1. ' This is an application under Order XXXIX, rules 1 and 2, read with section 151; C.P.C. Wherein the plaintiff have prayed for interim order restraining the defendants Nos.5, 6 and 7 from evicting the occupants/residents of Block-D Hazara Colony, (ad measuring 0.75 acres) situated near Kala Pul, Korargi Road, Karachi, or taking any action in pursuance of show-cause notice dated 3-5-2001.
2. Relevant facts leading to this litigation are that on 12-5-2001 Anjuman Falah Wa Behbud, an association registered under the Societies Registration Act. 1860, filed a suit for declaration and permanent injunction stating therein that its members, as mentioned in the list Annexure D to the plaint are residents of Block-D of. Hazara Colony. Hazara Colony, consists of Blocks-A, B, C and D, total admeasuring 17.83 acres, out of which an area admeasuring 7.94 acres has been notified as Katchi Abadi while the area of Block-D of Hazara Colony is still in the process of such regularization.
3. On 3-5-2001 occupants of residential and commercial units of Block D of Hazara Colony have been served with show-cause notices under sections 3, 4 and 5 of Ordinance LIV of 1965 for their eviction, which show that defendants Nos.5. 6 and 7 are determined to evict them, thus necessitating institution of present suit to protect possession. In the listed application, which is accompanied with the plaint the plaintiff have sought interim relief as referred above.
4. The main contesting defendants Nos. 1, 2, 5 to 7 , i,e,, Pakistan Railways, have filed their written statement wherein they have made categorical statement that Block-D of Hazara Colony was non-existent on 23-3-1985, in Block-D the number of houses, i,e, residential units, is less than 20, and therefore, under regulation 3(2) of the Sindh Katchi Abadi Authority (Regularization, Improvement and Development) Regulations. 1993 (hereinafter referred to as Regulations of 1993) it does not qualify for declaration as Katchi Abadi and also that they do not intend to issue any no objection for this land the Katchi Abadis Authority as contemplated under section 19 of the Sindh Katchi Abadis Act, 1987 (hereinafter referred to as Act of 1987).
5. ' In their objections to the listed application similar pleas have been raised and it has further been stated that the institution of suit is result of legal steps taken by the defendants (Railways) for removal of unauthorized occupants from t heir land for which notices under sections 3, 4 and 5 of the Central Government Lands and Building (Recovery of Possession) Ordinance of 1965 have been issued to illegal occupants of Blocks-D of Hazara Colony.
6. ' Mr. Khalil-ur-Rehman in his detailed arguments repeatedly referred to various correspondence between the defendant No,3 and the Railways Department and also policy decisions of the Federal Government to show that after all these proceedings issuance of NOC by railways is a mere formality and members of the plaintiff association, who are in occupation of their properties in Blocks-D of Hazara Colony since prior to 1985 are entitled for regularization of their possession under the Act of 1987. With reference to the possession of these occupants learned counsel also referred to some others documents annexed with the plaint i,e,, letter written by Divisional Superintendent, P.W.R. To the Vice Chairman, Headquarters Office, Lahore dated 19-9-1973 and letter issued from the Office of Deputy Martial Law Administrator dated 14-5-1981 to fortify his contention that possession of residents of Blocks-D of Hazara Colony is prior to 23-3-1985. Referring to section 19 of the Act of 1487 he further contended that as regards the land occupied by the members of the plaintiff association there is no legal impediment in the way of railways for granting no objection to the Sindh Katchi Abadis Authority, who had been making correspondence with them for this purpose. Lastly referring to the notice dated 3-5-2001 learned counsel contended that as the member of plaintiff association are in possession of land under the Katchi Abadis Act, therefore, the provisions of Central Government Lands and Buildings (Recovery of Possession)
7. Ordinance, 11965 are not applicable to their case. He, however, did not dispute that till today neither Railway Authorities or Federal Government have given their consent to the Katchi Abadis Authority for utilizing their land occupied by the residents of Block-D of Hazara Colony for Katchi Abadi or under the Act of 1987 any notification has been issued in this regard.
