1. ' SALAHUDDIN MIRZA, J.--- After hearing learned counsel of the parties on 3-9-1991 we had by a short order allowed this petition in the following terms:- "For reasons to be dictated separately, the order of eviction passed/executed by respondent No,3 on 14-2-1991 is declared as without lawful authority and of no legal effect. Cost of the petition will be borne by respondent No,3."
2. ' The following are the reasons in support of the short order:-- ' Petitioners claim that they had been inducted as tenants by the predecessor-in-interest of respondent No,1 (his mother Mst. Fatima Bai) around 1947-48 in respect of their business premises which lie on the road side by the wall of the main shop in which a partnership firm Messrs Hindustan Sanitary and Drainage Works is carrying on business since before partition and is occupying the said shop as a tenant from the days of late Mst. Fatima Bai. A lot of litigation is going on between the parties. First of all respondent No,1 instituted ejectment petition (Rent Case No, 6 of 1972) against Messrs Hindustan Sanitary and Drainage Works on various grounds and thereafter Messrs Hindustan Sanitary and Drainage Works filed a civil suit in the High Court (Suit No,142 of 1973) against their landlord respondent No,1 and the petitioners (and one Muhammad Hashim whose successor-in-interest is petitioner No,4 Ajmal Hussain) in which the main reliefs sought were a declaration that (a) the doors and show-windows in respect of which the petitioners and the said Muhammad Hashim were the tenants of the landlord (respondent No,1) were actually the part and parcel of their main shop and Messrs Hindustan Sanitary and Drainage Works is entitled to the enjoyment and possession of these doors and show-windows, that (b) the landlord could not create any tenancy in respect of these doors and show-windows in favour of the petitioners and the said Muhammad Hashim (who were impleaded as defendants Nos.2 to 7) and that (c) the tenancy rights of these defendants Nos. 2 to 7 were an obstruction and a nuisance and Messrs Hindustan Sanitary and Drainage Works was entitled to remove these obstructions and nuisance.
3. The suit was contested by all the defendants and defendant No,1 (i,e, respondent No,1 Shabbir Burhani, the landlord) in his separate written statement conceded the title of the petitioners and of Muhammad Hashim as a tenant in the abovementioned premises and specifically averred that they were inducted as tenants since 1947-48 and defended the right of his predecessor-ininterest (his mother Fatima Bai) to rent out these premises. The third round of litigation are the separate suits filed by the four petitioners against respondents Nos.1 and 2, originally in the Court of Civil Judge but which were later on transferred to the High Court and are numbered as Suits Nos.155 of 1974, 156 of 1974, 157 of 1974 and 158 of 1974 and are to be heard and decided alongwith Suit No,142 of 1973. Here also, predecessor-in-interest of respondent No,1 in her written statement conceded the title of the petitioners as her tenants. In these suits the petitioners were granted status quo orders.
4. ' The dispute was resting at this stage when on 14th February, 1991 Director Lands K.M.C. (respondent No,3) took action for the removal of alleged road obstructions and so-called unauthorised wall fixtures (in fact, the tenements of the petitioners). S.D.M. Preedy, D.S.P. Preedy and S.H.O. Preedy Police Station, alongwith a huge police force reached the site early in the morning. They had brought 8 to 10 trucks as well. The petitioners were allegedly taken into custody and whisked away to Preedy Police Station, where they were illegally kept in detention till 6-00 p.m. And in their absence their premises were ransacked and demolished and merchandise worth about rupees twenty lakh was taken away in trucks. According to the petitioners, respondents Nos.1 and 2 had now colluded with each other and it was at their instance and instigation that Director Land (K.M.C.) had taken this action.
5. ' The petitioners then moved two miscellaneous applications in Suit No,142 of 1973 which came up before learned Single Judge on 18-2-1991 when Nazir was appointed Commissioner who visited the Site and submitted his two reports dated 19-2-1991 and 24-2-1991 (Annexures `L' and `M').
