1. ' The petitioners have impugned the notice for removal of encroachment through the impugned order dated 16-3-2005 issued by the National Highway Authority whereby it was directed that the petitioner has made encroachment within the right of way of the restriction on the A ribbon development in respect of the National Highway 'within the contemplation of "National Highway and Strategic Road (Control) Rules, 1998, at 30-31 KM (south bound) Super Highway M-4. It appears that after the notice, the Court on 4-9-2008 appointed a Commissioner to carry out the inspection and report the distance between N.H.A. and the impugned construction. The inspection was carried out in presence of the petitioner and Mr. Rasool Bux Malah, Deputy Director, National Highway Authority. As regard New Frontier Hotel in Constitutional Petition No, 441 of 2005, it was reported that the distance between the hotel and the right of way taken from the centre point of the road between Karachi to Hyderabad was found to be 301 feet from the hotel. In Constitution Petition No, 442 of 2005 in respect of Quetta Saranan Pyala Hotel instead of Dara Khyber Landhi Kotal Hotel, Mr. Adnan states that since the tenancy changed, the name of the hotel has also changed, therefore, irrespective of such discrepancy the measurement which was found to be 247 feet between the hotel and the right of way, central point of the road. In Constitutional Petition No, 443 of 2005 the distance between the centre point of the road between Karachi to Hyderabad in respect of Jaddah Restaurant, was found to be 290 feet from the hotel.
2. ' Mr. Mian Khan learned D.A.G., Mr. Shafi Muhammad Memon, learned Additional A.G. And Mr. Manzoor Memon are present Mr. Shafi though states that they have serious doubts as to the right, title and entitlement of the petitioners who are claiming ownership in respect of the subject property. Since such controversy in pending before the Court and action if any against the persons who are found to be in exclusive possession or have right or title, can be examined by the authority concerned in their proper and respective jurisdiction and authority. The only controversy before this Court is whether the impugned construction is within the restricted limit or not.
3. ' In terms of Rule 3 of the Rules 1998, which reads as under:- "(3) Restriction on Ribbon Development.---(1) Subject to sub-rule (2) no persons shall, without the consent, in writing of the Authority, erect any building or structure on land:---
(i) within seventy metres from centre line of a National Highway and no industrial building within one hundred metres on either side of the centre line;
(ii) within two hundred and fifty metres from centre line of a motorway and no industrial building within one thousand metres on either side of the building line;
(iii) within one thousand metres on either side of centre line and all interchanges and service areas in a length of one kilometer beyond connecting point of ramps and loops with a motorway and feeding roads; and
(iv) within forty metres from centre line of the nearest carriageway in case of sections of a National Highway or strategic road which is situated in municipal limits."
4. ' Examining the present controversy in the context of the above Rules, it is noted that the impugned construction apparently does not fall within the restricted limit.
5. ' In view of the facts narrated by the petitioner and affirmed by the respondent, it appears that the in impugned notice dated 16-3-2005 issued by the respondent No, 2 is unwarranted under the facts and circumstances as the subject property does not fall within the prescribed limits/boundaries in terms of Rule 3 of National Highway and Strategic Road (Control) Rules, 1998.
6. However, this will not in any manner create any right title or otherwise, in the petitioners in respect of subject property and can be subjected to action by the relevant authorities under the relevant law in this regard. The impugned notice issued by the National Highway Authority is hereby cancelled.
7. ' The petition is disposed of in the above terms along with listed application.