8. ' On the other hand Chowdhary Rasheed Ahmed in his arguments specifically referred to various documents filed by the plaintiff to show that there is no proof or iota of evidence on record to substantiate the claim of plaintiff that possession of its members over the disputed land of Block-D of Hazara Colony is prior to 23rd March, 1985. Referring to section 3(x) and section 19 of the Act, 1987, learned counsel contended that no area can be treated as Katchi Abadi unless a notification in conformity with the said provisions of law is issued by the competent authority. Learned counsel also referred to Regulations 2(f) and 3(2) of Regulations of 1993 to show that even according to plaintiff's own case the minimum requirement of forty dwelling units is not met in the case of the plaintiff. In this context he specifically referred to Annexure D to the plaint which goes to show that it is the case of the plaintiff that the number of occupants of residential units/houses is 27 while the number of occupants of shops/commercial units is 41. He further contended that on this account also Block-D of Hazara Colony cannot be declared as Katchi Abadi. Arguing the applicability of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, learned counsel contended that in view of the admitted position that Block-D of Hazara Colony has not been declared as Katchi Abadi, the status of its occupants is that of illegal occupants of Government land belonging to Pakistan Railways and thus action for their dispossession taken by Pakistan Railways is fully warranted by law.
9. ' Mr. Muhammad Jamil, learned counsel for defendant No,3 candidly stated that till today no notification has been issued by the Sindh Katchi Abadis Authority declaring Block-D of Hazara Colony as Katchi Abadi.
10. ' Chowdhary Muhammad Iqbal, Assistant, Advocate-General for defendant No,4 submitted that interest of defendant No,4 is not involved in the present suit, and therefore, he has nothing to argue in this matter.
11. ' I have carefully considered the arguments advanced by the learned counsel for the parties and perused the material placed on record.
12. In the instant case all the arguments advanced by the learned counsel for the plaintiff fall on ground for the simple reason that admittedly suit land belongs to Pakistan Railways and they or Federal Government have not consented for its declaration as Katchi Abadi as per the requirement of section 19(2) of the Act, 1987. In addition to this, it is also an admitted position that till today no notification declaring Block-D of Hazara Colony as Katchi. Abadi has been issued under the Act of 1987.
13. ' The other contentions of Chowdhary Abdul Rasheed, Advocate for Railways have also much force as according to plaintiffs own case the number of dwelling units mentioned in the list Annexure D to the plaint is less than the minimum required number of forty dwelling units as provided under Regulation 3(2) of the Regulations of 1993. In this context it is also interesting to mention that in the list of occupants of houses filed by the plaintiff, occupants at serial Nos.2, 3, 5 and 20 are members of the same family and in the other list of occupants of shops also occupants at serial Nos.21, 23 and 37 are members of the same family of Mr. Bostan Khan, who claims himself to be the President of plaintiff association.
14. ' Reverting to the question of period of possession of residents of Block-D of Hazara Colony it may be observed that none of the documents filed by the plaintiff alongwith plaint go to show that Block-D of Hazara Colony was in existence prior to 23rd March, 1985. According to plaintiff's own case Hazara Colony consists of four Blocks A, B, C and D and covers and area of 17.83 acres out of which an area of 7.94 acres has already been declared as Katchi Abadi vide Notification dated 31st March, 1988. In such circumstances reference of only Hazara Colony in certain letters/correspondence placed on record by the plaintiff will not help their case that Block-D of Hazara Colony was also in existence prior to 23-3-1985. On the contrary issuance of Notification dated 31-3-1988 declaring only an area of 7.94 acres as Hazara Colony Katchi Abadi gives an impression that at that time only that much area was within the area of Hazara Colony or was found fit to be notified as Katchi Abadi.
15. ' Mr. Abdul Rasheed, counsel for Pakistan Railways, has also referred to the case of 2001 CLC 1229, whereby several petitions filed by the occupants of Railway land were dismissed. I have gone through this judgment and noticed that view expressed by the Court in this case seems to be applicable to the facts of the present case.
16. From the above discussion, it is evident that the plaintiffs have failed to make out any prima facie case for grant of interim relief, balance of convenience does not lie in their favour and the occupant of disputed land. Being occupants of Railways land without any legal rights, will not suffer any irreparable loss and injury if action is taken for their eviction in accordance with law.
17. ' For the foregoing reasons this application is dismissed with costs.