The subject-matter of both the suits is the same, the plaintiff and the defendant are same and both the suits raise common question of fact and law. Therefore, both the suits are being decided by this common judgment. The plaintiff claims to be the co- owner of an immovable property bearing No.BS-20, Block 3, KDA Improvement Scheme No.16, Federal 'IV Area, Karachi, and of property bearing No.BS-27-31, Block 3, KDA Scheme No. 16, Federal.
'B' Area, Karachi. On the former plot; there is a commercial building by the name of "Meena Bazar" and on the later plot, there is a commercial building commonly known as "Bazar-e-Faisal"
(formally known as "Bazar-e-Mustafa").
3. In Suit No. 364 of 1996, the plaintiff had applied to the defendant for granting of permission for putting up five booths for advertisement purposes in front of footpath of Meena Bazar. Similarly, in Suit No. 365 of 1996, plaintiff applied for grant of permission for putting up fifteen booths for advertisement purposes in front of footpath of Bazar-e-Faisal. Permission was granted by the then KMC (now City District Government, Karachi) on the terms and conditions mentioned in its letter.
The plaintiff deposited the amount as per challan issued by the defendant, whereafter temporary' construction of the booths was raised as per approved sketch and were allotted/allocated to different individuals as licensees in the year 1975. The occupants/licensees remained in uninterrupted occupation of the said booths up to 21-3-1996, on which date the defendant approached the said premises and started demolishing the booths with ulterior motive and mala fide intention and without giving any notice in writing. The defendant gave very short time to the licensees/occupants to remove the articles and display items from the booths with threat that if the articles and display items are not removed they will also be demolished alongwith the booths.
The plaintiff and the licensees/ occupants made repeated request that the booths are lawfully erected/constructed' and showed permission, granted by the defendant but the defendant refused to listen and started demolishing the booths. It is alleged that entire act of demolition of the booths by the defendant is illegal, unlawful, unwarranted and based on ulterior motive and inala fide and to cause heavy monetary loss to the plaintiff. It is alleged that the defendant has not complied with the due process of law for demolition of the booths and that the plaintiff has suffered heavy monetary loss as well as mental torture and agony. A legal notice, dated 24-3-1996 was sent by the plaintiff, which was not replied by the defendant. The plaintiff in Suit No.364 of 1996 has, therefore, claimed Rs.4,000,000 as damages and compensation from the defendant whereas in suit No.365 of 1996 the damages amount is claimed at Rs.4,500,000. The plaintiff has made the following prayer in Suit No. 364 of 1996:-
(a) To declare that by virtue of permission letter, dated 24-9-1975 the plaintiff is entitled to raise construction of 5 booths in front of footpath of Meena Bazar at Plot No. BS-20, Block 3, Federal 'IV Area, Karachi;
(b) to declare that the act of demolition of 5 booths in front of footpath of Meena Bazar at Plot No.BS-20, Block-3, Federal *B' Area, Karachi, by the defendant is illegal, unlawful and unwarranted ail such act of demolition done or caused to be done are void and ab initio;
(c) to grant mandatory injunction in favour of plaintiff allowing the plaintiff to raise the construction of 5 booths/display centers in front of footpath of Meena Bazar at Plot. No.BS-20, Block 3, Federal `13' Area, Karachi, as it was on 20-3- 1996, i.e. a day before the booths were demolished by the defendants;
(d) to grant of decree in favour of plaintiff against the defendants jointly and/or severally for a sum of Rs.4,000,000 (Rupees four million only) being the amount as compensation against the damages and mental torture and agony caused to the plaintiff due to the illegal act of defendants, with 15% profit from the date of suit till realization of entire amount;
(e) cost of the Suit;
(f) any other relief as deem fit and proper by this Hon'ble Court.
4. Identical prayer is made in Suit No.365 of 1996 with change of number of the plot, number of booths and the amount of damages.
5. The defendant has filed written statement in both the suits, in which the claim of the plaintiff has been denied.
6. On the basis of the pleatlings of the . Parties, the following issues were framed in Suit No.364 of 1996:--
(1) Whether the defendant has granted the permission in the year, 1975 for putting up booths for advertisement purpose in front of Meena Bazar?
(2) Whether the defendant has issued any notice as required under the law either to the plaintiff or the occupant, if not, what effect?
(3) Whether the defendants have got any approved site-plan, for -the proposed bridge/flyover?
