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Civil Revision No. 14 of 1974, decided on 2nd September 1974.

--- Ss. 2(28) & 7(2), (3) read with Baluchistan Government Gazette Notification No. 1-21/71 (L. G.) (1) dated 15th June 1971-Adminis trator, appointment of-Administrator appointed under Martial Law Order 2.4, dated 10-9-71-Continues to function, as such Administrator of Municipal Committee till constitution of People's Local Councils-- Municipal Committee, Quetta, constituted under Municipal Adminis tration Ordinance, having been dissolved, fresh Administrator appointed with powers to perform all functions of Municipal Committee, and such appointment being made by proper Government, viz., Provincial Government, Administrator, held, empowered to issue notice or otherwise take proceedings for demolition of unauthorised structures-Baluchistan People's Local Government Ordinance (I of 1972), S. 81(2).

----Ss. 84 & 85 - History of bye-laws re: control of hawkers and' squatters under Baluchistan Municipal laws.

---S. 3 read with Municipal Administration Ordinance (X of 1960), S. 4-Ordinance X of 1960 saving rules and regulations previously made and Ordinance I of 1972 similarly saving continuity of existing rules, previous rules regarding squatters kept intact and violation of same, held, empowered Administrator to take legal action.

Muhammad Ramzan v. Administrator, Municipal Committee p L D 1962 Lah. 358 ref.

---- S. 53 and Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2--- Temporary injunction---Balance of convenience-Petitioners unautho risedly constructing wooden cabins on public pavement in violation of Municipal rules-No question of balance of convenience in favour of petitioners entitling them to grant of temporary injunction, held, arose in circumstances.

-----Ss. 2(22) & 81(2) & (4)-Encroachment, removal of-Wooden plat forms and superstructures on public pavement erected and possessed by petitioners without licence - Encroachments on public street -Administrator of Municipal Committee entitled to remove such encroachments by notice and not liable to pay any compensation.

Sardar Mohammad and 4 others v. Municipal Committee, Jhelum City P L D 1974 S C 497 ref.

Basharatullah for Petitioners.

S. H. Jaffery and Mohammad Anwar Lahiri for Respondent.

Date of hearing: 8th August 1974.

This Revision Petition under sections 115, C. P. C. and 14 other similar Petitions Nos. 15 to 28 of 1974 arise out of appellate order of learned District Judge, Quetta dated 6-5-1974, whereby he dismissed their appeals by refusing the grant of interim injunction, he upheld order of learned Civil Judge, Quetta, dated 14-2-1974. As respondent in all petitions is Administrator, Quetta Municipality and same points of law are involved in all the petitions I propose to dispose them off by this single judgment.

2. Briefly the facts are that the petitioner has been carrying on business since 1968 on pavement of Thana Road, Quetta, under a Squatter's Licence. It appears that sometime prior to filing of the suits Municipality stopped the recovery of licence fee from the petitioners and required them to remove the wooden platforms and superstructures illegally constructed by them. The matter was taken up with Minister of Local Government by the parties but ultimately a direction was issued by him to Municipal Committee to .act according to Municipal law. Whereupon the respondent served notice on the petitioner and others under section 81(2) of the Baluchistan People's Local Government Ordinance alleging that they have contravened section 33 (items 12 & 13) of Schedule 3 of the Ordinance and as such they were required to demolish the superstructure within a week failing which .action would be taken under section 81(2) of the Ordinance against them. It was against this notice that the petitioner filed a suit for declaration and injunction praying for restraining the respondent to demolish the superstruc ture. Along with the suit he filed an application under Order XXXIX, rule 2, C. P. C. for interim orders, which were rejected by the learned Civil Judge and so was the appeal by the learned District Judge.

3. Along with the revision petition the petitioner has filed an application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. praying for interim order against the respondent till final disposal of the revision peti tion. As a legal point, with regard to jurisdiction of Civil Courts was involved, with their consent I heard both the learned counsel for the parties at length on the main petition as well as the Miscellaneous Application.

4. Mr. Basharatullah appearing for all the petitioners challenged the impugned order on the ground that the learned District Judge was not correct to hold that provisions of section 88 of Baluchistan People's Local Govern ment Ordinance was mandatory, he submitted that failure to give such a notice by the petitioner was of no consequence and that Martial Law Orders XXL and XXIV of 1971 were not properly construed by the first Appellate Court and that the power to direct demolition of the petitioners' Wooden Cabins vests only in the People's Local Council yet to be constituted under the Ordinance and that notice issued by the Administrator, Municipal Committee under section 81 of the Ordinance is void as he has no such powers.

