' IRFAN SAADAT KHAN, J.---This petition has been filed with the following prayers:-- "(i) Direct the official respondents not to demolish/dispossess the petitioners from their old constructed houses situated in Muhammadi Colony, Block No,17, Gulshan-e-Iqbal, C.O.D. Hills, near Karachi Water & Sewerage Board, Filter Plant, Staff Colony, Karachi.
(ii) Direct respondents Nos.1, 2, 3 and 4 to cancel illegal and void Allotment Order dated 24-3-2011 from the name of private respondent No, 7 and also cancel further proposal for allotment out of said colony.
(iii) To cancel Allotment order dated 13-2-2012 in respect of 04-00 acres in Naclass No 118, (Naclass No,177) Deh Okewari from the name of respondent No,12.
(iv) Direct respondent No,9 to finalize the request of the petitioners for regularization of possession in accordance with the section 19, subsections (1), (2), (3) and (4) of Sindh Katchi Abadi Act, 1987 OR
(v) Direct respondents Nos.1 to 4 to grant lease hold right to the occupants/inhabitants of built up houses of the said colony of the petitioners in accordance with the statement of Conditions notified on 21-11-2008.
(vi) Restrain the respondents Nos.3 and 4 not to effect mutation in Record of Rights in respect of 04-00 acres in favour of respondent No,12.
(vii) Restrain the official respondents from harassment, humiliation, any sort of maltreatment as well as pressurizing the petitioners and except due process of law and any clandestine modus operandi to annoy the petitioners.
(viii) Grant any further or better relief that this Hon'ble Court may deem just and proper in the facts and circumstances of the case".
2. Briefly stated the facts of the case are that the petitioners claim themselves to be the residents of Muhammadi Colony, situated in Block 17, Gulshan-e-Iqbal, COD Hills, near Filter Plant, Staff Colony, Karachi since 1970. It is further claimed that the petitioners were employees of Karachi Joint Water Board, which is now Karachi Water and Sewerage Board (KWSB). The petitioners constructed some 50 katcha-pacca houses and are living therein with their families. It is also claimed that the petitioners are settled therein with the permission of the then Karachi Development Authority, now KWSB. The said area was acquired KWSB in the year 1957 through a permanent grant admeasuring 191.14 acres in Na-Class 118, Deh 'Okiwari, by virtue of allotment order No, L-8/52/353 of 1957 dated 3-5-1957, issued by Collector of Karachi, who is predecessor-in-interest of respondent No,3. It is claimed that in 1970 the petitioners approached respondent No,8 for regularization but no response was given by the said respondent. In the year 1995 also a join t representation was made by the petitioners to the respondent No,8 for regularization of their area but no action was taken.
Subsequently, respondent No, 12 claimed that the said area belongs to them and approached respondent No,9 for removal of the petitioners from the said area. Respondent 8, with the connivance of respondents 3, 4, 5 and 12, approached the petitioners with an intention to demolish the houses of the petitioners. The petitioners came to know that the Chief Minister Sindh has regularized certain katchi abadies of different areas, thereafter, they also moved an application to the Chief Minister Sindh for regularization of their colony. However, when the said application was still pending, the respondent No,2 demolished certain houses of the petitioners with the help of respondents Nos. 5 and 6 and handed over the area to respondent No,7, who immediately constructed a boundary wall covering an area of 1000 sq. Yards under the supervision of respondents Nos. 3, 4, 5 and 6. The respondent No, 12 then moved an application to the respondent No,3, dated May 2, 2012, for enrolment in the land records of rights. Thereafter the instant petition was filed as according to the petitioners they were left with no alternative but to file the instant petition.
3. Mr. Abdul Wahid Wyne and Mr. Abdul Jabbar Mirza, learned counsel for the petitioners, stated that the plot were allotted to the petitioners in the year 1969 by the concerned authorities and the respondents were not justified in either demolishing the houses of some of the petitioners or labelling the petitioners as encroachers or illegally taking over the possession of these houses from the petitioners. It was further stated that the allotment order prepared by respondent No, 12 on 13- 2-2012 in respect of four acres land in the said colony is illegal and is a result of collusion between the respondent No,12 and the other official respondents. They further stated that as the petitioners are residing in the area since quite some time a vested and fundamental right has accrued in their favour which could not be taken away by the respondents. The learned counsel further submitted that the action of the respondents is against the law and in violation of Articles 4, 25 and 26 of the Constitution as the same action is detrimental to the life and liberty and property of the petitioners and the respondents have no right to demolish the houses of the petitioners and to trespass in the area without having legal authority. The learned counsel also submitted that a number of applications were given by the petitioners to the respondents but instead of considering those applications, the official respondents sanctioned a portion of the area to respondent No,12 without any legal and lawful justification. They, therefore, prayed that since the petitioners are old residents of the area the same may be leased in the names of the petitioners and the respondents may be directed to compensate some of the petitioners whose houses have been damaged/demolished.
