' SALEEM AKHTAR, 3.-The petitioner is a registered society constituted and set up by the residents of Hassan Colony inhabited by about 5,000 families. This settlement is in existence since 1965 to which water pipe line, sewerage, sui gas and Government dispensary have been provided. On promulgation of M. L.
0. 110 Zone 'C' the petitioner applied for regularisation of the Colony and declaring it as `Katchi Abadi'. It has been alleged that as its application was not being considered and in the meanwhile the petitioner apprehended that the settlement would be demolished it filed a Constitution Petition No, 915/80 which was disposed of on 19th March, 1981 with the following observation :- "As observed by us hereinabove that we are not inclined to hold that the Government is bound to issue a notification for declaring every Katchi Abadi as a Katchi Abadi for the purpose of the M. L.
0. 110, and that no vested right can be claimed by the unauthorised occupants of a Katchi Abadi till the time a Notification is issued and the other requirements of the M. L.
0. Are fulfilled. However, at the same time, we are of the view that the Government is to decide the question as to whether a particular Katchi Abadi is to be notified as a Katchi Abadi for the purpose of the M. L.
0. It is an admitted position that the competent authority under the M. L.
0. Has not adverted to this aspect in respect of the Katchi Abadi in question. We are, therefore, inclined to hold that the petitioners are entitled that their case may be considered by the competent authority and it is for the Government to decide as to whether the unauthorised occupation in question is to be regularised or not. We, therefore, direct the respondent No, 1 to consider the petitioner's case for the purpose of deciding as to whether a notification as per para. 2 of the M. L.
0. Is to be issued or not. The above decision can be made by the respondent No, 1 as early as possible, however, till the time the decision is made the petitioner's possession may not be disturbed. The above petition stands disposed of in the above terms with no order as to costs."
' Thereafter the petitioner claims to have made several representations but did not have any reply from the respondents. It is alleged that K. D. A. Which is not the relevant Authority under M. L.
0. 110 has purportedly decided to reject the petitioner's case but no intimation has been given to the petitioner. The petitioner apprehending demolition and ejectment filed the present petition on 26th December, 1982. On 27th December, 1982 comments were called from the respondents Nos. 1 and 4. On 1st January, 1983 the respondent No, 3 filed counter-affidavit and stated that the.
Government of Sind has decided that the petitioner occupation cannot be regularised and information has been communicated to the petitioner's president and its members. It was also stated that Hassan Colony is outside the jurisdiction of the Metropolitan Corporation. It has been alleged that "the occupants are unauthorised where unsocial commercial activities of selling smuggled goods, Charas and heroine takes place. The area is notoriously known Bara." The respondent No, 3 also filed photo copy of the letter, dated 21st March, 1981 addressed to Gbaza Khan which reads as follows :-{{TABLE TEXT}} ' KARACHI METROPOLITAN CORPORATION Phone No, 213393 Directorate of Karachi 219237 Abadies & Evaluation, M. R. Kiayani Road, Karachi.
Mr. Ghaza Khan, Hassan Colony, Super Highway-Bara Market, Karachi.
' No, DKA/26/SCH/3/ADUBH/450/81, dated 2Ist March, 1981, ' Sub : Regularisation of Hasan Colony under M.L.O. 110 Ref : Your application No, nil, dated nil.
' Reference your application on the subject addressed to Chief Martial Law Administrator and President of Pakistan and a copy endorsed to this office.
' As you were informed the matter was referred to the Board of Revenue and the Master Plan and Environmental Control Department K. D. A. For comments since the settlement is located within the boundaries of Scheme No,
33. The Deputy Commissioner (East), Karachi and the K. D. A. Master Plan Department has unanimously informed this department that Hasan Colony is an unauthorised settlement within Sector 1-A of Scheme No, 33 and in conflict with planned land use of this Scheme.
In light of these views, Hasan Colony in Sector 1-A Scheme No, 33 is not regular sable under M. L.
0. 110.
' These facts have already been communicated to the Headquarters Martial Law Administrator Zone 'C' who may have informed you.
' This is for your information please.
DIRECTOR, K A & E K.M.C.
