1989 PLP 3612 (MLD)

(f) Cost of the petition." The brief facts leading to the filing of the above petition arc that the petitioner No.] claims to an Association by the name of Anjuman Falah-e -Bahbood Dokandaran Babar Market (hereinafter referred to as the Market. Whereas the petitioner No.2 claims to be a lessee of a shop situated in Babar Market Landhi (Korangi Township) under the registered lease-deed date 17-10-1981. The grievance of the petitioners is that on the original plan of the Market demarcated specifically open space, parks, mosques, streets, roads, parking yards and other amenities like library and welfare centres were included and because of the above original plan the shopkeepers were attracted to purchase the shops, but the respondent No.1 who had taken over the control and the management of the Market in 1957 after its incorporation by the K.D.A. Order, '9957 from the Pak P.W.D. in violation of the K.D.A. Order (hereinafter referred to as the Order) has revised the scheme to the detriment of the shopkeepers inasmuch as the respondent No. 1 has carved out commercial plots inside the Market and auctioned the same. . The respondent No. 1 in their counter-affidavit has denied the above allegations and has averred that the petitioner No.2 and the other shopkeepers in fact encroached upon the open land lying in front or at the rear of their shops and that the petitioner No.2 has no locus standi to challenge the action of respondent No.1 to utilise the land which was not allotted to the petitioner No.2 or to other shopkeepers. In support of the above petition Mr. Ubaidur Rehman learned counsel for the petitioners has contended as follows:-- (1) That revising of the original plan either constitutes framing of a new scheme or revising of a scheme and therefore the provisions contained in Articles 28, 37 or in Article 32 of the Order were to be complied with. (2) That in any case Article 54 provides the mandatory width of a street which is open for vehicular traffic as 40 feel and 20 feet for the other street and since in the revised plan the width of the passages within the Market have been reduced the same amount to violation of above Article. Adverting to the first submission of Mr. Ubaidur Rehman we may state that the term "improved area" has been defined in clause K of subsection (1) of the section 2 of the Order by providing as means any area which is under an improvement scheme and "scheme" means a scheme connected with housing, improvement, development, construction, sewerage, water supply, resettlement, financing and researching and matters incidental thereto. In our view there is a distinction between a scheme and a project. The term scheme connotes a scheme for a particular area, whereas a project generally is on a building site. In the instant case the Market is situated on a building site. We are inclined to hold that the Market cannot be said to be a scheme in terms of the above clause (K) of subsection (1) of section 2 of the Order and, therefore, the provisions relied upon by the learned counsel for the petitioners cannot be pressed into service. As regards the second submission of Mr. Ubaidur Rehman, he has referred to Article 54 which provides as follows:-- "

54. Width of street and levelling, etc. thereof-(1) No street laid or altered by the Authority shall be less than forty feet wide, if it is intended for vehicular traffic, or less than twenty feet wide, if it is intended only for pedestrian traffic: Provided that-- (i) the width of an existing street need not be increased to the minimum required by this sub-section if, in the opinion of Authority, such increase is impracticable; and (ii) nothing in this subsection shall apply to service passages for sanitation. (2) In every street laid out or altered by the Authority, the Authority shall make provision for the levelling, paving, metalling, flagging, channelling, sewering and draining of the street and the provision therein of lighting, water and sanitary conveniences ordinarily provided in a municipality." A perusal of the above section indicates that it provides that no street laid or altered by the Authority shall be less than forty feet wide, if it is intended for vehicular traffic, or less than twenty feet wide, if it is intended only for pedestrian traffic. However the two provisos to subsection (1) of the above article provide that the width of an existing street need not be increased to the minimum required by this subsection if, in the opinion of Authority, such increase is impracticable and secondly nothing in the section shall be applied to service passages for sanitation. It was contended by Mr. Ubaidur Rehman that since the definition of the word street has not been given in the Order, reference should be made to the ordinary meaning given in a dictionary and hence the passages provided in the Market arc to be construed as streets. We are unable to subscribe to the above submission. We are inclined to hold that the reference to a street in the above Article 54 relates to the street which is intended for use by the public at large and not to a passage provided in a market. We may observe that there are number of suits pending in respect of the Market filed by the lessees. The questions whether any easement rights or any other rights have been affected by the alleged illegal action on the part of the respondent No.1 is the subject-matter of the suits. We have not examined the above question as the same requires the recording of evidence. Any observation contained in the present judgment will not prejudice the parties to the above suits or to the right of the petitioners to contend that the impugned action has violated any easement right or any other right recognized by law. With the above observations the petition is dismissed but there will be no order as to costs. The Contempt application being C.M.A. No. 317/85 to come up for hearing. M.Y.H./A-556/K