They further pray that the allotment order passed in favour of respondent No,12 may also be cancelled. Learned counsel, in support of their arguments, relied upon the following cases:--
(1) Mobin Rafique and another v. Rashid Ahmed and 2 others (PLD 2012 Sindh 449)
(2) Muhammad Mazhar Iqbal v. Vth Additional District Judge (2010 MLD 439).
4. Mr. Salman Hamid, learned counsel for the respondent No,12, submitted that a perusal of the petition would reveal that not a single document showing ownership of the petitioners has been filed. He states that no doubt the petitioners were paid employees of the then Karachi Joint Water Board Authority and were temporarily accommodated by the said Board but no vested or fundamental right has accrued in their favour. He states that the petitioners are usurper and encroachers of the area and when they were asked to vacate their katcha pacca houses, instead of leaving their houses they created law and order situation in the area. He submits that the petitioners themselves have admitted that they have constructed katcha pacca houses meaning thereby that they have no legal right over those houses and were only temporarily accommodated by the said erstwhile board. He states that even today, the learned counsel for the petitioners has not been able to furnish a single document to prove ownership of the petitioners of the area and has simply submitted a letter given by the erstwhile Board whereby the petitioners were given temporary permission as Filter Plant staff in this behalf. He states that perusal of Annexure A would clearly reveal that in the said letter it has been mentioned that the said plots given to them with the conditions that these plots are neither for sale nor for rental or commercial use and can only be used by them and their family members which clearly indicates that the said plots were allotted to Filter Plant staff for a limited time. He further states that the petitioners took advantage of the situation and constructed their houses but when they were asked by their own Department to vacate the same, they created hurdles which forced the other respondents to take stern action against them. He states that an application was moved in the year 1995 by the Muhammadi Colony Welfare Committee and a close examination of this letter would reveal that the persons who initially were allotted the area are available their or have either sold away their houses or given their houses to some other persons which they were not legally competent to do and are not even party to this petition.
5. Mr. Ahmed Pirzada, learned counsel for respondents Nos. 1, 2, 3 and 4 while adopting the arguments of Mr.. Salman Hamid, advocate, stated that the petition is not maintainable as the petitioners have come to the Court with unclean hands and are encroachers of the area as no legal and proper leasehold rights were ever given to them but were only given a temporary permission. He states that the provisions of section 19 of the Sindh Katchi Abadi Act, 1987 are quite clear and a perusal of this section clearly reveals that parameters of this section have not been complied with by the said petitioners. He further submitted that some of the petitioners approached the civil courts for claiming their rights and as per his information and belief these civil suits have been dismissed and no appeal against those orders, according to him, has been filed.
Lie submits that some suits may be pending. He has also attached along with his counter affidavit copies of Suit No, 825/11 and Suit No, 217/12. He further submitted that a perusal of the record would reveal that the petitioners approached the respondent No,9 for regularization which was turned down. He states that even the petitioners approached the Chief Minister Sindh also but to no avail.
He further submitted that the area was allotted to respondents Nos. 7 and 12 after fulfilling all the legal and codal formalities and since the petitioners do not have any document to support their claim this petition is devoid of any merit and is liable to be dismissed.
6. Mr. Jamil Ahmed, learned counsel for respondent No,9, while adopting the arguments of Mr. Salman Hamid and Mr. Ahmed Pirzada, also stated that the said area was not regularized as per Sindh Katchi Abadi Act since the area comes under the category of section 4 of Regulations of 1993. He further stated that neither NOC nor joint demarcation has been made, which is the mandatory requirements for regularization of a Katchi Abadi. He states that the assertion of the petitioners that the houses of the petitioners were demolished by the land grabbers is totally incorrect as the same were demolished as these were not regularized. He also stated that no matter regarding regularization of the area at this point of time is pending before respondent No,9.
7. Mr. Saifullah, AAG appearing for respondents 5, 6, 10 and 13, Mr. Qazi Asif, learned counsel for respondent No,8 and Mr. Sultan Ahmed, counsel respondents 11 and 14 have adopted the arguments of above learned counsel. Mr. Sultan Ahmed, however, further argued that annexure A reveals that a permission simplicitor was given to the petitioners and no leasehold rights or ownership rights were given to them. He, therefore, stated that this petition is not maintainable. He relied on the decision given by the Hon'ble Supreme Court of Pakistan in the case Mir Zaman v. Mst.
Shada and others (2000 SCMR 1699).