(4) Whether the plaintiff's premises is within the alleged alignment, if not what effect?
(5) Whether defendant has acted illegally while demolishing, the booths without observing the procedure prescribed under the law, if yes, what effect?
(6) Whether the plaintiff is entitled to claim compensation, if yes for what account?
(7) To what relief plaintiff is entitled?
(8) What should the decree be?
7. Similar issues were also framed in Suit No. 365 of 1996, except in issue No.1 the name of the building is mentioned as Bazar-e-Faisal.
8. The plaintiff and the defendants have led evidence in both the suits separately.
9. In suit No. 364 of 1996, plaintiff has filed his own affidavit-in-evidence and also affidavit-in-evidence of his one witness namely Dawood son of Noor Muhammad. From the side of the defendant affidavit-inevidence of Syed Ala- e-Ahmed Naqvi, Assistant Director (Land and Lease), KMC, was filed. The defendant's counsel cross-examined the plaintiff as well as the plaintiff's witness whereas the plaintiff counsel cross- examined the defendant's witness.
10. In suit No.365 of 1996, plaintiff filed his own affidavit-in-evidence and also affidavit-in-evidence of two witnesses namely, Ahmed son of Hashim and Abdul Shakoor son of Khair Deen, Whereas affidavit-in-evidence of Syed Ala-e-Ahmad Naqvi, Assistant Director (Land and Lease), KMC, was filed on behalf of the defendant. In this suit the plaintiff adopted his cross-examination recorded in Suit No.364 of 1996 while the two witnesses were cross-examined by the defendant's counsel.
Cross-examination of defendant's witness recorded is Suit No.364 of 1996 was also adopted in this suit.
11. Mr. Muhammad Alcbtar, learned counsel appearing for the plaintiff, has brought written synopsis and has also made oral submissions. In his oral submission, he has contended that the land, on which permission for setting up of booths was granted, belongs to the plaintiff. He has further contended that demolition and removal of the booth was done .Without notice and that the plaintiff is entitled to the grant of relief, as prayed. He has cited cases of Messrs Universal Trading Corporation (Pvt.) Ltd. v. Messrs Beecham Group, PLC (1994 CLC 726), Noor Muhammad v. Civil Aviation Authority (1987 CLC 393) and Messrs Abdul Khaliq Ice Factory v. Karachi Electric Supply Corporation Ltd. (1984 CLC 2720).
12. Mr. Manzoor Ahmed, learned counsel appearing for the defendant, has contended that the land, on which the plaintiff was granted permission for putting up advertisement booths, did not belong to the plaintiff but was of the defendant. Which was licensed to the plaintiff. He further contended that no licence fee was paid by the plaintiff since 1979 and the plaintiff had no right to remain in permanent occupation of the land. He has further contended that as the licence was revoked. By the defendant, the plaintiff had no locus standi to maintain the present suit.
13. I have considered the arguments of the learned counsel and have gone through the record. In the written synopsis, filed by the plaintiff's counsel, at page No.4 the following statement is made:- "In all these cases ante-status-quo were granted and poSsession of the premises was restored to the occupants."
14. Although the plaintiff in both the suits has filed injunction application for restoration of the possession of the booths as existed on 20-3-1996, the Court only passed order of notice. On 31-3- 1998, the Court passed the following order:-- "The relief claimed in the injunction application is same as in the main suit. In case the relief is granted by way of interlocutory application, though tentative in character, nothing will remain to be disposed of at the trial of the suit. Instead of disposing of this interlocutory application. I direct that the suit may now be listed for settlement of issues and fixed for evidence of parties out of turn, if so desired by the plaintiff. To come up after two weeks for issues."
15. The same order also passed in Suit No.365 of 1996. After passing of the above order, issues were framed, Commissioner for recording of evidence was appointed, who recorded the evidence and submitted his report with record of evidence and since then the matter has been listed for arguments.
16. I have examined each and every order that has been passed in both the suits up to the date when they were reserved for judgment and find that ne order of status quo ante was passed nor there is any order whereby the possession of the premises was restored to the occupants. Now what to say about this statement of the plaintiff's counsel, except that it is misleading and incorrect.
