1. MAMOON KAZI, J.---By this common order we propose of dispose of C.P. No. D-1478 of 1994 and C.P. No. D-1479 of 1994 as common questions of law and fact are involved in the petitions.
2. The petitioner in the first petition was owner of Plots Nos. 172 and 173, whereas, the petitioner in the second petition was owner of Plots Nos. 178 and 179, situated in Garden West, Karachi. The said plots were occupied by encroachers which led the petitioners to apply to respondent No. 2 to declare the land as Katchi Abadi and either pay compensation to the petitioner or allot alternate land to them.
3. The occupants of the said, Katchi Abadi, in the meanwhile, also made a demand for regularisation of their occupation of the said land. It is the case of the petitioners that on 13-12-1990, K.M.C., vide its Resolution No. 963 dated 31-12-1990 recommended to respondent No. 1 to notify the said land as Katchi Abadi and arrange for payment of compensation to the private owners. A notification dated 24-1-1991 was consequently issued declaring the said land as Katchi Abadi. The matter was, thereafter, referred to the tribunal appointed under the Sindh Katchi Abadis Act, 1987 which, by order dated 30-9-1991, evaluated the price of the said land as Rs. 2,000 per sq. Ft. Such evaluation was further confirmed in a meeting held on 20-1-1992 in the office of the Additional Chief Secretary, Local Government, Katchi Abadi and Rural Development, Government of Sindh. Thereafter, another notification dated, 24-1-1994 was issued by the Government of Sindh under sections 19 (1) and (3) of the Sindh Katchi Abadis Act. However, thereafter, no compensation has been paid to the petitioners, and hence this petition. Respondent No. 2 has tiled para-wise comments wherein it has been admitted that Rs. 2,000 per sq. Ft. Has been fixed as compensation payable to the petitioner but the said amount was to be paid by K.M.C., by which work of regularisation of the settlement was also to be undertaken. So far as the liability of the respondent No. 2 to pay compensation to the petitioners is concerned, the same has been denied in view of the circumstances enumerated earlier.
4. We have perused section 19 of the Sindh Katchi Abadis Act, 1987. It provides. For issuance of notification in official Gazette declaring any area or apart thereof, wholly or partially occupied unauthorisedly, as a Katchi Abadi. However, as is indicated by subsections (2), (3) and (4) of section 19 of the said Act, certain area cannot be declared as such under section 19 of the said Act, unless the conditions, if any, laid down by the said subsections are fulfilled. Subsection (3) of section 19 of the said Act under which the land in question has apparently been acquired provides as follows:--- "S.19(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 Katchi 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."
5. It is also pertinent to reproduce subsection (6) of section 19 of the Act which provides as follows: "S.19(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 therefore, 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 on 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.
6. The plain reading of the aforesaid subsections indicate that no area owned by a private person or a Cooperative Society was to be declared Katchi Abadi except with the consent of such person or the society, as the case may be. The said subsections further indicate that when a Katchi Abadi is so declared, it would be subject to such terms and conditions as may be agreed to between such person, or as the case may be the society and the Authority. Subsection (6) of section 19 of the said Act further shows that where in the opinion of the Authority, an area referred to in subsection (3) cannot be acquired by consent or agreement, the same may be acquired and compensation thereof 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 the Sindh Katchi Abadis Act, 1987. Further details in this regard can be found in clauses (a) to (d) of subsection (6) of section 19 of the said Act.
7. It is not the case of the petitioner that the land was acquired by respondent No. 2 under section 19
(6) of the said Act. On the contrary, there appear to be sufficient evidence to show that the land had been acquired under section 19 (3) of the said Act as admittedly the petitioners themselves applied to respondent No. 2 for compensation in respect of the said land by allotment of alternate land or monetary compensation. As is clearly indicated by subsection (3) of section 19 of the said act, in case the owner gives his consent for declaring his land as a Katchi Abadi, then the same would be subject to only such terms and conditions which have been agreed to between such owner and the Authority. Consequently in case the Authority, after entering into an agreement with the owner, fails to honour the terms and conditions of such agreement, the owner cannot seek any remedy against the Authority by filing of a Constitution petition but the obligation of the Authority, being a contractual obligation, the same can be enforced by filing a suit. Subsection (3) of section 19 of the said Act further indicates that it is up to the owner to determine the terms in respect of compensation etc., with the Authority and, in case the owner fails to arrive at a comprehensive settlement and leaves certain matters still undetermined, then, in that case, he should only blame himself. No doubt, the case would be different if the property has been acquired under section 19(6) of the said Act because, that would bring into play the machinery provided by Chapter IV of the Hyderabad Development Authority Act, 1976, as modified by subsection (6) of section 19 of the said Act.
8. Consequently, even if we agree that the petitioners have not been fairly dealt with by any person liable to pay compensation to them, the obligation arising out of an agreement, we would not like to interfere, while exercising powers under Article 199 of the Constitution as adequate remedy can be sought by the petitioner in such case by filing of a suit.
9. It is, however, open to the petitioners to seek any other remedy available to them under the law.