' AJMAL MIAN, J.-(1) Since in the above two petitions common questions of law are involved, we intend to dispose of the same by this common judgment.
(a) Constitutional Petition No, D-240/1981.---The brief facts leading to the filing of the above petition are that petitioner No, I filed the above petition seeking the following reliefs :- "The petitioners, therefore, pray that this Hon'ble Court may be pleased to order :-
(i) Declaring that the acts of the respondents 2 and 3, resulting in reduction or tending to reduce the original width of 30 feet or so at any location of Haji Fakir Mohammad Road, Hameedabad, Moosa Lane, Lyari quarters, Karachi-2, and for omission of these respondents 2 and 3 to maintain such original width of the said road are mala fide, unauthorized, in excess of the statutory authority and in violation of the statutory obligations.
(ii) Declaring that the leases dated 20th September, 1980 and Addenda lease dated 18th October, 1980 (Annexure G-1 and 0-2) issued by the respondent 2 to the respondent 4 with respect to his Plot No, 1910 to the extent of the land forming the part of the original 30 feet width of the Haji Fakir Mohammad Road, Hameedabad, Moosa Lane, Lyari quarters, Karachi, is mala fide, in excess of the statutory authority and in violation of the statutory directions.
(iii) Declaring that the approval plan of the building granted by the respondent 3 in favour of the respondent 4 with respect to the said Plot No, 1910 expending upon Haji Fakir Mohammad Road, Hameedabad, Moosa Lane, Lyari quarters, Karachi, is mala fide in excess of the statutory authority and in violation of the statutory directions.
(iv) Directing the respondent. 2 and 3 to recall, rescind and revoke the said impugned lease and building approval plan regarding the said Plot No, 1910, Haji Fakir Mohammad Road, Hameedabad Moosa Lane, Lyari quarters, Karachi, in order to bring the same in conformity with the said statutory rules and directions.
(v) Cost of the petition.
(vi) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case."
' Alongwith the petition she also filed: an application under Order 1, rule 8, C. P. C. On which publication of a notice was ordered. Upon the publication of the aforesaid notice, petitioners Nos. 2 to 27 have become petitioners and therefore, an amended petition was filed. It has been averred in the petition that Haji Fakir Mohammad Road (hereinafter referred to as the road) which is situated since pre-partition days has width of 30 feet. And that respondent No, 4, who is the occupant of a plot bearing Excise and Taxation Property Unit No, K.34-4S-32 (Old City Survey No, LY-7- 46-K-3/81) was in possession of land, measuring 6Q square yards. It has been further averred that respondent No, 4, who is an official of the K. M. C. And whose father was a Chief Assessor and Collector (now retired) attempted to get the said width of 30 feet reduced by abusing his official powers and influence with the K. M. C. It has also been averred that the above respondent by manipulation got the width reduced and obtained a total area of 120 square yards in place of 60 square yards by encroaching upon the width of the road. It has been .Further averred that on the representation of the residents of the locality the above respondent was served with a notice by respondent No, 2 for stopping the construction. Thereupon he filed a suit in the Court of Xlth Civil Judge, which was withdrawn.
' Respondent No, 2 has filed a counter-affidavit, in which the averments contained in the petition have been denied and it has been averred that according to the approved Layout Plan the width of the road is 15 feet.
' Respondent No, 4 has also filed a counter-affidavit denying the various averments contained in the petition. It has been inter alia averred that the aforesaid respondent had paid occupancy value of 163 square yards as far back as on 7th August, 1978. It has also been averred that after the filing of the suit by the aforesaid respondent, the K. M. C. Executed the lease in his favour, and, therefore, the suit was not prosecuted. It has also been averred that the K. M. C. Has not only granted lease in his favour but also to the occupants of the other plots adjacent of near to the aforesaid respondent's plot.
(b). Constitutional Petition No, D-872/1981.-In this petition the petitioner has also claimed identical reliefs but the necessity of filing of the above petition arose, when respondent No, 4 namely, Dost Muhammad son of Hajee Usman also started construction on a portion of the road. Alongwith the above petition an application under Order I, rule 8, C. R. C. Was filed which was not granted. In the above petition also more or less similar averments have been made which have been made in the first above petition.
