' The applicant moved this miscellaneous application against the non-applicants, seeking direction that non-applicants may refrain from interfering in the business of the applicant by sealing his shops.
2. It was alleged that the applicant is owner in possession of two shops situate at the College Road in Dadyal City, where he was carrying on woodworks and repairs of vehicles. Non-applicants Nos.1 and 2, it was alleged, at the instance of non-applicant No.3, sealed his shops and also ordered him to refrain from reopening the shops otherwise he shall be dealt with dire consequences and shall be sent to the lock-up. According to the applicant, the action of sealing of the shops, interference in his business and threatening him to send him to the lockup, were violative of the basic rights of the applicant and without lawful jurisdiction.
2-A. It was explained that the applicant submitted two separate applications for issuing of copies of the notice and order of non-applicants Nos. 1 and 2 but he was denied the same. The original applications for the copies were appended with the application. Non-applicant No.1, in his detailed reply, gave the details of the case and denied the allegations ascribed to him by the applicant in the application. The other non-applicants also denied the allegations, orally.
3. The fact of the matter is that the proceedings were initiated on the application of Principal, Government Degree College, Dadyal wherein it was stated that the College Road was obstructed by the owners of the Motor Workshops situate on the road. The encroachment on the road created hindrance in the passage of the students, as such the workshop owners may be directed to remove the encroachment forthwith. The application was sent to the S.H.O. Dadyal who recorded the statements of the workshop owners on January 20, 1991. The workshop owners denied the allegation of encroachment. The S.H.O., on the basis of the aforesaid statements of the workshop owners, informed the non-applicant No.1 that in future no encroachment shall be made on the road in question. Similar notices were issued by the Chairman, Municipal Committee, Dadyal, whereby workshop owners were asked to remove the encroachment and shift their workshops to some other place. The workshop owners, in their written statements, assured the Municipal Committee that they would not make any encroachment on the road and on making alternative arrangement, they would shift their workshops. On 7th March, a notice was issued to the applicant along with two other workshop-owners, to show cause as to why they have failed to shift their workshops from the College Road. Second notice was issued on 18th March. Likewise notices were issued by the Municipal Committee on 27th and 28th March.
4. It appears from the aforesaid action of non-applicants Nos.2 and 3 that they were taking proceedings in the light of the provisions of section 30 of Schedule V of the Azad Jammu and Kashmir Local Government Ordinance, Under section 30, it was postulated that no person shall make any encroachment, movable or immovable on an open space or land vesting in or managed or controlled by a Municipal Committee, on or over or under a street, road, graveyard, within the municipal limits or a drain except under a licence granted by the Municipal Committee.
Subsection (2) empowered the Municipal Committee to remove the encroachment mentioned in subsection (1), with such force as may be necessary. The objections filed by non-applicant also elucidated the points to bring the case within the purview of the aforesaid provisions of law.
5. The case of the applicant, as described in his application, primarily is that he is owner of two shops at the College Road where he was carrying on the work of wood-carving and motor repairing and that non-applicants were interfering in his business, without lawful authority and in violation of the basic rights.
6. It is well accepted that a citizen is entitled to carry on business free from interference by any authority unless the business was designed or controlled by the competent authority by virtue of law. In this view of the matter, ordinarily, the non-applicants were not empowered to interfere in the business carried on by the applicant. This was more so as the applicant was allotted the site of the shops by the Allotment Committee, as that area was reserved for commercial purposes. Thus the premises constructed by the applicant were primarily meant for business. It was, no doubt, situate within the commercial area of Dadyal city. Therefore, the applicant could not be deprived of carrying on business of his choice In his premises.
7. The provisions of section 30 referred to above, apply to an encroachment made on an open space or land vested in the Municipal Committee or a street, road and graveyard, within the municipal limits or a drain. If it was the case of the non-applicants that the applicant was liable for making encroachment on the road or street, as the case may be, within the municipal limits, the non-applicants were empowered to direct the defaulter to remove the encroachment. On his failure to do so, the Municipal Committee was empowered to remove the encroachment with necessary force. But here, it appears from the language of the notices mentioned above, that the applicant was directed to shift his workshop to some other place by closing his shops. This, by no stretch of imagination, was permissible under the provisions of section 30 of Schedule V of the Azad Jammu and Kashmir Local Government Ordinance. It was, therefore, a clear case of transgression of authority.
8. The term 'encroachment" has been defined in Black's Law Dictionary as: "An illegal intrusion in a highway or navigable river, with or without obstruction. An encroachment upon a street or highway is a fixture, such as a wall or fence, which illegally intrudes into or invades the highway or encloses a portion of it, diminishing its width or area but without closing it to public travel."
In view of the aforesaid meaning and scope of the term "encroachment, the allegation of encroachment ascribed to the applicant, does not fall within its ambit. The case of the non- applicants is that the applicant parked vehicles in front of his shops and carried on the work of welding and other repairs. Mere parking of vehicles in front of the shop is not encroachment as the road or street is partly used for transport parking. Thus, unless the action of the applicant fell within the mischief of the aforesaid meaning of the term "encroachment" used in section 30 of Schedule V of the Local Government Ordinance, no penal action like the one proposed under subsection (2) or subsection (3) could be enforced by the Municipal committee.
9. This brings us to the conclusion that the non-applicants were not empowered to force the applicant to shift his workshop from his own premises, as to carry on the business of Kharaad and Motor Workshop within his own premises and use of road in front of shops for temporary parking, was not an act of encroachment. The application is disposed of accordingly.