8. We have heard the learned counsel for the parties and have perused the record and the case- law relied upon.
9. What has been revealed from the documents furnished by the learned counsel for the petitioners and the respondents is that an area of 191.14 acres of Government land from Naclass No,118, Deh Okewari Karachi was transferred to Karachi Joint Water Board for their new Gravity Canal Scheme on 3rd May, 1957. The respondent No,12 claimed that they were allotted a total area of 228.27 acres, which included the said 191.14 acres allotted to the defendants/Karachi Water Board. The perusal of the record further reveals that some plots were allotted by the Competent Authority in the said area to some of its employees for residential purposes only with certain conditions. The relevant part of one such allotment letter, dated April, 1969, is reproduced hereunder:-- "With reference to your application No, 234 dated 17-3-1969. It is stated that under the orders of the Competent Authority (sic) it is hereby informed you that the above mentioned plot i,e, attached to D-4, Garage, COD Hills, Filter Plant, Staff Colony, may be allotted for residential purpose to you and your family, with these terms and conditions:
(1) That the said plot is not for sale.
(2) That the said plot cannot be used for rental purpose.
(3) That the said plot can also be not used for commercial purpose.
(4) That the said plot can only be used by you and your family." (Underline ours)
10. Learned counsel for the petitioners vehemently argued that the petitioners are encroachers and that the allotments were for temporary purposes only as the allottees were in fact licensees only.
11. First we will take the plea of the respondents that the petitioners are encroachers. In all there are 44 petitioners before us. It is not clear as to how many out of these are the original allottees and how many of these are widows/sons/daughters i,e, family of the original allottees and , how many of these are those who have either purchased a house from the original allottee or have encroached on the land. In view of the admitted position that some employees of the KWSB were allotted plots for residential purposes by the Competent Authorities, it cannot be said that those persons or their family members, who are residing in the house constructed by them on the allotted plots are encroachers, rather, they are licensees.
12. However, the next question which arises for consideration is whether they are mere licensees or they are licensees coupled with interest. It is an admitted position that the Competent Authority only allotted plots to its employees and the employees were required to raise construction thereon in order to make a place of dwelling for them and their families. This could not be achieved without incurring substantial expenses. Thus, the licensee, acting upon the license, has executed a work of permanent nature and incurred expenses thereon. Therefore, it cannot be said that the allottees were mere licensees, rather they were licensees coupled with interest as they have made some investment in raising their respective houses on the allotted plots. It is true that no leasehold rights were given to the petitioner (i,e, those petitioners who were actually allotted the plots or their family members now residing in the houses constructed on the plots), however, it can also not be denied that the Competent Authority itself called upon the allottees to raise construction on the plots by allotting the plots to those low paid employees.
13. It is seen from the record that apart from this permission letter, no other document is available with the petitioners to claim ownership in respect of the said plots/houses occupied by them. It is also seen that a number of petitioners approached the Civil Courts some of which cases are still pending but most of the suits have been dismissed on the ground that the said petitioners have failed to prove their ownership in respect of the said plots. However, as discussed above, although the petitioners who have been validly allotted plots by the Competent Authority and who have incurred expenses by raising their respective houses thereon, cannot be termed as owners of the plots but at least, as observed above, are holders of license coupled with interest. In case houses were built by the competent authority and the same were allotted to the such petitioners, then the competent authority would have been within its right to have asked the occupants to vacate the same whether they were inducted in such houses as licensees or as tenants of the competent authority.
14. It has also been argued that the petitioners have also approached the Chief Minister for regularization of their Colony as Katchi Abadi However, it is an admitted position that no action whatsoever has been taken by the Chief Minister in respect of their application and the said colony has not been considered as a Katchi Abadi. Thus, it is not denied that such application is still pending before the Chief Minister.
15. It is also evident from the record that claim made by the respondents Nos.12 and 7 regarding ownership of the area is substantiated with material evidences and has also been affirmed by the counsel representing the concerned Government Departments.
16. Mr. Jamil Ahmed, learned counsel for respondent No,9, has argued that no area which is, inter alia, reserved for water supply, can be declared as Katchi Abadi in view of section 9 of the Katchi Abadi Act, 1987. In order to appreciate the submission in a better perspective, it would be expedient if the provisions of section 19 of the Act are reproduced herein-below:-- "19. Declaration of Katchi Abadi.---(1) Subject to subsections (2), (3) and (4) and directions of Governments, if any, the Authority may, after such enquiry as deemed fit, by notification in the official Gazette, declare any area or part thereof which is partially or wholly occupied unauthorized before the 23rd day of March, 1985 and continues to be occupied to be Katchi Abadi.
(2) No area which is owned by the Federal Government shall be declared as Katchi Abadi without obtaining consent of the Federal Government.
(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 Katcha 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.
(4) Except as otherwise directed by Government, no area which is reserved for the purposes of roads, streets, water supply arrangements, sewerage or other conservancy arrangements hospitals, schools, colleges, libraries, playgrounds, gardens, mosques, graveyards, railways, high tension lines, or such other purposes or is not safe from flood hazard, shall be declared to be a Katchi Abadi.
