P L D 1970 Supreme Court 497 (PLP)

MUHAMMAD YAQUB ALI, J.‑These connected appeals by special leave arise out of two suits filed by the appellants in the Court of the Civil Judge, Jhelum, impugning the resolutions passed by the defendant‑Municipal Committee, Jhelum, on 25th October 1962 and 28th November 1962, for demolition of the platforms constructed in front of the shops of the plaintiffs on either side of the main public street of the town. The trial Court dismissed the suits, but the District Judge, Jhelum, on appeal, granted the plaintiffs a declaration that the impugned resolutions in pursuance to which notices for demolition of the platforms were issued to the plaintiffs were illegal, without jurisdiction and of no legal effect. Consequential relief by way of permanent injunction was also granted restraining the defendant from demolishing the platforms. The defendant there upon preferred second appeals in the High Court which were allowed by a learned Single Judge. He found one of the suits not properly constituted as notice under Article 94 of the Basic Democracies Order read with section 127 of the Municipal Administration Ordinance, 1960, had not been given and allowed the appeal on that ground. In the other appeal the learned Judge on examining the provisions of section 83 of the Municipal Administration Ordinance and the bye‑laws framed by the defendant in 1954 held that the resolutions were passed with lawful authority and in the result dismissed both the suits. Further appeals filed by the plaintiffs in the High Court were dismissed by the Letters Patent Bench from which leave to appeal was granted to consider whether the plaintiffs were, under section 83 of the Municipal Administration Ordinance, entitled to receive compensation for the removal of the platform constructed by them or their predecessors with the permission of the defendant some twenty‑five years before the notices for demolition were given. During the hearing of the appeals Mr. S. M. Zafar also argued that under section 83 of the Munici pal Administration Ordinance only those encroachments could be removed by a Municipal Committee which had been net up after the coming into force of the Ordinance. As will be seen presently there is no force in either contention. The learned Single Judge firstly relied on the bye‑laws passed by the defendant in 1954 to regulate the grant of permis sion to make encroachment in or over a street, drain, etc. Bye‑law 6 provides that every person intending to make, erect or re‑erect any immovable encroachment on any street under section 172 (i) of the Punjab Municipal Act shall apply to the Committee on a prescribed form for the purpose. Bye‑law 8 lays down that if the application is accepted the permission to make, erect or re‑erect the encroachment shall be given in the form of a prescribed licence on payment of licence fee. Bye‑law 12 provides that the Committee may by written notice re quire the licensee to remove the encroachment within a specified time not exceeding six weeks. Finally Bye‑law 13 provides that any immovable encroachment permitted by the Committee prior to the coming into operation of those bye‑laws shall, in future, be governed by them. These bye‑laws were held to be in force after the repeal of the Punjab Municipal Act by virtue of section 4 of the Municipal Administration Ordinance which provides as under: "4(1) On the coming into force of this Ordinance in any area, the enactments mentioned in the First Schedule shall, if and in so far as applicable to that area, stand repealed. (2) Where an enactment stands repealed under subsection (1) any appointment, rule, regulation, or bye‑law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance." Subsection (2) of section 83 of the Municipal Administration Ordinance, 1960, opens with the clause, "Subject to bye‑laws, a Municipal Committee, may by notice require the person responsi ble for any such encroachment to remove the same". The bye‑laws of 1954, were, therefore, not only in force by virtue of section 4, but also supplemented the provisions of section

83. In that view the learned Judge held the impugned resolution to be with lawful authority. Next dealing with the decided cases delivered under section 172 (i) of the Punjab Municipal Act; 1911, the learned Single Judge pointed out that the provisions of section 83 were materially different from section 172 (i) and on that ground distinguished viz. Kanshi Ram and others v. Municipal Committee, Moga (A I R 1934 Lah.1011), Faqir Chand v. Municipal Committee, Ludhiana (A I R 1934 Lah. 1021), Mistry Muhammad Hussain v. Municipal Committee, Sialkot (A I R 1936 Lah. 689) and Anant Ram v. Small Town Committee, Pundri (A I R 1936 Lah. 84), relied upon by the plaintiffs' counsel in support of the contention that only those encroachments could be removed which had been made after the Punjab Municipal Act, 1911, had come into force. Some of these cases also laid down that a notice for removal of an encroachment without offer of compensation was bad in law. This dictum was held to be inapplicable for which section 172 of the Punjab Municipal Act specifically provided for payment of compensation for removal of unauthorised encroachments which had been in existence for three: years, subsection (4) of section 83 of the Municipal Administration Ordinance to the contrary provides that: "(4) Notwithstanding anything in any other law, no compensation. shall be payable for any encroachment removed or required to be removed under this section." Lastly the learned Judge observed that the impugned notices were passed:

in the interest of Municipal Administration of the area under its control, namely, in the discharge of the functions entrusted to the Municipal Committee by the Municipal Ad minis: ration Ordinance. Generally the platforms are constructed in front of shops on either side of the main bazar of the town blocking half the width of the street. The plat forms are, therefore, a source of obstruction to the flow of traffic in the principal shopping centre of Jhelum and there could be no valid objection to their demolition." Both the appeals were, accordingly, allowed, against which the plaintiffs preferred, as mentioned earlier, Letters Patent appeals in the High Court. The Letters Patent Bench reversed the finding of the learned Single Judge on the question of notice under section 94 of the Basic Democracies Order read with section 127 of the Municipal Administration Ordinance and relied for this purpose on the amending Ordinance XXXV of 1963 which provides that no notice is necessary in cases in which prayer for an injunction was made. Application of this Ordinance had been ruled out by the learned Single Judge in the view that it was promulgated after the institution of the suit. The Letters Patent Bench, however, considered the provisions relating to notice as procedural in nature which would apply to pending causes also. In the alternative the suits were considered to have been instituted on the date on which the Ordinance came into force. A greater part of the judgment of the; Letters Patent Bench is confined to the discussion on the maintainability of a suit without giving a notice under section 94 of the Basic Democracies Order read with section 127 of the Municipal Administration Ordinance although even if one of the suit was dismissed on this ground a favourable declaration given in the other suit would have been equally efficacious for the plaintiffs. On the main issue the Letters Patent Bench concurred in the view formed by the learned Single Judge that the provisions of on a Municipal Committee the power to remove all encroachments in or over a street without payment of compensation. The power was considered to be available to the defendant even if the Bye‑laws of 1954 were not. applicable after the repeal of the Punjab Municipal Act. Both the appeals were, accordingly, dismissed from which leave to appeal was granted to the plaintiffs. As indicated above, Mr. S. M. Zafar appearing in support of the appeals raised twofold arguments. Firstly, that as the platforms were constructed with the permission of the defendant, when the Punjab Municipal Act, 1911, was in force and these platforms had remained in existence for over 25 years his clients had acquired a vested right to receive compensation as provided in sections 172 and 175 of the Act and secondly that under subsection (2) of section 83 only those encroachments can be directed to be removed which are made after the promulgation of the Municipal Administration Ordinance. To appreciate the argument we must first refer to the provisions of sections 172 and 175 of the Punjab Municipal Act which provide as under: "172. (i) whoever without the written permission of the committee makes any immovable encroachment on or under any street, on, over or under any sewer, or water course, or erects or re‑erects any immovable overhanging‑ structure projecting into a street at any point above the said ground level, shall be punishable with a fine which may extend to fifty rupees. (2) The Committee may, by notice, require the owner or occupier of any building to remove or alter, within a specified time not exceeding six weeks, such immovable encroachment or overhanging structure as aforesaid, and no compensation shall be claimable in respect of such removal or alternation: Provided that if a period of more than three years has elapsed from the completion of the encroachment or overhang ing structure, no prosecution shall lie under subsection (i); nor shall such encroachment or overhanging structure be required to be removed or altered without payment of reason able compensation.

175. The committee may, subject to the payment of reason able compensation, by notice, require the owner or occupier of any building within a period of not less than six weeks, to be specified in such notice, to remove or alter any balcony, projection, structure or verandah, erected with the sanction on any street or into or on any drain, sewer or aqueduct therein." It may be pointed out at the outset that the word "encroachment" is used in two different senses. Firstly in the sense to "intrude usurpingly others' territory, rights". Secondly, in the sense that construction is put upon a street under a licence from the Municipal Committee in whom the street vests. It is an encroachment as it intrudes upon a public street though made with the permission of a municipal committee. Section 172 deals with the first category of encroachments while section 175 provides for the second category. Compensation is payable in cases falling under the first section if the encroachment has lasted for three years or more while under the second section compensation is payable without any time limit. Both these sections were replaced by section 83 of the Municipal Administration Ordinance in the year 1960 which provides:‑ "83, Encroachments.‑(1) No person shall make an encroachment, movable or immovable, on, over or under a street or a drain, road and public grave yards within Municipal limits, except under a licence granted by a Municipal Committee and to the extent permitted by the licence. (2) Subject to bye‑laws, a Municipal Committee may by notice require the person responsible for any such encroachment to remove the same within such period as may be prescribed, and if the encroachment is not removed within such period, the Municipal Committee may cause the encroachment to be removed through its own agency, and the cost incurred thereon by the Municipal Committee shall be deemed to be a tax lavied on the person responsible for the encroachment under this Ordinance, (2‑A) Whoever trespasses into, or is in wrongful occupation of a building, which is the property of a Municipal Committee, may, in addition to any other penalty to which he may be liable under this Ordinance or any other law for the time being in force after such notice as may be prescribed, be ejected from such building by the Municipal Committee with such force as may be necessary. (3) Any person aggrieved by a notice issued under sub section (2) may within such period as the bye‑laws may provide, appeal to the Controlling Authority, whose decision thereon shall be final. (4) Notwithstanding anything in any other law, no com pensation shall be payable for any encroachment removed or required to be removed under this section." In construing section 83 the learned counsel laid emphasis on the words: "No person shall make an encroachment" in sub section (1) and the words: "any such encroachment" in subsection (2). It was urged that "any such encroachment" relates to encroachments made after the promulgation of the Ordinance. While subsection (1) forbids future encroachments it does not follow that subsection (2) is also limited in time. There is no warrant for this interpretation. The word 'such' in subsection (2) abbreviates the description of encroachment in subsection (1) namely, "movable or immovable, on, over or under a street or a drain, road and public graveyards within Municipal limits". In According to the ordinary grammatical rule the word 'such' in subsection (2) does not relate to the command of the law in1 subsection (1) that "No person shall make an encroachment" but relates back to the description of the encroachment in subsection (1). A contrary construction will create a lacuna in the Ordinance as there will be no provision for demolition of encroachments made on public streets before the coming into force of the Municipal Administration Ordinance which is both a consolidating and amending statute. Section 83 with the exception of subsection (4) consolidates the previous law on the subject contained in sections 172 and 175 of the Punjab Municipal Act, 1911. The rule of construction is that if an Act is initialed an Act to consolidate previous statutes the Courts may lean to a presumption that it is not intended to alter the law and may resolve doubtful points by aid of such presumption of intention rejecting the literal construction. Swan v. Pure Ice Company Limited ((1935) 2 K B 265). Section 83 both consolidates and amend the provision contained in sections 172 to 175 of the Punjab Municipal Act. It must follow that except where there is an express departure such as in subsection (4) Courts will presume that there has been no change in the law. A fortiori encroachments made after the enforcement of the said Act are liable to be removed in exercise of the powers conferred by subsection (2) of section