6. ' At this stage the petitioners filed this Constitutional petition on 27th February, 1991 impugning the action of respondents Nos.3 to 6 whereby the petitioners have been evicted from their tenements in spite of the fact that the litigation was, and still is, pending between the petitioners on one hand and respondents Nos. 1 and 2 on the other and the dispute is subjudice between the parties, and respondents Nos.1 and 2 are restrained from evicting the petitioners unless the decision of the pending cases goes against them. The petitioners seek the following reliefs:-- "(a) To hold that the respondents Nos.3 to 6 had no lawful authority to carry the mass eviction of the petitioners, otherwise than in due course of law, on a complaint from the respondents Nos.1 and 2, without any show-cause notice and under the colour of resorting to the provisions of Removal of Encroachment Act, 1975.
(b) Be further pleased to order that the petitioners be restored the peaceful possession of their shops alongwith the goods lying therein in the condition as on 14-2-1991 before their illegal eviction and removal of goods and annexation of their shops by the respondents Nos.1 and 2 into main shop of Fort View Building situated on plot hearing Survey No,1, Sheet SB-7, corner of Abdullah Haroon Road and Preedy Street, Karachi.
(c) Any other relief which under the circumstances of the case this Honourable Court may deem fit and proper.
(d) Cost of this petition may also be awarded to the petitioners."
7. ' Mirza Altaf Beg, Assistant Director Land K.M.C. Filed counter-affidavit on behalf of respondent No,3 on 26-3-1991 in which the stand taken was that the petitioners constructed wall fixtures on K.M.C.
8. Road and Foot Path which were creating obstruction in the free flow of pedestrian traffic and therefore, the said wall-fixtures were removed with the help of police and under the supervision of the S.D.M. It was averred that only the sheets of the shutters were removed and deposited in the K.M.C. Store and it was denied that valuable articles worth about two lakhs had also been taken away from the premises by the Municipal staff (as a matter of fact, the petitioners had claimed loss of property worthy twenty lakhs). It was also averred that the premises occupied by the petitioners as tenants of the landlord had not been touched and only the wall fixtures which caused obstruction to the pedestrian-traffic had been removed. One S. Ghazanfar Abbas, claiming to be Director Lands K.M.C., filed another counter-affidavit two months later. No direction was given by the Court for the filing of this second counter-affidavit nor any permission was obtained from the Court to file this second affidavit on behalf of respondent No,3 and it appears to have been filed surreptitiously. Even so, Mr. Ghazanfar Abbas stated in his affidavit that he had dealt with the case, that an attempt was made in his presence on 2-2-1991 to serve the petitioners with notice under section 5 of Sindh Public Property (Removal of Encroachment) Act, 1975 (Act V of 1975) but all the petitioners refused to receive the notice whereupon the notices were affixed on the wall-fixtures and it was claimed that the action taken by him was in accordance with law and that the tenancy rights of the petitioners had not been affected. Four copies of notices allegedly served on ' The petition was filed on 27th February 1991 and first came up before the Court on 7-3-1991 when the pre-admission notices were issued to respondent- Nos.3 and 4 for 21-3-1991 and they were directed to file comments within two weeks. However, no comments were filed on 21-3-1991 and at the request of the counsel of respondents Nos.3 and 4 the hearing was adjourned to 27-3-1991. On this date it was found that while respondent No,4 had filed comments, respondent No,3 had not.
9. Respondent No,3 did not file comments even afterwards but on 26-3-1991 counter-affidavit was flied by Mirza Altaf Beg; Assistant Director Lands on behalf of respondent No,3. On 27-3-1991 the petition was admitted to regular hearing for determination of the contention raised by learned counsel of the petitioners that the removal of the petitioners by K.M.C. Was wholly without jurisdiction as no notice as required under section 3 of the Act No,V of 1975 was ever served on the petitioners before taking the impugned action.
10. ' In para 9 of the petition, the petitioners had specifically stated that no notice was served upon the petitioners or any personal hearing was given to them before dislodging them from the premises.