(5) Any area declared to be a Katcha Abadi shall, subject to the agreement referred to in subsection (3), vest in the Authority.
(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 therefor 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 in 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.
(7) Government may appoint any officer in BS-17 or 18 as Tribunal.
(8) Government may, by notification in the official Gazettee, establish a Tribunal and specify the area in which such Tribunal shall exercise its jurisdiction".
17. Perusal of the above section would reveal that no area which is reserved for the purposes of roads, streets, water supply arrangements, sewerage or other conservancy arrangements, hospitals, schools, colleges, libraries, playgrounds, gardens, mosques, graveyards, railways, high tension lines, or such other purposes or is not safe from flood hazard, shall be declared to be a Katchi Abadi. There is no cavil to the proposition that areas reserved for the above mentioned purposes cannot be declared as Katchi Abadi, however, it cannot be said that the said area was reserved for water supply arrangements as the same is now allotted to the officers of KDA for residential purposes.
18. The counsel representing respondent No,12 in his counter affidavit has also attached copy of extract of the Revenue record. It is also stated by the learned counsel representing respondents Nos.11 and 14 that some of the persons to whom the plots were given have illegally sold away the same. It is further stated that the said plots were given to low categories staff i,e, drivers, gardeners, cooks, peons etc. Who were never given the ownership rights. Counsel for respondents Nos.11 and 14 has also attached a certificate duly signed by the Mukhtiarkar depicting the complete picture in this regard. It has been stated by the learned counsel representing the respondents Nos.11 and 14 that the said area belongs to respondent No,12 and have also attached relevant documents. In this regard it would suffice to say that the plots were allotted to the employees of KWSB in the year 1969-70 and have not been resumed by any authority till date. Therefore, before allotting the said area to any other person/society etc. It would be necessary that the earlier allotment is properly cancelled and the land is taken back by the Competent Authority. For this purpose it is necessary that a proper notice is issued to the occupants by the Competent Authority and only thereafter an action is taken in accordance with law. The allotment of the land in favour of respondent No,8 or 12 is hit by the rule of natural of justice as no such notice was issued to the petitioners/original allottees.
19. During the course of arguments, it was also submitted that some of the original allottees have sold their houses to other persons. It may be mentioned that the plots were allotted to its employees by the Competent Authority. It is seen that there are two other groups of persons also i,e, the persons who have purchased the plots from the original allottees and the persons who have occupied the areas and are living there. So far as the first set is concerned, since the original allottees have no legal authority to sell the plots allotted to them, the sale made in this regard to these persons is illegal, hence, in our view, these persons are liable to be displaced from the said area in accordance with law. However, these persons may seek their remedy from the competent Court of law, if deemed necessary, against the original allottees of the plots from whom they have purchased the said houses. So far as the second category is concerned they, without any iota of doubt, are the encroachers and are liable to be removed in accordance with law.
20. Since the plots have been allotted to some of the petitioners, who are the original allottees and have raised construction upon the said plots, they in our view have been taken by surprise, as action to remove them from the said plots have been initiated by the respondents without informing them about the decision taken by the respondent No,8 of allotting the said area to the respondent No,12. The respondent No,8, in our view, should have at least informed the original allottees about the decision taken by them to enable the original allottees to make some alternative arrangement, which admittedly has not been done by the respondent No,8, as no document, whatsoever, is available on the record to prove that prior to allotting the area to the respondent No,12 any notice was issued by the respondent No,8 to, the original allottees. We, therefore, are of the view that since on the plots allotted to the original allottees they have raised some construction from their meager earnings, they are liable to be compensated by the respondent No,8 in this behalf. Since there is no cavil to the proposition that the original allottees, to whom the respondent No,8 with the connivance of other respondents are adamant to remove, cannot ask to be compensated with regard to the price of land, since admittedly the land do not belong to the original allottees, as the same belongs to the respondent No,8 and they are only entitled for compensation in respect of whatever construction has been raised by them. We, in order to resolve the dispute also with regard to the amount of compensation, are of the view that the same can also be redressed by compensating the original allottees by paying them the amount of cost of construction as per the current government rates of the cost of construction, as per the designated category.
21. We therefore in the light of what has been observed above, dispose of this petition in the following terms:
(a) Those petitioners who are the original allottees or family of the original allottees are to be treated as holders of license coupled with interest and such petitioners could not be displaced without due compensation as mentioned above.
(b) Those petitioners who are the original allottees or family of the original allottees who have sold their houses to any other person and are not living in the houses personally at present have violated the terms of the allotment and thus have no right to claim even as a licensee coupled with interest.
(c) Those petitioners who have purchased a house of any allottee/family member of allottee and those persons who have raised any construction on a plot which was not allotted to them are encroachers and are to be dealt with in accordance with law.