' Copy for information to :
(1) Coordinator Katchi Abadis, Commissioner's Office, Karachi.
(2) Deputy Commissioner (East) with reference to letter No, 2651/80, dated 29th June, 1980.
(3) Chairman, District Council, Gulshan-e-Iqbal, Karachi with reference to letter No, DCK/19, dated 24th December, 1979.
(4) Section Officer VIII, H. I. P. L. G. & R. D. Department, Government of Sind, with reference to letter No, S.
0. VIII/KA-1.11 (c)/80, dated 12th June, 1980.
DIRECTOR, K A & E K.M.C.
' On 5th January, 1983 during the arguments Mr. A. Sattar Sheikh the earned A. A.-G. Placed on record a letter of the Government of Sind, acted 4th January, 1983 which is reproduced hereunder : No, So VIII/KA-II (5)/80 GOVERNMENT OF SIND HOUSING, TOWN PLANNING, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT Karachi, dated the 4th January 1983.
' The Advocate-General, Sind Karachi.
' Sub : C. P. 1055/82 filed by Anjumam Bahbood-e-Islam v. K. D. A.
' Taking into consideration the Judgment of the High Court in Writ Petition No, 915/80 and the various representations of unauthorised occupants of the Hasan Colony as "BARA", and the reports received from the Director, Katchi Abadis, Karachi and the Resolution of the Governing Body, K. D. A, the Government has decided that in view of anti-social commercial transactions carried out in this Colony and as this unauthorised settlement is within sector-I-A of Scheme No, 33 and is in conflict with planned land use of this Scheme. Besides, this Colony is outside the limits of K. M. C. Hence is not regularizable under the M. L.O. 110 as constituted by M. L.O. 183.
' In view of the circumstances this unauthorised settlement is not regularizable.
(Sd.)
(ALI SHER M. SHAIKH), DEPUTY SECRETARY (GENERAL)
' In the affidavit it was stated that this order was passed on 3rd January, 1983. A copy was supplied to the petitioner's Advocate and matter was adjourned to 6th January, 1983 when the matter was partly argued and petitioner filed application under Order VI, r. 17, C. P. C. Seeking amendment of the petition challenging the order, dated 3rd January, 1983. On 9th January, 1983 amendment was allowed and an amended petition was filed with the following prayers :- "(a) Declare the order, dated 13th January, 1983 as contrary to law and of no legal effect.
(b) Declare that the petitioner is entitled to have its case decided in accordance with law and to be declared as Katchi Abadi.
(c) Declare that the respondents are not entitled to demolish Hassan Colony and/or the constructions raised thereon.
(d) Direct the respondents not to take any action against the petitioner and/or the constructions raised in Hassan Colony.
(e) Such other or alternate order as may be deemed appropriate.
(f) Costs of the Petition."
' It may be mentioned that in the amended petition prayar 'A' has been added in which the date of the impugned order has been wrongly stated as 13th January, 1983 instead of 3rd January, 1983. Mr. Brohi the learned counsel for the petitioner has contended that the respondents have not complied with the, judgment of this Court, dated 19th March, 1981. In this regard the learned counsel has pointed out that reliance was placed by the respondents on the letter of 21st March, 1981 to show ' that decision has been taken in the matter. It was contended that on respondents admission Hassan Colony is not within the limits of Metropolitan Corporation therefore Karachi Metropolitan Corporation was not competent to decide the case under M. L.
0.
110. It was promulgated on 20th December, 1979 which provided that the Government may by notification declare any part of any Urban Area owned by Government or Local Authority which has been unauthorisedly occupied for residential purpose before 1st January, 1978 as Katchi Abadi.
Therefore, according to the petitioner Karachi Metropolitan Corporation, Director of Katchi Abadi could not decide the petitioner's case and therefore, it was not a compliance of the Court's order, dated 19th March, 1981. Perhaps realising this situation the respondent No, 1 hastened to pass order on 3rd January, 1983. It is not necessary to deal with this objection of the learned counsel for the petitioner as Mr. A. Sattar Shaikh the learned A. A,-G. Has taken up the stand that the respondent No, 1 has decided the petitioner's case on 3rd January, 1973 as communicated by its letter, dated 4th January, 1983. The respondents do not rely on letter, dated 2Ist March, 1981.