17. So far issue -No.1 is concerned, the plaintiff has produced in his evidence defendant No. l's letter, dated 24-9-1975, which is signed by the Superintendent, Advertisement, by which plaintiff was granted permission on temporary occupation basis for putting up five advertisement booths of the size of 4-1/2 x 4-1/2 in front of footpath of Meena Bazar, Karimabad, as shown in the plan, submitted by the plaintiff alongwith his application on payment of Rs.440 as advertisement tax, per annum, subject to payment of Rs.150 as land rent per booth per annum. Similarly, permission vide a letter of similar date was granted in respect; of fifteen booths of the same size in front of footpath of Bazar-eFaisal (formerly known as Bazar-eMustafa). In respect of five booths, the defendant has issued challan (Exhibit 4) for Rs.440 as advertisement tax and another challan (Exhibit 5) towards advertisement tax and land rent for the years 1976-77 to 1978-79 for Rs.3570, which were paid by the plaintiff. In respect of fifteen booths, the defendant has issued a challan (Exhibit 4) for Rs.1,320 as advertisement tax and a challan (Exhibit 5) for Rs.10,710 as land rent for the year, 1976-77 to 1978-79. Both the challans were paid by the plaintiff. The defendant, in its written statement, has not controverted the fact that permission for putting up booths was accorded to the plaintiff but have stated that such permission was accorded on temporary occupation basis as licensee. On the basis of above record. Issue No.1 is answered in affirmative.
18. Issues Nos.2, 3, 4 and 5 are inter connected and they can be conveniently dealt with together.
The main trust of the arguments of the learned counsel for the plaintiff is that plaintiff was not served with the notice prior to taking of action of demolition of the booths of by the defendants. He has referred to the provision of the Removal of Encroachment Act and stated that it provides for a procedure for removal of encroachment. Sindh Public Property (Removal of Encroachment) Act, 1975 (for short the Act) provides in its section 3 for passing of an order for removal of encroachment within a period not less than three days of giving of tendering of order to the person responsible for the encroachment or affixing it at a conspicuous place of the property encroached.
Section 5 provides that if any person refuses or fails to vacate the pubic property or remove the structure raised thereon after 7 days from the order under section 3 is duly served on him, he shall be evicted by force and the structure if any raised by such person on the public property shall be removed by force. The defendant in its written statement had nowhere pleaded that order under the Act was served upon the plaintiff. Rather, it is admitted that no order or notice was served on the plaintiff. The plaintiff witnesses have stated in their evidence that on 21-3-1996 the staff of defendant came to the premises and orally asked them to remove their articles and goods from the booths as they are to be demolished. Upon which, they immediately removed their articles and goods from the booths and thereafter the booths were demolished. In the case of Akhtar Alam v.
Shabbir (1992 CLC 95) a Division Bench of this Court has held that the service of order under the Act was a mandatory condition and the action taken by the authority without complying with this mandatory legal requirement was without lawful authority. It is established law that no action detrimental is to be taken by public authority against the citizen unless he is provided an opportunity of hearing as a requirement of principle of natural justice.
Neither order under the Act was served nor any notice was given to the plaintiff priOr to the deinolition of the booths. The action of the defendant of demolition of the booths was, therefore, illegal. Defendant has pleaded that it has undertaken to construct Liaquatabad flyover and the structures of the booths were coming within the alignment of flyover and therefore, were to be removed on top priority basis. The defendant has not produced any site-plan, sketch, map or drawing of the flyover to show that these booths were coming within the alignment of the flyover and, therefore, this fact remains unproved.
