms with no order as to costs. K. M. R. Petition disposed of.