' It is pertinent to point out that on 4th September, 1982 M. L.O. 183 reconstituted M. L.O. 110 which provides that where an area owned by a Council, Government or Local Authority is unauthorisedly occupied for residential purposes before 1st January, 1978, and continues to be so, a Council by a resolution apply to the Government for its declaration as a Katchi Abadi. After such enquiry, as the Government deems fit, may declare by Notification such area to be a Katchi Abadi, This procedure is different from the one which was provided under M. L, O.
110. A further departure is noticed in M. L.O. Which provides that Government may be Notification declare any area or part thereof which is partly or wholly occupied unauthorisedly for commercial and industrial purpose before 1st January, 1978 and continues to be so occupied, as a Katchi Abadi.
Now the Government can also declare land unauthorisedly occupied for commercial and industrial purpose as a Katchi Abadi.
' The learned counsel for the petitioner has contended that the respondent No, 1 has decided the case on consideration which is alien to para. 4 (1) of M. L. 0,
183. In this regard the relevant provisions of M. L.O. 110 and M. L.O. 183 are reproduced hereunder :- "M. L.O. 110 8(v).-No Katchi Abadi, or a portion thereof situated on land which is-not safe from flood hazard or is required or reserved for roads, hospitals, schools, colleges, libraries, playground, garden, park, community centre, mosques, graveyard, railway, high tension lines or such other purposes and is otherwise in conflict with the planned land use of approved schemes shall be regularisable".
"M. L.O. 183: 4 (1). -Except as otherwsie 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, 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."
' A reading of these provisions makes it clear that earlier inter alia limitation was placed on regularization of an area as Katchi Abadi, which was "in conflict with the planned land use of approved schemes". Under para. 4 (1) of M. L.O. 183 this condition for purposes of declaring an area as Katchi Abadi has been deleted. It may however be noted that under para. 4 (1) of M. L.O. 183 the prohibition provided is subject to the direction of the Government. This discretion vested in the Government now- was missing in para. 8 (v) of M. L.O. 110.
The very concept of declaration of Katchi. Abadi in terms of M. L.O. 183 (Previously M. L.O. 110) proceeds on the fact that the land is in unauthorised occupation, the occupants have no vested right in land or A its declaration as Katchi Abadi and the Government has the sole and exclusive discretion to declare such a land as Katchi Abadi. The restriction provided by para. 4 (1) of M. L.O.
183 is in negative terms and is subject to the direction of the Government.
' One of the grounds for refusal by respondent No, 1 is that the unauthorised settlement is within sector 1.-A of Scheme 33 and is in conflict with the planned scheme. According to the learned counsel for the petitioner this ground cannot be pressed in service as such prohibition provided by M. L.O. 110 has been deleted from para 4(1) of M.L.O.
183. Mr. A. Sattar Sheikh the learned A. A.-G. Has contended that from the very beginning the respondent No, 1 has taken the stand that the area is not an urban area, it is being used for unlawful commercial activities against public policy and is a part of Scheme 33, and therefore, it could not be declared as Katchi Abadi under M. L.. 110 nor can it be so declared under M. L.O.
183. The declaration of an area as Katchi Abadi is in the sole discretion of the Government, Paragraph 4 (1) only prohibits in respect of areas reserved for particular purposes specified therein. M. L.O. 183 does not provide that areas not specified in paragraph 4 (1) shall be declared as Katchi Abadi. Paragraph 4 (1) lays down guiding principles and the declaration has been left entirely at the discretion of the Government which may take into consideration factors including public interest, planning and development.
' The admitted position is that the petitioner has no vested right and further that any right if at all, may arise from the Judgment, dated 19th March, 1981 giving direction to the respondent No, 1 to consider the petitioner's case for the purposes of deciding whether it can be declared as Katchi Abadi. This order has not placed any condition and therefore, the respondent No, 1 had to consider the case within the four corners of M. L.O. 110 if decided before 4th September, 1983 and thereafter under M. L.O.