19. With regard to Issue No.6 it may be noted that the defendant has granted permission to the plaintiff for putting up advertisement booths on temporary occupation basis on payment of advertisement tax and land rent per annum. The purpose was for advertisement and such was also temporary. The plaintiff, in his evidence, has stated that after he has deposited the challans towards payment of advertisement tax and .Land rent, temporary construction was raised as per approved sketch of the booth and were allotted/ allocated to different individuals as licensees on usual terms and conditions in the year, 1975 and since then the occupants are carrying on their respective businesses in the said booths (display centers). Thus, according to the plaintiff himself, he has raised temporary construction as pre approved sketch but the plaintiff has failed to produce the approved sketch of the booths. Nevertheless, it is an admitted position that there were booths in the nature of temporary construction. The plaintiff, in his cross-examination, has admitted that he has not paid the land rent as well as licence fee in respect of the booths since after 1979 and has stated that the same were not demanded. In his cross-examination he has stated that the booths were pan shops, toy shops, tea shop. Etc. The plaintiff's witnesses in their evidence have stated that they were paying licence fee and maintenance charges of the booths to the owner until they were demolished by the defendant's staff on 21-3-1996. The witness Dawood in Suit No.364 of 1996 has stated that he was paying Rs.600 per month as rent to the plaintiff. The witnesses Ahmed and Abdul Shakoor in Suit No. 365 of 1996 have stated that they were respectively paying Rs.475 and Rs.400 per month as rent of their booths to the plaintiff. It may be noted that in the first place the plaintiff .Himself was a licensee of the defendant. The said permission did not allow the plaintiff, either to hand-over the booths on rent or on licence to some other person. It may further be noted that the booths were allowed to be put up only for advertisement purpose as "Display Centres". The admitted fact shows that such booths were not being used for advertisement purposes as display centers but were being used as pan shops, toy shops, tea shops etc. Although the plaintiff paid no money either as advertisement tax or land rent to the defendant since after 1979 but he kept on receiving rent from the occupants of the said booths until they were demolished by the defendant on 21-3-1996. The counsel for the plaintiff has stated that the land, on which the booths were put up, belong to the plaintiff. In the first place it may be noted that nowhere in the plaint the plaintiff has raised the plea that the land, on which the booths were allowed/permitted to be put up belong to the plaintiff, neither an issue struck nor any evidence has been led by the plaintiff on this point. The plaintiff has confined his co-ownership to the plots, on which the two buildings are constructed and has not stated anything about his ownership of the land on which the booths were permitted to be put up by the defendant. The letter of permission of the defendant itself shows that it will charge land rent and, such land rent up to the year, 1979 was paid by the plaintiff to the defendant. Had the plaintiff been owner of the land, on which the booths were permitted to be put up, he could have pleaded such fact in the plaint and on defendant challenging such plea, issue would have been struck and parties then led evidence. The record, however, clearly shows that the land, on which the booths were allowed to be put up, belong to the defendant, who have also charged Advertisement tax and land rent from the plaintiff and the plaintiff has also paid the same.
20. The record shows that the booths remained in existence until 21-3-1996 even though the plaintiff had paid the advertisement tax and land rent until 1979. There has been no extension in the licence from after 1979. The plaintiff being merely a licensee, by non-payment of licence fee and advertisement tax by the plaintiff after 1979, the licence by afflux of time came to an end of the existence of the booths became unauthorized. It has been held in the case of Raiz Ahmed v.
Government of Pakistan (2000 SCM R 1181) that the licensee had no vested right of 'holding perpetual licence to carry on its business. Licenses in law are always revocable.
21. It may be noted that the plaintiff has not produced any evidence or material about the expenses incurred by him in putting up of the booths. The plaintiff in his evidence has stated, that after he was permitted by the defendant to put up the booths, he has further licensed them to other persons to do their business in such booths and the occupants of the booths in their evidence have stated that they have been paying rent to the plaintiff for the booths until they were demolished on 21-3-1996. Whatever be the cost of construction of the booths, plaintiff must have recovered it from the rent received from the occupants. The plaintiff has admitted in his evidence that he had no articles or goods of his own in the booths and thus no loss or damage is suffered by the plaintiff on this account. Even the plaintiff's witnesses have stated that when the defendant came for demolition of the booths, it asked them to remove their goods and articles and they immediately took-away all their goods and articles and none of the witness has complained that any of their goods or articles were lost. Even if there be any such complaint, none of the witnesses have produced any evidence as. To what goods or articles were lost. Besides, these witnesses have not made any claim by becoming party to the suit nor is the plaintiff's case that he has paid any compensation to the occupants. The plaintiff claims damages of mental torture and agony. The question of mental torture and agony would have arisen had there been subsisting right of the plaintiff in the existence of the.Booths. The licenses for the booths stood expired in the year, 1979: Plaintiff himself did not obtain renewal of the licenses for more than sixteen years but enjoyed the benefits of the booths for all this period without paying anything to the defendant. The conduct of the plaintiff was not above board, therefore, no compensation for mental torture or agony can be considered.
22. As regards Issues Nos. 6 and 7, although, it is held that the action of defendant of demolition of the booths without order under the Act was illegal but as the licenses stood expired and plaintiff having produced no evidence of loss sustained by him, no relief as prayed can be granted to the plaintiff. Accordingly, both the snits are dismissed.