5. With regard to merits it was submitted by the learned counsel that the petitioner came in possession of the portion of the pavement in his occupation under a valid Squatter's Licence and that at one time the respon dent agreed to construct a wooden cabin and then to lease it to the petitioner, this scheme however was later on dropped without any reason, therefore, according to the counsel it cannot be said that there was any encroachment on the part of the petitioner or there was any violation of Bye-laws, regula tions or rules of the Municipal Committee and that the balance of convenience lies in favour of the petitioner.

6. Mr. S. H. Jaffri appearing for the respondent on the other hand submitted that the very suit of the petitioner filed in the Court of Civil Judge, Quetta was not competent because the requisite notice under section 88 of the Baluchistan People's Local Government Ordinance, 1972 was not served by the petitioner to the respondent, as he failed to comply with mandatory provision of law, his main suit as well as appeal and the revision petition are incompetent. Section 88 is as under:--

"No suit shall be instituted against a People's Local Council or against any member, official or servant of a People's Local Council in respect of any act done or purporting to be done in the discharge of their duties, until the expiration of the month next after notice in writing has been, in case of a Council, delivered or left as its office and in the case of a member, official or servant, delivered to him or left at his office or the place or his abode, stating the cause of action and the name and place of abode of the intending plaintiff, and the plaint shall contain as statement that such notice has been so delivered or left."

7. On merits he submitted that the petitioner has built unauthorised immovable wooden construction (cabin) obstructing the road and thus respondent had a statutory duty to issue a notice under section 81(2) of the Baluchistan People's Local Government Ordinance, 1972 requiring the super structure demolished as it was encroachment within meaning of section 2(22) of the Ordinance and that the Administrator, Municipal Committee was competent authority to issue notice under section 81(2) of the Ordinance, 1972. Section 81 is as follows:---

"(1) No person shall make an encroachment, movable or immovable, except under a licence granted by the People's Local Council and to the extent permitted by the licence.

(2) Subject to the bye-laws, a People's Local Council may, by notice, require the person responsible for any such encroachment to remove the same within such period as may be specified and if the encroach ment is not removed within such period; the People's Local Council may cause the encroachment to be removed through its own agency 'and cost incurred thereon shall be deemed to be a tax levied on the persons responsible for the encroachment under this Ordinance.

(3) Whoever trespasses into, or is in wrongful occupation of a building or land which is the property of a People's Local Council, may in addition to any other penalty to which he may be "liable under this Ordinance, or any other law for the time being in force, after such notice, as may be prescribed be ejected from such buildings or land by the People's Local Council with such force as may be necessary.

(4) Notwithstanding anything contained in any other law, no compensa tion shall be payable for any encroachment removed or required to be removed under this section."

