'I. MAHMUD J.-The petitioner, All Hussain, acting in a representative capacity on behalf of 36 other stall-holders besides himself, has invoked the constitutional jurisdiction of the High Court under Article 199 of the Constitution, to challenge the action of the respondent, the Karachi Municipal Corporation, and its officers, purporting to cancel the allotments and evict them from the stalls and Thallas constructed thereon as being without lawful authority and of no legal effect.
2. The case of the petitioner, Ali Hussain, is that he is General Secretary of an Association of Stall- Holders, the United Federation of Pakistan, and is suing as such on behalf of himself and other 36 stall-holders of Thallas situate in a passage on Plot No, 1 S. B. 9 between and alongside the Beef/ Fish Section of the Empress Market, Saddar, Karachi, The petitioner avers that since several years, he and the 36 other persons have been in possession of open spaces in the aforesaid passage which they have been using for carrying on their trade in selling fowls, poultry, eggs, vegetables, etc. That in the year 1955, the Karachi Municipal Corporation, the respondent No, 1, tried to shift them forcibly from the open spaces to other sites, with the result that they were compelled to institute Suit No, 435 of 1956 in the High Court for declaration and injunction and they obtained interim relief The suit was compromised on the respondent's undertaking to examine their claims to allotment of shops elsewhere, but the compromise was not honored resulting in further litigation through writ petition and several suits. That, ultimately in early 1974, with the object of ending the long pending issue, the Estate Officer, Karachi Municipal Corporation, respondent No, 3, informed the petitioner and other stall-holders by his letter dated 2-3-74 that the Administrator, K. M. C. The second respondent herein, has been pleased to permit them to occupy and construct temporary B.
C. C. Thallas of given dimensions alongside the Beef/Fish Section of the Empress Market according to approved plans and specifications at their own cost and expense at a monthly rent of Rs, 10 subject to payment of 3 months' advance rent plus 3 months' security deposit. The payments having been made, the Estate Officer requested the petitioner as attorney of the other 36 stall- holders, by his letter dated 4-3-1974 to take possession of the sites for construction of the Thallas from the Assistant Estate Officer. That there were disputes inter se in connection with demarcation, cost of constriction and other incidental matters, but they were settled through arbitration and award which was filed in Court, in which the Court ordered the Nazir as Commissioner, to demarcate the houneaties of the stalls allotted to them. Pursuant thereto and in the presence of the respondent's staff, the petitioner and others obtained possession and in due course constructed the Thallas according to the approved plan and specification. That on 17-9-74, the Administrator, K. M. C. Along with his staff suddenly came to the Thallas and tried to forcibly demolish the Thallas and eject them on the plea mentioned in their predated cyclostyled notices dated 9.9-74 which they dropped and left there, stating therein that it has now transpired that the allotment orders in respect of the Thallas were obtained through misrepresentation of facts and commitment of fraud and, therefore, they were cancelled with immediate effect and ordered them to vacate the space in question immediately. That some of the Thallas were thus demolished causing monetary loss and throwing the owners out of business. The petitioner has, therefore, been authorized to file the present petition praying for an order that the action of the respondents in demolishing the Thallas occupied and constructed by them at their own cost is without lawful authority and of no legal effect and for a declaration that the petitioner and other stall-holders held the Thallas as lawful tenants of the respondents who cannot be evicted therefrom except in due course of law, It is also prayed that a direction be issued to the respondents restraining them from giving effect to the impugned notices and from ejecting them or interfering with the raising of construction of the Thallas according to the approved plan and specification of the respondents on the spaces occupied by them.
3, The case of the respondents as set out in the counter-affidavit dated 30-9-74 of Mohammad Ahmad son of Liaquat Husain, Estate Officer, K. M. C. Is that the alleged allotted were only licensees and not tenants and that the alotments having been illegally made by the then Estate Officer through misrepresentation and fraud, were validly withdrawn and cancelled. It was further stated in the counter-affidavits that the site which the petitioner and other stall-holders were claiming was not available for allotment as the same is an open passage between the Beef and Fish Markets and is being used as an access to the gates of the market for loading and unloading of commodities, and if the passage is blocked by the construction of Thallas, trucks carrying the merchanclev, including meat, cannot be brought into the market.
