1986 PLP 1622 (MLD)

2. The petitioner has filed a civil suit being Suit No. 2865 of 1975. in the Court of Vllth Civil Judge, Karachi West, against the landlords/ respondents namely: (1) Muhammad Ismail son of Haji Abdul Kadir, (2) Muhammad Yasin son of Haji Abdul Kadir, (3) Mst. Gulsher Bano alias Nasreen Bano daughter of Haji Abdul Kadir, and (4) Mst. Rehmat Bibi alias Rahman Parveen daughter of Haji Abdul Kadir for declaration and injunction and an order to maintain status quo has been passed against the landlords against which it is stated that the respondents have preferred a civil appeal.

3. It is the case of the petitioner that on 19‑2‑1986 the petitioner alongwith other alleged tenants the plot of land received from the Director Land Management, Authorised Officer K.D.A. Anti Encroachment Cell a show‑cause notice under .Martial Law Order 202 stating that he has illegally raised structure and construction on the plot of land and has encroached upon public property as defined in clause 4(c) of Martial Law Order 202 and requiring him to vacate and remove the structure from the plot of land within seven days from the receipt of the notice or to show cause why encroachment should not be removed.

4. He has therefore, questioned this notice as being illegal, ultra vires and without lawful authority and jurisdiction in this petition under Article 199 of the Constitution on the ground that the same has not been issued by an authorised officer in terms of paragraph 6 of Martial Law Order 202 and the notice cannot be extended to private land.

5. By the order, dated 16‑2‑1986, we called for parawise comments from the Director Land Management Authorised Officer K. D.A. (Anti Encroachment Cell), the respondent No.2, and also issued notice of the injunction application to the respondents as well as to the Advocate General, Sind. Thereafter, on Ist March, 1986, respondents 6 to 9 namely (1) Muhammad Ismail, (2) Muhammad Yasin, (3) Mst. Gulsher, (4) Mst. Rehmat Bibi, applied under Order 1, rule 10, C.P.C. to be joined as a party. This application was allowed by the order, dated 13th March, 1986. Meanwhile, on 4th March, 1986, respondent 2 filed parawise comments to the petition. Thereafter, on 12th March, 1986 the petitioner applied for amendment of the petition. Both the aforesaid applications were allowed and the amended petition after joining the respondents has been filed.

6. A counter‑affidavit has also been filed on behalf of respondents 6 to 9 in reply to the application for amendment or the petition wherein respondent 6 has stated that the plot in question‑‑was under the management and control of the K.D.A., the respondent 1 and that the legal possession of the plot has not been handed over to them i.e. respondents 6 to 9 as they were minors under the guardianship of the "Nezir of the District Court from 1966 to 1983 and that they, after the discharge of the Nazir as guardian by the Guardian Judge by the order, .dated 3‑12‑1983, applied to the K.D.A., for handing over to them the physical possession of the plot, but the possession was not handed over as the same was encroached upon by the petitioner and one Naseeb Khan. 7 We have heard learned counsel for the petitioner and Mr. S.H. Qazilbash for K.D.A. and Mr. Siddiq Nizamani for respondents 6 to 9.

8. The main argument of Mr. Sharif Khattak was that the notice under Martial Law Order 202 is not issued by an authorised officer and the respondents have no jurisdiction as the land is a private land.

9. On the other hand, it is contended by Mr. Sabir Hussain Qazilbash that the petitioner is a tres passer and the land still vests in the K . D . A . , as no lease or licence agreement has been executed in favour of respondents ‑6 to'

9. Mr. Sabir Hussain Qazilbash also produced the notification which reads as follows:‑ "The Government of Sind is, pleased to appoint the Deputy Commissioner (East), Deputy Commissioner (West) and Deputy Commissioner (South), Karachi, Director Land Management Karachi Development Authority and Director Land and Estate K.M.C., as "Authorised Officers" to exercise the powers and to perform the functions under para. 6 of Martial Law Order 202 in relation to removal of encroachment in areas under their jurisdiction. "

10. The case of the other respondents is that though the land has been allotted but the possession has not been delivered and, therefore, the property continues to vest in the K. D.A., and is, therefore, public property. Further case of the other respondents is that the question of their leasing out the land to the petitioner did not arise as the land was under the guardianship of the Nazir of District Court who was discharged only in 1983.

11. In our view the real questions for consideration in these proceedings are whether the notice is legal, valid, or .not and whether the property is public property. Since the notification produce establishes that they notice under Martial Law Order No. 202 was serve by an authorised officer, and since the land continues to vest in K.D.A., therefore, the notice does not call for any interference b this Court in these proceedings. In any case the petition is premature on the second question as the petitioner should have shown cause i reply to the notice.

12. We, therefore, find no force in this petition and accordingly dismiss it in limine as no notice has been issued to the other respondents. H.B.T. Petition dismissed.