11. In para. 5 of his counter-affidavit in which para. 9 of the petition was replied, Mirza Altaf Beg, Assistant Director Lands, did not deny this fact. This was the only counter-affidavit lawfully filed on behalf of respondent No,3. It appears that later on respondent No,3 realised this lacuna and surreptitiously filed another counter-affidavit two months afterwards, this one sworn by S. Ghazanfar Abbas Director Lands himself, in which it was asserted that an attempt was made to serve notice under section 5 of Act V of 1975 upon the petitioners but they refused whereupon it was served by affixation and copies of four notices Annexures `D-1' to 'D-4' were filed. The assertion made in the subsequent affidavit of S. Ghazanfar Abbas that notice under section 5 of Act V of 1975 was given to the petitioners but they had refused service whereupon it was served by affixation on the premises is clearly an afterthought. This assertion even otherwise cannot be believed because the name of the process-serving official who affixed the notices on the premises is illegible on the notices Annexures 'D-1' to 'D-4' and S. Ghazanfar Abbas also did not disclose it in his affidavit and learned counsel of respondent No,3, when asked during the course of hearing, as to whether he could give his name, candidly conceded that his name could not be ascertained from the record of respondent No,3. Notices Annexures 'D-1' to 'D-4' al< show that the process-serving official had not sworn affidavit in proof of service by affixation after the refusal of the petitioners to receive the notices and the `refusal report' is not an oath. If this story of refusal of petitioners to receive the notices and their service by affixation were correct, Mirza Altaf Beg would not have omitted to mention this material fact in his counter-affidavit. We take serious view of the manner in which respondent No,3 has sought to bring this evidence on record through a second counter-affidavit for which no permission from the Court was obtained. Moreover, even if we assume for the sake of argument, that the petitioners were duly served by affixation, still the impugned action cannot be sustained under the law because section 5 of the Act stipulates a clear notice of seven days and even if service by affixation was affected on 7th February, seven days notice period would expire on 14th February and as such respondent No,3 could take action at the earliest on 15th February and since it was taken on the 14th February, it was taken one day too early and was, therefore, unwarranted and illegal. It is also surprising that respondent No,3 did not prepare any inventory of the articles and merchandise thrown away from the demolished structures and the statement that they had not removed them does not appear to be true. The wall-fixtures were evidently within the portion of the wall of the shop of respondent No,2 and in that portion of it which contained doors and windows. That is why the petitioners entered into the agreements of tenancy with Mst. Fatima Bai (mother of respondent No,1 and the previous owner of the premises), a fact which stands admitted both by Mst. Fatima Bai and respondent No,1, as discussed earlier. As such these wall- fixtures cannot be termed as encroachments on municipal foot-path. If the petitioners had encroached upon the municipal foot-path as well, respondent No,3 could have removed such encroachment but he had no authority to demolish the wall-fixtures and shutters which were certainly not on municipal foot-path. Since 1973 litigation is pending between the petitioners on one hand and respondents Nos.1 and 2 on the other in respect of the tenancy rights of the petitioners and respondent No, 3 has clearly acted illegally and in mala fide manner in removing the petitioners from the tenanted premises. The contention of the petitioners that respondent No,3 had acted at the instance of, and in collusion with, respondents Nos.1 and 2, does not, in the circumstances, appear to be without substance.
12. In short, we hold that the action of respondent No,3 does not appear to be bona fide and even otherwise it is not sustainable under law as the provisions of section 5 of Act V of 1975 were not strictly followed inasmuch as action was taken against the petitioners either without serving them with the mandatory notice under section 5 of the Act or, in the alternative, before the expiry of notice period. We are, however, not inclined to make any observations as regards the conduct of respondents Nos. 4 to 6 who were misled into providing assistance to cover a mala fide and illegal operation. We would also refrain from commenting on the further prayer as regards the restoring of the wall-fixtures as the dispute is subjudice before this Court in a civil suit.