JAWWAD S. KHAWAJA, J.--- Fateh Muhammad etc. Respondents/plaintiffs filed a suit seeking declaration .And perpetual injunction. The prayer made by them was that the petitioners, namely, the Province and the Sub-Divisional Officer, Highways Sub-Division No.1, Khushab, should not interfere in the ownership and possession of the respondents over 3 Kanals and 3 Marlas described in the headnote of the plaint. It was also prayed by the respondents that the petitioners/defendants be restrained from demolishing any structure which may have been raised by the respondents over the suit-land. Lastly it was prayed that the petitioners be restrained permanently from stopping the respondents from raising new structures on the suit-land.
2. The petitioners are responsible for constructing and maintaining highways and roads in accordance with the provisions of the West Pakistan Highways Ordinance, 1959 (the Ordinance"). In exercise of the powers vested in the petitioners and with the object of fulfilling the mandate of the Ordinance, the petitioner No.2, namely, the Sub-Divisional Officer issued a notice dated 26-10-1986 which precipitated the filing of the declaratory suit by the respondents/plaintiffs. In this notice it was asserted that the respondents had encroached upon land belonging to the Provincial Government at Mile No. 175 on the Lahore-Sargodha-Mianwali Road and had constructed a wall in violation of the Ordinance. The notice, which is Exh.P.3 on the record, also directed the respondents/plaintiffs to remove the offending structure/wall within seven days, failing which action under the Ordinance was threatened against them. The Ordinance envisages the removal of any structure/wall after reasonable notice to the offending party. The relevant provisions are contained in section 6 of the Ordinance. The evidence including the Revenue Record shows that the land mentioned in the headnote of the plaint belongs to the respondents/plaintiffs and not the Province. It has been so held by the Courts below. This finding is not open to exception.
3. In the circumstances, the question of title is no longer disputed. The declaration of title sought by the respondents/plaintiffs has, therefore, been properly granted by the learned Courts below. The issue of removal of the wall, however, still remains a point of contention between the parties. Under the provisions of the Ordinance, the rules framed there under and the policy of the Highways Department made under the Ordinance, the power to restrict construction of any sort within the ribbon along both sides of the highway is vested in the Highways Department. In the circumstances, the Highways Department undeniably has the authority to demolish an encroachment and offending structure within the ribbon prescribed by law.
4. Here I may add that the notice (Exh.P.3) appears to have been issued without an actual demarcation of the land. This was necessary with the object of firstly ascertaining the area owned by the respondents/ plaintiffs as well as the area falling under the above mentioned road.
Secondly the width of the ribbon on both sides of the road also had to be determined on the basis of demarcation and in accordance with the Ordinance and the rules/policies framed there under.
So far as the demolition of the offending structure/wall is concerned, the respondents/ plaintiffs have no right to object to the same. Before me learned counsel for the respondents also stated that they would have no objection if a demarcation is made to ascertain the above noted facts. To date there appears to be no demarcation undertaken by the Highways Department with this object in view. Furthermore the respondents/plaintiffs are entitled to be associated with any demarcation which may be undertaken by the Highways Department.
5. In the foregoing circumstances, the prayer of the respondents/ plaintiffs to the extent of declaration of title sought by them is affirmed. However, the other prayers sought by the respondents cannot be allowed in view of the provisions of the Ordinance, noted above. The petitioners shall be entitled to undertake the demarcation for the object noted above. The respondents/plaintiffs shall be associated with such demarcation. Thereafter the petitioners shall be entitled to remove any structure raised by the respondents/plaintiffs over their land, which offends against the provisions of the Ordinance or any rules and policy framed there under. This revision petition, therefore; succeeds partially in the above terms. There will be no order as to costs.
S.A.K./P-14/L Revision partially accepted.