' Respondent No, 4 in his countera ffidavit has averred that the width of the road, according to the Master Plan is 15 feet and that he was the lessee of the land, upon which he was raising the construction.
3. (a) Messrs K. M. Bhutto and Ismail Padhiar in support of the above petitions have urged the following points : (0 That under the Sind Local Government Ordinance, 1979 read with Article of Schedule II, respondent No, 2 is obliged to provide and maintain such public streets and other means of public communication as may be necessary for the comfort and convenience of the inhabitants of the local area and of the visitors thereto and, therefore, respondent No, 2 by granting lease in favour of respondent No, 4 in respect of a portion of the road has violated the above rule.
(ii) Under rule 2 of the Local Government Rules, a Municipal Committee is obliged to invite objections to the proposal for the layout or re-layout of streets and public streets, and, therefore, respondent No, 2 without complying with the above rule could not have reduced the width of the road.
(b) On the other hand Messrs Muslim Naqvi Adil Khatri and Muhammad Afzal Advocates have contended as follows :- ( i) That the petitioners have not come with clean hands inasmuch as the width in front of the petitioners' houses is less than the width in front of respondents No, 4's buildings.
(ii) That in the Lyari Layout the approved width of the road is 15 feet since 1970 which was within the knowledge of the petitioners and, therefore, the petitions suffer from lathes.
(iii) That the petitioners have no legal right to sustain the above petitions as they are encroaching over the land in their occupation, and, therefore, petitions are not competent.
3. By our order dated 8th March, 1982, we appointed the Nazir of this Court as the Commissioner for the purpose of submitting his report as to the width of the road at the various points of the road and also particularly the width of the road in front of petitioner No, 1 in Petition No, D-240/1981 and petitioner in the other petition (C. P. No, D-872/ 1981). In compliance of the above order, the Nazir submitted his report dated 22nd March, 1982 alongwith a rough sketch of the road indicating the width at the various points. From the report and the sketch submitted by the Nazir, it seems that the width in front of the house of petitioner No, 1 in Constitution Petition No, 240/1981 is only 15-2 feet, whereas the width in front of the petitioner's house in the above other petition is only 8-10 feet. We have also noticed that there is variation in the width of the road from 30-10 feet to a out 8 feet. It may be observed that the width o the road in front of the building of respondent No, 4 in.
Constitution Petition No, D-240/1981 is 23-8 feet, whereas in front of respondent No, 4's building in the other petition the width is 22.10 feet. In other words the width of the road in front of the two private respondents concerned in the above two petitions is more, and, therefore, the petitioners having committed encroachment on the road themselves cannot maintain writ petitions and they have not come with clean hands. However, it was submitted by Mr. K. B. Bhutto that since in Constitution Petition No, D-240/ 1981 after the publication of a notice under Order I, rule 8, C. P. C. 26 persons have become petitioners as petitioners Nos. 2 to 27, the fact that the width in front of petitioner No, 1 in the said petition is only 12-15 feet will not prejudice the other petitioners. It may be observed that petitioner No,.1 was the person, who moved the aforesaid petition and, therefore, the bona fide of the petition is to be judged on the basis as to who moved the petition. Furthermore, even in front of the other petitioners, according to the objections filed by respondent No, 4 in Constitution Petition No, D-240/1981, the width is less than the width in front of his building, except in case of the two petitioners i. e. Petitioners Nos. 13 and 16, in front of whose houses at two points the width is above 23-8 feet and 29-8 feet. It may also be pointed out that from the above Nazir's sketch, it also seems that from the building of respondent No, 4's in Constitution Petition No, 872/1981 onwards on western side the width of the road is between 21-7 feet to 8-10 feet.
4. It is an admitted position that the inhabitants of this road are very old inhabitants and these encroachments were made from time to time even prior to the establishment of Pakistan.
Furthermore, all the petitioners in the two petitions are themselves encroachers and none of them holds any lease from the K. M. C. In our view, in the circumstances of the instant case, it will not be just and proper to grant the petitions. We, therefore, dismiss the petitions with no order as to costs.