8. The contention of Mr. Basharatullah that the respondent Adminis trator of the Municipal Committee has no power to issue notice or otherwise take proceedings for demolition of the wooden cabins, has no force. Under section 6, prior to issuance of requisite notification, all urban and rural areas declared as such under Basic Democracies Order, 1959 and Municipal Admi nistration Ordinance, 1960 were allowed to be as such urban and rural areas under this Ordinance. Under section 7, subsections (2) and (3) of the Ordinance it is provided that so long as the People's Local Council are constituted in accordance with this Ordinance, the Administrator appointed under Martial Law Order No. 24 dated 10-9-1971 shall, notwithstanding the provisions of this Ordinance, continue to function as such Administrators of the respective People's Local Councils constituted by this Ordinance and further that the Government by notification in the official Gazette, specify the name by which a People's District Council or a People's Municipal Com mittee may be known. The Legislature was aware that these sections have been provided for the continuity of the Municipal Administrations until such time when elections under this Ordinance were held and People's Municipal Committee were elected, that is why, the Administrators appointed under Martial 1 aw Regulations referred earlier were specifically allowed by statute to continue and run Municipal Administrations. Not only this but the Government of Baluchistan by Gazette Notification No. 1-21/71(L.G.(l) dated 15th June 1971, dissolved the Municipal Committee, Quetta Constituted under Municipal Administration Ordinance, 1960 w. e. f. 22nd June 1971 The persons holding office of the Chairman was appointed as Administrator of the Municipal Committee until further orders and specifically empowering to perform all functions of the Municipal Committee. The notification further provided that the powers of the Chairman, Vice-Chairman and Muni cipal Committee under the Municipal Administration Ordinance, 1950 and the rules, regulations/bye-laws framed thereunder, shall be exercised by the Administrator. The learned counsel when confronted with this situation neither challenged the notification nor its legality. All he stated was that it was Central Government and not the Provincial Government who could appoint the Administrator. This argument again has no basis because the Government under this Ordinance is defined in section 2(28) as Government of Baluchistan therefore. It cannot be said that the notification with regard to appointment of Administrator has been issued by an incompetent authority. This argument of the learned counsel for the petitioner is repelled. Next point raised by the learned counsel was that, as admittedly no rules, regulations and bye-laws, have been framed under Baluchistan Ordi nance I of 1972, old bye-laws, rules and regulations framed under Quetta Municipal Law, 1896 or consolidating and amending Municipal Administration Ordinance, 1960 legally do not exist and cannot be put in service against the petitioner even if they have violated the terms and conditions of the Squatter Licence. I am afraid this argument equally has no force. Before I proceed further, a brief history of the bye-laws with regard to control of hawkers and squatters under Baluchistan Municipal Law may be given with some benefit. Quetta Municipal Law, 1896 was promulgated by a notification of the then Agent to the Governor-General in Baluchistan No. 6992 dated 15th of October 1896, Item XX at p. 18 of the book refers to a separate sub-heading as "Control of Hawkers and Squatters" and following bye-laws were published by Notification No. 158-8 dated 10th January 1923 Agent to the Governor----

(1) No one shall be allowed to work as a hawker in any part of Quetta Municipal limits unless he has applied for, and obtained a licence from the Municipal Committee.

(2) Such licence shall be issued on payment of Rs. 6 per year and shall be renewable yearly on 1st April.

(3) Such licence shall be liable to be cancelled if the owner of it is con sidered undesirable by the Municipal Committee or is found selling eatables unfit for human consumption, or articles, the sale of which is forbidden under any other rules.

(4) All hawkers plying their trade on hand-rehris within Municipal limits shall be required to obtain licence from the Municipal Committee on payment of Rs. 9 each per annum.

(5) No letter-writer, carpenter, fruit-seller, shoe-maker, barber, or other class of squatter shall be allowed to ply his trade on the berm of any road within Municipal limits unless he has first applied for and obtain ed a licence from the Municipal Committee.

(6) On approval by the Committee such licence shall be issued on pay ment of Rs. 12 per annum and shall be renewable yearly on 1st April

(7) No squatter shall be permitted to ply. his trade on the side berm of the following roads:

(1) Sandeman Road,

(2) Bruce Road,

(3) Roads around the New Markets, or

(4) All roads twenty feet wide or less.

(8) In the case of licence for hawker, rehri-hawker or squatter having been lost or destroyed a duplicate copy may be issued on payment of a fee of annas four per copy.

(9) When a licensed hand-rehri is to be transferred by a hawker to a new proprietor during the year of licence he should apply to the Municipal Secretary and after his approval the name of transferee shall be substituted in the licence for the name of transferor without further payment.

(10) A photograph of the licensee (hawkers and rehri-hawkers only) and in the case of transfer, of the transferee, provided at the applicant's expenses, be posted on each licence or its duplicate copy as the case may be."

9. Later on by a Notification No. 77-AM(43)II1 dated Quetta the 15th October 1943, the Resident for Baluchistan, however, framed new rules in Supersession of Notification No. 158-R, dated 10th January 1923, referred earlier concerning issue of licences and fixation of licence free for hawkers and rehri-hawkers within Municipal limits of Quetta Town. Under rule 2, a fee at the rate of Rs. 12 per annum was fixed for a hawker's licence and Rs. 24-4-0 per annum was fixed for a hawker's licence, the licences were to be granted by the Executive Officer on application personally to an applicant and were not transferred without permission to anybody else. It may be noted that under rule No. 7 no licensed hawker or rehri-hawker was allowed to sell or expose for sale vegetables and fresh fruit within a radius of 100 yards of the Municipal Vegetable and Fruit Markets nor on Bruce Road, Sandeman Road, Anderson Road and Mission Road. Under rule 8 licensed rehris were prohibited for selling vegetables or fresh fruit enter the Vegetable and Fruit Markets on any pretence whatsoever.

