1. In reply to office objection with regards to the payment of maximum court-fee, Syed Ansar Hussain, Advocate for the plaintiffs, has provided a list of 11 suits involving the same objection, which is under consideration before a larger Bench of this Court. He states that the view taken in those 11 cases by the Full Bench would also be applicable in the present case. He states that arguments have already been advanced and the decision of the Full Bench is awaited. Learned counsel for the defendants have no objection to the same. Accordingly, the office objection is deferred for the time being.
2. C.M.A. No,3389 of 2002 (under Order VII, rule 11, C.P.C.) By this application under Order VII, rule 11, C.P.C. the applicant seeks rejection of the plaint in the suit on the following grounds:--
(1) That the suit as framed is not maintainable under the law.
(2) That the present suit is barred under section 80 of Code of Civil Procedure.
(3) That the plaintiffs have got no cause of action to file the present suit against the answering defendant.
(4) That the present suit is barred under Article 131 of Karachi Development Authority Order (President's Order 5 of 1957) as no notice has been served upon defendant No,1 .
(5) That the present suit is also barred under Order VII, rule 11, C. P. C .
3. The plaintiffs claim to be the owners in possession of plots leased out to them by the Karachi Municipal Corporation (hereinafter referred to as "K.M.C.") in pursuance to the s respective lease deeds executed in favour of the plaintiffs individually. The plaintiffs, on apprehension that their houses would be demolished for facilitating the construction of Lyari Express Way, have filed this suit seeking following prayers:--
(i) A declaration that the Mianwali Colony is a regularised and leased colony and therefore cannot be disturbed by the defendants.
(ii) That the defendants have no right or title to demolish the same.
(iii) That in case the planing of the project cannot be abolished or determined, a suitable modification is to be affected in the scheme saving the plaintiffs' colony with minimum loss.
(iv) That alternatively if for any reasons the demolition of Mianwali Colony is unavoidable and cannot be avoided, the plaintiffs are entitled to damages and payment in cash before demolition of their properties as valued by them.
(v) That this Honourable Court be pleased to appoint the Nazir of this Honourable Court to go to the colony prepare an inventory of the assets and value, of the houses pending the disposal of the suit.
(vi) Pending the disposal of the suit this Honourable Court be pleased to restrain the defendants from demolishing Mianwali Colony of the plaintiffs.
(vii) Any other relief or reliefs which this Honourable Court deems fit and proper in the interest of justice.
4. Mr. Suleman Habibullah, learned A.A.-G., has raised several objections to this suit. His first contention is that each of the plaintiffs has a distinct claim with respect to a separate property under the alleged lease in his favour and the present suit containing all the causes of action arising out of different contracts is not maintainable. His second contention is that no construction is allowed to be raised within the limits of the municipal corporation without an approved plan and, therefore, all the constructions raised' by the plaintiffs, being raised without any approved plan, are illegal and are liable to demolition in the ordinary course of law. He placed reliance on section 37 of the Bombay Land Revenue Act, 1964, adopted by the Government of Sindh in 1964, providing for river bed and embankments to remain the property of the Government of Sindh that was not transferred to the municipal corporation and the leases extended in favour of the plaintiffs by the then K.M.C. with respect to the lands on the river bed or on the embankments of the Lyari River is without lawful authority as the land was never handed over to K.M.C. by the Government of Sindh and, therefore, K.M.C. has no authority to lease out the same to any one. Therefore, the learned A.A.- G., contended that the transaction of lease constitutes a void agreement between K.M.C. and plaintiffs under section 20 of the Contract Act. It has also been stated that the Project is being undertaken for the development of the City on land belonging to the Government of Sindh. He submitted that although the title of the plaintiffs is disputed, yet, on compassionate grounds, the Government of Sindh is allowing compensation to each of the affectees/occupants of the property at the rate of Rs,50,000 in addition to a plot of land admeasuring 80 sq. yards at an alternate location.- Mr. Abbas Ali, while adopting the arguments of Mr. Suleman Habibullah, A.A.-G., has further argued that the contention of the plaintiff that the area falls within Katchi Abadi- is untenable as no notification, as required under the provisions of Katchi Abadi Act has been issued with respect to the area. He submits that no Katchi Abadi can be-regularised in a river bed or on an embankment. The learned counsel further states that the action is to be taken under the provisions of Sindh Public Property (Removal of Encroachment) Act, 1975. However, due to interim orders passed in the ease by the Court, the proceedings could not be initiated. However, he submitted that no injunction can be granted to restrain the defendants from performing their official functions as provided under the said Act. He further contended that no action will be taken . contrary to the provisions of law and notices will be issued to the plaintiffs after the restraining orders, passed in the present suit, are recalled.
5. Mr. Manzoor Ahmed, learned counsel for City Government, while adopting the above arguments of Mr. Suleman Habibullah and Mr. Abbas Ali, has also referred to the provisions of (sic) MLD 183 and also placed reference on the decision of a Division Bench of this Court in C.P. No,D-2257 of 2001 (Shakeer Ahmad Khan Yousafzai v. Nazim Union Council, Karachi and others) and C.P. No,D-460 of 1998 (Mustafa v. Karachi Municipal Corporation and others).
6. Syed Ansar Hussain learned counsel for the plaintiff, has vehemently opposed this application. His contention is that the whole area falls within the mischief of the action proposed to be taken by the defendants and the cause of action in favour of the plaintiffs raising out of such action is not different but is in respect of the entire locality. He submits that the proposed action is contrary to the 'provisions of Article 24 of the. Constitution of the Islamic Republic of Pakistan as the plaintiffs are being deprived of their property without payment of compensation, which is opposed to the Fundamental Rights conferred under the Constitution.
7. The position regarding non-compliance of the provisions of the Act of 1975 has already been explained as the learned A.A.-G. submitted that it is only due to the existence of the restraining order that no notice as yet has been issued to the plaintiff as required under the said Act and the undertaking on behalf of the learned counsel for the defendants that as soon as the restraining order is recalled, notices will be issued to the plaintiffs before taking any action according to law in pursuance to the Act of 1975. The case of the present plaintiffs is covered by the decision of the Division Bench of this Court in C.P. No,D-2257 of 2001 wherein it has been observed as under:-- Plot No,395/1 lies in area which has been earmarked for construction of Liyari Express Way yet he is at liberty to submit plan/map for approval of construction before the concerned respondents, which will be considered in accordance with law and subject to any order of the Court. However, in case the concerned authorities find that any illegal construction has been raised on the said plot, the relevant functionaries in absence of approval of plan shall be at liberty to take action against such illegal construction." The question of illegal construction raised without approved plan and execution of lease in unauthorised manner, was also considered by a Division Bench of this Court in the case of C.P.
8. No,D-460 of 1998 wherein it has been observed that the petitioner cannot claim to be a lawful owner of the plot in question and the respondents are free to cancel his lease upon refund of the amount paid by him.
9. The grant of injunction in the present case would amount to interference with the official duties of the public officers falling within provisions of section 56(d) of the Specific Relief Act. In view of the above discussion, the prayer in the suit cannot be granted. Accordingly, C.M.A. No,3389 of 2002 is allowed and the plaint in the suit is rejected. C.M.As. Nos.1460 of 2002, 1461 of 2002 and 1462 are also dismissed.