1995 PLP 1383 (MLD)

We have perused section 19 of the Sindh Katchi Abadis Act, 1987. It provides. for issuance of notification in official Gazette declaring any area or apart thereof, wholly or partially occupied unauthorisedly, as a Katchi Abadi. However, as is indicated by subsections (2), (3) and (4) of section 19 of the said Act, certain area cannot be declared as such under section 19 of the said Act, unless the conditions, if any, laid down by the said subsections are fulfilled. Subsection (3) of section 19 of the said Act under which the land in question has apparently been acquired provides as follows:‑‑‑ "S.19(3).‑‑‑No area owned by a private person or a cooperative society shall be declared as Katchi Abadi except with the consent of such person or society and the Katchi Abadi so declared shall be subject to such terms and conditions as may be agreed to between such person or, as the case may be, society and the Authority." It is also pertinent to reproduce subsection (6) of section 19 of the Act which provides as follows: "S.19(6): --‑Where the Authority is of the opinion that the area referred to in subsection (3) cannot be acquired by consent or agreement, the area may be acquired and compensation therefore, be paid in accordance with the provisions contained in Chapter IV of the Hyderabad Development Authority Act, 1976 which shall be deemed to have been modified for the purpose of this Act as follows: (a) References to the Authority, its Chairman and Member shall respectively be construed as the references to the Authority constituted under this Act, its Chairman and Member. (b) The compensation for acquisition of the area shall be determined and award on that behalf shall be made by a Tribunal. (c) The Tribunal shall have all the powers of a Collector exercisable by him while determining the compensation or making award. (d) Reference to Collector in sections 44, 45 and 46 shall respectively be construed as reference to the Tribunal. The plain reading of the aforesaid subsections indicate that no area owned by a private person or a Cooperative Society was to be declared Katchi Abadi except with the consent of such person or the society, as the case may be. The said subsections further indicate that when a Katchi Abadi is so declared, it would be subject to such terms and conditions as may be agreed to between such person, or as the case may be the society and the Authority. Subsection (6) of section 19 of the said Act further shows that where in the opinion of the Authority, an area referred to in subsection (3) cannot be acquired by consent or agreement, the same may be acquired and compensation thereof be paid in accordance with the provisions contained in Chapter IV of the Hyderabad Development Authority Act, 1976 which shall be deemed to have been modified for the purpose of the Sindh Katchi Abadis Act, 1987. Further details in this regard can be found in clauses (a) to (d) of subsection (6) of section 19 of the said Act. It is not the case of the petitioner that the land was acquired by respondent No. 2 under section 19 (6) of the said Act. On the contrary, there appear to be sufficient evidence to show that the land had been acquired under section 19 (3) of the said Act as admittedly the petitioners themselves applied to respondent No. 2 for compensation in respect of the said land by allotment of alternate land or monetary compensation. As is clearly indicated by subsection (3) of section 19 of the said act, in case the owner gives his consent for declaring his land as a Katchi Abadi, then the same would be subject to only such terms and conditions which have been agreed to between such owner and the Authority. Consequently in case the Authority, after entering into an agreement with the owner, fails to honour the terms and conditions of such agreement, the owner cannot seek any remedy against the Authority by filing of a Constitution petition but the obligation of the Authority, being a contractual obligation, the same can be enforced by filing a suit. Subsection (3) of section 19 of the said Act further indicates that it is up to the owner to determine the terms in respect of compensation etc., with the Authority and, in case the owner fails to arrive at a comprehensive settlement and leaves certain matters still undetermined, then, in that case, he should only blame himself. No doubt, the case would be different if the property has been acquired under section 19(6) of the said Act because, that would bring into play the machinery provided by Chapter IV of the Hyderabad Development Authority Act, 1976, as modified by subsection (6) of section 19 of the said Act. Consequently, even if we agree that the petitioners have not been fairly dealt with by any person liable to pay compensation to them, the obligation arising out of an agreement, we would not like to interfere, while exercising powers under Article 199 of the Constitution as adequate remedy can be sought by the petitioner in such case by filing of a suit. In the result, we are not inclined to entertain the two petitions which are dismissed in limine. It is, however, open to the petitioners to seek any other remedy available to them under the law. AA./T‑171/K Petition dismissed.