183. The sole question for consideration is whether the judgment of the High Court has been complied with.
' The learned counsel for the petitioner has contended that the petitioner was entitled to a hearing before an order was passed by the respondent No, 1 but this opportunity was not afforded. In this regard reliance has been placed on PLD 1963 SC 564. PLD 1980 Lah. 561 and PLD 1961 S. C. 76 but in the facts and circumstances of the present case the dicta laid down in these judgments are not applicable for the present case. In the present case the petitioner has no locus stand!, it does not have any vested right and under the relevant M. L. O. The Government is not bound to hear any unauthorised occupant as a matter of right. If the matter was to be considered under M. L. O. 110 no one was entitled or authorise to make any petition or representation for declaration of an unauthorised occupied area as a `Katchi Abadi'. It was left to the sole discretion of the Government to make such declaration even without making any enquiry. Under M. L.O. 183 only a Council is authorised by resolution to apply for declaration of any area owned by it or local authority or Government which was unauthorisedly occupied before 1st January, 1978 for residential purposes to be Katchi Abadi. It is only such application that Government may after making such inquiry as it deems fit, declare it to Katchi Abadi. This procedure is not available for area unauthorisedl occupied for commercial and industrial purposes. In such cases no enquiry is needed. The petitioner, therefore, did not have either under M. L.O. 11 or M. L.O. 183 any locus standi to seek any declaration with regard to unauthorisedly occupied area. The petitioner has sought remedy by virtue of the judgment, dated 19th March, 1981. It may be noted that while disposing of the Petition No, 915/81 the Court had issued direction to the respondent No, I, but no direction was issued under which the respondent No, 1 was required to hear the petitioner before taking any decision. In our view the judgment of the Court has substantially been complied with.
' The petitioner cannot challenge the order of respondent No, 1, dated 3rd January, 1982 independent of the judgment, dated 19th March, 1981. Mr. A. Sattar Shaikh has contended that the petitioners have no locus standi to challenge the order and is not an aggrieved party. As discussed above, within the framework of M. L.O. 110 or M. L.O. 183 the petitioner cannot challenge the order.
' Mr. Abdul Sattar Sheikh and Mr. Qizalbash the learned counsel for the respondents have contended that the petitioner has been served with a notice under M. L.O. 130 and, therefore, it should first exhaust the remedy available under M. L.O. 130 and secondly that an action under M.
L.O. Cannot be challenged in this Court. As regards the first contention reference has been made to an unreported judgment of our Court in Islahi Al-Quds Committee v. Government of Sind and others C. P. D-271/81 where petition was dismissed in limine with the following observation :- "We asked Mr. Nawaz A. Jajja about the cause of his grievance, and he stated before us that the land in question was a Katchi Abadi, or, was at least such an Abadi, which should be declared a Katchi Abadi by the Government. The petitioners have not utilised their remedies. In any case there is nothing to indicate that the Government has agreed or declined to treat the land in question as a Katchi Abadi. What is more that, by paragraph 7 of Martial Law Order No, 130 of Zone 'C' the Government has appointed, or, has to appoint Committees to supervise the implementation of orders passed in pursuance of Martial Law Order No,
130. In such circumstances, the petitioners should have utilised that remedy in the first instance."
' Again in Sultan v. K. M. C. (C. P. 374/81) where notice under M. L.O. 130 was issued the following observation was made :- "The jurisdiction to interfere with the order passed under the M. L.O. Is completely barred by Article 15 (5) of the Provisional Constitution Order, 1981. In any case the petitioner has no right to plot in question."
In these premises we are inclined to hold that the Court has no jurisdiction in the matter. In this regard it may also be mentioned that the petitioner is challenging the order passed by the respondent No, 1 in exercise o ' power under M. L.O. 183, therefore, such a decision taken by the Government cannot be challenged in this Court. We have also noted that the petitioner is a society and as such it is not competent to file this petition. D Reference can be made to Korangi No, 2 Falahi Committee v. Karachi Development Authority (1). The petition is, therefore dismissed in limine.
(1) 1982 CLC 587