83. A perusal of the Municipal Laws in the sub‑continent will further show that the power to remove both authorised and unauthorised encroachments had always been vested in the Municipal Bodies. There is a reason behind it. Among other functions the Municipal Bodies have the duty to provide for traffic control within the Municipal limits. Section 86 of the Municipal Administration Ordinance charges all Municipal Committees with the duty to make bye‑laws for the control and regulation of traffic as may be necessary to avoid personal danger to and ensure the safety, convenience and comfort of the public. If in each case a Municipal Committee has to file a suit for removal of an encroachment it will become impossible for it to fulfil this command of the law as years will run out before a single suit has been decided: It is painful to recall that the present suits were filed in 1962 and eight years have gone by before their final disposal. It must follow that section 83(2) is intended to empower a Municipal Committee to remove an encroachment from a public street whether made before or after ‑the Municipal Administration Ordinance came into force in 1960. It is pertinent in this respect to point out that the change introduced in subsection (4) of section 83 of the Municipal Administration Ordinance is in accordance with the general policy of law incorporated in the Easements Act, 1882. Section 52 defines licence as:‑ "

52. Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence." Construing this section in Abdullah Bhai and others v. Ahmad Din (P L D 1964 S C 106) this Court observed:‑ "A lease is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he created a lease, transfers to the lessee a part of the rights of ownership, i.e., the right of enjoyment of the property, for a period, for consideration. During the continuance of the lease the right of enjoyment of the property belongs to the extent and not to the landlord. The right of ownership as well as the rights of which it is composed are rights in rem and not in personem and by lease a right in rem is transferred to the lessee. On the other hand a "licence" is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licensee only a personal agreement between the licensor and licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee." In Ashfaq Hussain and others v. Karachi Municipal Corporation (P L D 1957 Kar. 918) a Division Bench of the High Court of West Pakistan, Karachi, decided thus:‑ "A licence is a mere voluntary suspension of the licensor's; right to treat certain acts as wrongful. Where, therefore, a person puts up any wooden cabin on the street with the permission of the Municipal Corporation he is a mere licensee for no interest in the land much less exclusive possession is delivered to such a cabin holder. The moment the permission is withdrawn the act of keeping cabin becomes unlawful." Such being the nature of a licensee's right, section 63 of the Easements Act provides that when a licence is revoked the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property. Under the next succeeding section a licensee is entitled to recover compensation only when a licence has been granted for a consideration and the licensee without any fault of his own is evicted by the grantor before he has fully enjoyed under the license the right for which he contracted. In the present case the plaintiffs' licences were renewable from year to year and under the bye‑laws terminable on notice. They could not, therefore, claim compensation for removal of the platforms constructed by them or their predecessors‑in‑interest on the public street with the permission of the defendant. The right to receive compensation was created by the Punjab Municipal Act, 1911, and as seen taken away expressly by the Municipal Administration Ordinance, 1960. In the above view, the plaintiffs have been rightly non‑suited by the High Court. The appeals are, accordingly, dismissed with costs throughout. S. Q. Appeals dismissed.