10. In March 1944, fresh rules with regard to squatters and hawkers were framed in Supersession of previous rules by the then Political Agent, Quetta Pishin Ex Officio Chairman, Quetta Municipal Committee which is as under:---

"No. 5(43) 1069 Trade.---In exercise of the powers conferred by section 45 of the Quetta Municipal Law and in Supersession of all previous orders on the subject, the Political Agent, Quetta-Pishin is pleased to prescribe the following conditions for the temporary occupation of roads and streets by squatters plying their Trade within Municipal Limits;

(1) No one shall be allowed to occupy any berm of any road or street and ply his trade as a squatter of any description for example, letter writer, carpenter, fruit-seller, shoe-maker or barber etc. except with the previous permission in writing of the Executive Officer, Quetta Municipality, which shall be issued in the form of a licence and shall indicate the exact site to be occupied by the licensee.

(2) Such permission may be granted on payment of an annual rental of Rs. 12 except in the following areas namely-.----

(1) Sundeman Road.

(2) Bruce Road.

(3) Roads around the new markets.

(4) All roads 20 feet wide or less.

(3) No squatter shall be permitted to erect any platform over any drain so as to cause obstruction to the same nor shall any structure of any' kind whatsoever be allowed to project over the street.

(4) The Executive Officer may cancel such permission at his discretion at any time, without assigning any reasons therefore.

(5) In the case of a licence having been lost or destroyed a duplicate copy may be issued on payment of a fee of annas four."

11. In the year 1946 the Crown Representative was pleased to promulgate the Quetta Municipal Law, 1946 in exercise of the powers conferred by. the Indian (Foreign Jurisdiction) Order in Council, 1937 for administration of he Quetta Municipal Committee repealing Quetta Municipal Law of 1896 but by section 194 it saves rules, regulations and bye-laws and orders made, in other words previous rules with regard to Squatter Licensees and hawkers were allowed to continue. Section 194 of Quetta Municipal Law is as under :---

"Repeal and saving.----The Quetta Municipal Law, 1896 is hereby repealed;

Provided that the Municipality Constituted Committee established, limits defined, appointments, rules, regulations, bye-laws and orders made, any Town Planning Scheme draw up and sanctioned, notifications and notices issued taxes, cases, rates and fee imposed, or assessed, rates recovered, contracts entered into, suits instituted and all acts and things whatsoever done under the said law shall, continue in force and operation and be deemed to have been . respectively constituted, established, defined, made, drawn up and sanctioned, issued, imposed, or assessed, recovered, entered into, instituted and done under this law until superseded by appropriate action under this law."

Admittedly Quetta Municipal Law, 1946 was repealed by Municipal Adminis tration Ordinance, 1960 which came into force on 11th April 1960. This was an amending and consolidating law made applicable to the entire West Pakistan. After dissolution of West Pakistan and creation of four different provinces the Government reverted to the practice prior to 1960 and Baluchistan People's Local Government Ordinance, 1972 was passed. Section 4 of Municipal Administration Ordinance, 1960, the repealing and saving section, does not affect the rules, regulations and bye-laws made, and notifications issued prior to the Ordinance, unless they were inconsistent with the Ordinance. In other words in absence of fresh rules with regard to squatters the existing rules were allowed to continue. Section 4, is as' under:-

"On the coming into force of this Ordinance in any area, the enactments mentioned in the First Schedule shall, if and in so far as applicable to that area, stand repealed.

(2) Where an enactment stands repealed under subsection (1), any appointment, rule, regulation, or bye-law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance and the rules, be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance."

In P L D 1962 Lab. 358, this clause came for interpretation and it was held "that the saving clause of this section means that the old assessments were to continue till legally altered but did not mean to invest the officers of the Municipality with a power to carry out a fresh assessment as long as .new rules were not framed. Similarly the bye-laws made by a Municipality under sections 197 and 199 of the Punjab Municipal Act, 1911, were held to be bye-laws under the relevant provisions of the Municipal Administration Ordinance by virtue of the saving clause of this section".