4. Mr. Shamsul Arfreen, learned counsel for the petitioner, candidly and rightly did not press the claim of the petitioner and others that they are tenants in respect of the said sites. A bare reading of the allotment onset. StIOWS that what was granted to the petitioner and others was "permission" to occupy a ceitsia space of the given area and dimension alongside the passage of the Beef and Fish Sections of the Market for construction of R. C. C. Temporary Thalia thereon. The fact that a monthly rent of Rs, I 0 is demanded in the permission letter, instead of fee, did not create a tenancy.
It is also immaterial how the parties describe or call the amount agreed to be paid, if it is clear from the document, as is the case, that the respondents did not intend to transfer an interest in the land or demise the space to the stall-holders.
5. The main contention of Mr. Shamsul Arfeen is that as licensees, the petitioner and others had erected R. C. C. Thallas on the sites allotted to them and had incurred expenses in their execution, which being works of a permanent character, the licences could not be revoked. Counsel referred to section 60 (b) of the Easements Act, 1882, which states that a licence may be revoked by the grantor, unless the licensee acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution. He also cited Jayat Singh and others v. District Board, Amritsar (1). In that case, which is strictly not relevant, although the Easements Act, 1882, was held not applicable to the former Punjab, the principle of section 60 of the said Act was applied as a rule consonant with equity, justice and good conscience. It is, however, not necessary for us to give a finding on this question, because admittedly the permission only was to construct temporary Thallas which were to be property of the Karachi municipal Corporation.
6. The next submission of Mr. Shamsul Arfeen is that the revocation of the licenses of the petitioner and others suffers from yet another defect, because the petitioner and others were sought to be evicted without giving them an opportunity to show cause against the proposed ejectment and that such action was in breach of principles of natural justice. It is submitted by Mr. Nasir Khan, counsel for the respondents, that notices dated 9-9-74 were served on some of the stall-holders and the petitioner, while others refused to take them and so they were pasted, This fact is disputed by Mr. Shamsul Arfeen, who contended that the alleged cyclostyled notices were pre-dated as 9- 9-74 but were actually left or dropped at the site on 17-9-74 when the respondents' staff came there to demolish the Thallas and eject the stall-holders. However, the disputed question of fact relating to issue of the alleged notice is beyond the scope of a constitutional petition. But, even assuming that notices were served on some of the stall-hoders, they were notices cancelling the allotment and ordering the stall-holders to vacate the spaces immediately on the alleged ground that the allotments were obtained through misrepresentation and fraud. Particulars of the alleged misrepresentation and fraud were not communicated to the petitioner and the, others. Thus, they were denied the opportunity of meeting the case against them or of submitting their explanation against the cancellation of their allotments and deprivation of their property. Such action on the part of the respondents is, therefore, in our opinion, a breach of principles of natural justice. The contention of Mr. Nasir Khan for the respondent that the petitioner and other stall-holders were not entitled to receive show-cause notices before ejectment on the ground that they were bare licensees, cannot be accepted because, as held earlier, the licenses were not only not revocable at will in the absence of a provision to that effect, but also because they could not be revoked without affording them an opportunity to be beard in person as provided in section 38 (3) of the Sind People's Local Government
(1) AIR 1940 Lah. 509 ' Ordinance, 1972. This, however, will not preclude the K. M. C. From taking action after complying with the requirements of show-cause notice and Hearing.
7. We are, therefore, satisfied that for the forgoing reasons, the threatened action of the respondents is without lawful authority and of no legal effect. The impugned notices are accordingly set aside. The petition is allowed with no order as to costs.