12. Apart from the above the provisions of section 3 of Baluchistan People's Local Government Ordinance, 1972 saves the continuity or' the existing rules, regulations and bye-laws, in other words, I am of the opinion that it does not effect, whatsoever, the rules with regard to squatters, section 3 His as under:---

"(1) On the commit into force of this Ordinance the following enactments shall stand repealed:- -

(i) Basic Democracies Order, 1959 (President's Order 18 of 1959).

(ii) The Municipal Administration Ordinance, 1960 (Ordinance' X of 1960).

(2) Where an enactment stands repealed under subsection (1) any appoint ment, rule, regulation, scheme or bye-law made, notification, order or notice issued, tax imposed or assessed, contract entered into, suit instituted or action taken under such enactment shall, so far as it is not inconsistent with the provisions of this Ordinance be deemed to have been respectively made, issued imposed or assessed, entered into, instituted or taken under this Ordinance until superseded under this Ordinance'."

I am, therefore, clearly of the view that the rules with regard to squatters still continue to apply and any violation of the same empowers the respondent to take legal action against the petitioners.

13. As to the merits learned counsel for the petitioners has conceded during the course of argument that if the respondent has power to issue notice the petitioners have no case. In other words, it was admitted that the wooden cabins and superstructures were built without any specific authoriza tion of the respondent which the petitioners under the law could not do. The question of balance of convenience in the present case does not arise because admittedly the petitioners have no power under law to construct wooden cabins on a public pavement on violation of the terms and conditions of the squatter -rules referred earlier, therefore, notices were issued by the respondent. I see no flaw in the impugned judgments of the learned District Judge and Civil Judge, Quetta.

14. A half-hearted argument by the counsel for the petitioner that the construction of wooden platform and superstructure on the public pavement cannot be an encroachment under the laws applicable, particularly so, when once a Minister had interfered and a scheme was prepared by the respondent to construct wooden cabins and to lease out to the petitioners. Now the interference of a Minister or preparation of a scheme by the respondent which admittedly has not materialized nor any such scheme was shown to be in Court does not by itself authorise the petitioners to violate the statute and the rules thereunder because they are equally bound by law. The word encroachment' is defined in section 2(22) as under :----

" Encroachment' means unauthorised occupation of land, building or place, whether temporary or permanent, or occupation of part of public street, public road, public place, public way, public graveyard, bridge, drain, plot or open space belonging to Government or vesting in-a People's Local Council and includes encroachments on, over or under these."

The mere reading of this definition couple with admissions on behalf of the petitioners that wooden platforms and superstructure have been made by the petitioners and they are doing business there, goes to show that such construc tion on the public pavement without a licence cannot be otherwise than an encroachment on a public street, which the respondents are entitled to be removed by notice under section 81(2) of the Baluchistan People's Local Government Ordinance, 1972 under which action in fact has been take against the petitioners.

15. In Sardar Mohammad and others v. Municipal Committee, Jhelum City (PLD1974SC497) more or less the same question has arisen where the plaintiffs had -constructed certain platforms with permission of the defendants when the Punjab Municipal Act, 1911 was in force and these platforms remained in existence for 25 years and it was argued by the counsel that the petitioners have vested right to receive compensation when the platforms were demolished by the Municipal Committee and secondly it was argued that under sub section 12) of section 83 of the Municipal Ordinance, 1960 only those encroachments can be removed which were made after promulgation of Municipal Administration Ordinance, 1960. Both these arguments were repelled by their Lordships by holding that the plaintiffs' (as in the present case) licences were renewable from year, to year and under the bye-laws which were terminable on notice. They could not, therefore, claim compensation for removal of the platforms constructed by them or their predecessor-in -interest on the public street even with permission of the defendants. It was further held that though the right to receive compensation was created by the Punjab Municipal Act, 1911, but it has been taken away expressly by the Municipal Administration Ordinance, 1960.

16. It may be seen that in the present case admittedly, the petitioner has no licence whatsoever to build wooden cabins although in the case cited they were permitted by the respondent. Yet it was held that they were not entitled even to compensation because Municipal Administration Ordinance, 1960 has expressly taken away such rights. The same position holds good under Baluchistan People's Local Government Ordinance, 1972 under section 81(4) wherein it is provided that notwithstanding anything contained in any other law, no compensation shall be payable for any encroachment removed or required to be removed under this section.

17. For the reasons given above, I see no force in the Revision Petitions which are hereby dismissed. As the petitioners are petty cabin-holders I pass no order as to costs.

S. A. H. Petitions dismissed

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