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Constitution Petition No.667 of 1987, decided on 19th August, 1987.

---S.114--Constitution of Pakistan (1973), Art. 199---Constitutional petition--Petitioner setting up his school on amenity plot in Katchi Abadi on plea that plot was allocated for educational purpose and also residents of area reserved said plot for school purpose--Documents relied upon by petitioner not showing positively that occupation of plot by petitioner was lawful and only showing that a school was set up by him but question whether land had been acquired in a lawful manner still remained 'to be decided--Impugned action of respondent by which notice was issued to petitioner for vacating plot for constructing College thereon having cover of law--Forum of appeal available to petitioner against impugned notice--Interference declined in constitutional jurisdiction in circumstances.

Malik M. Said for Petitioners.

A.R. Kazi, A.A:-G. and Muslim Naqvi for Respondents.

Respondent No.7 in person.

-Impugned in this petition is notice dated 4-6-1987 issued by respondent No.3 namely Project Director (Orangi Town) KMC, whereby petitioners society is called upon to vacate portion of plot No.19-A, Sector II 1/2 Orangi Township measuring about 1398 sq.yds. whereupon school building has been constructed unauthorisedly. Petitioners are further informed- by the same notice that plot No.19-A has been allotted to Directorate of College Education, Karachi for construction of Government College. Petitioners have prayed in the petition that allocation of approval by respondent No.1 namely Administrator, K.M.C. to build a college at the behest of respondent No.7 namely Afaq Khan Shahid through respondent No.6 namely Director Katchi Abadi is collusive, mala fide and without lawful authority and have sought permanent injunction against the same.

The case of the petitioners is that Syed Sulaiman Nadvi Educational Society is a registered society and constructed a school building on plot No.19-A, Sector 11 1/2 Orangi Town admeasuring about 7600 sq.yds. which was lying vacant. Residents of the area selected the plot and reserved it for school and subsequently this plot was allocated in the Orangi Township Scheme for educational purpose and has been shown in approved plan. Foundation stone was w laid by the then SDM Nazimabad Mr.Shafiqur Rehman paracha on 20-6-79 and after the construction of the school on portion of that plot, area council recommended that the plot be allotted to Syed Suleman Nadvi Educational Society. It is further submitted that the petitioners society remained in continuous and undisturbed possession of the plot and applied to the Directorate Katchi Abadi for allotment/ lease of the land. It is also claimed that around the school built on the same plot, there is boundary wall made of stones. It is submitted on behalf of the petitioners that their Institution is recognised by the Director of School Education, vide his letter dated 14-12-86 and further the Board of Secondary Education has recognised the said institution and students have been appearing in S.S.C Examination. Further, claims are made 'that Mr. Hasib Hashmi M.P.A. of the area recommended for water connection, and K.M.C. provided .the water connection and K.E.S.C. provided the electricity. Grievance is made that in Daily 'Nawa-e-Waqt" dt. 27-4-86, a tender was published inviting offers for construction of College on the building of the said plot and the petitioners found out that proposed construction of the college was to be made from the funds which have been placed at the disposal of respondent No.7 namely Mr. Afaq Khan Shahid, M.N.A. It is submitted on behalf of the petitioners that College be proposed to be constructed on some other amenity plot but not on the portion of plot which is in the occupation of the petitioners.

Respondents impleaded in the petition from Nos.1 to 3 are Administrator, K11C, Chief Engineer, KNIC and Project Director (Orangi Town) KNIC. Respondent, 4 and 5 are Director of Colleges, Government of Sind and Assistant Director (Dev.) Rural Development Department, Government of Sind. Respondent No.6 is Director, Katchi Abadi, who has been mis-designated as director General, Katchi Abadi. Respondent No.7 is Mr.Afaq Khan Shahid. M.N.A. On behalf of respondents 1,2 and 3, who are functionaries of KMC, Joint Counter affidavit has been filed in which stand is taken that petitioners are neither lessees nor licencees of the plot in question and the same has been occupied by them unauthorisedly. It is further submitted, that actual area in illegal occupation of the petitioners is 1398 sq.yds. and the petitioners neither applied for grant of land nor they have been permitted to occupy the said portion of the land. Petitioners illegally and unauthorisedly made some rooms for school over the said portion under the shelter of permission letter from Directorate of School Education Karachi Region and the said permission does not confer any title on the petitioner for occupation of Municipal land. It is further submitted that neither the Chairman, Katchi Abadi nor any other person was authorised to allot or lease any plot to any individual or Institution a powers to grant lease in such cases are conferred upon the Council and Government as contemplated under section 45(5) of the Sind Local Government Ordinance, 1979. Plan of plot No.19-A duly attested by Assistant Director Land (Lease) Orangi Township KMC has been produced which shows that in the plot in question a portion of 1398 sq.yds. is in occupation of the petitioners and the rest of the plot admeasuring 6138 sq.yds. is lying vacant which has been earmarked for construction of College by Directorate of Collage Education for which the funds would be provided by Mr.Afaq Khan Shahid. In this connection, Director Katchi Abadi, KMC has also issued no objection for utilization of area of 6138 sq.yds. which is lying vacant on the said plot in front of School which is in occupation of the petitioners. Necessary administrative approval of Ministry of Local Government and Rural Development has been obtained in respect of scheme sponsored by Mr. Afaq Shahid including the construction of school at the said plot for which funds to the tune of Rs.85,6000 have been credited in KMC account for financing four schemes including the construction .of college at the afforesaid plot.

Petitioners have produced a large number of documents alongwith their petition but these documents only show the school has been constructed on part of the plot in question and these are the documents which relate to the correspondence between the petitioners and various other Departments. In any case these documents do not show positively' that occupation of the plot in question by the petitioners was legal and lawful. These dovainents cannot be relied upon to set up flawless title. At the most some of these documents only show that school has been set up by the petitioners but still the question remains whether the plot in question has been acquired in a lawful manner or not.

Mr. Muslim Naqvi, counsel for respondents Nos.1 to 3 has --submitted that whole area in which sector 11 1/2 is situate is declared a' Katchi Abadi. He has invited our attention to MLO 183 which lays down procedural law for regularization of Katchi Abadees. According to Section 3(5) of the said MLO, declaration of any area to be Katchi ,ikbadi shall not confer any right on any person in occupation in Katchi Abadi. Section 4 thereof provides that amenity plot cannot be declared as Katchi Abadi. It is further submitted by him that in the instant case, plot in question being amenity plot could not be declared as Katchi Abadi. Impugned notice has been issued under Section 114 of the Sind Local Government Ordinance, 1979. This notice is issued by the Project Director and if the petitioners feel aggrieved against this notice then remedy by *way of appeal is open to them as is contemplated under section 108 of the Local Government Ordinance, 1979 read with rule 4 of Sind Council (Appeals) Rules 1982 and this appeal will lie now before Mayor/ Administrator.

During the hearing of the petition, Nazir was appointed as Commissioner to go to the site for inspection, which was necessitated because of opposite claims made by the petitioner on one side and respondents on the other about measurement of area in occupation of the petitioners and existence of boundary wall and he has submitted report dated 18-8-1987 in which area is mentioned upon which petitioners have raised school which is on the portion of plot 19-A and with regard to the claim about the boundary wall it is stated by the Nazir that the boundary wall is in existence but in parts only as somewhere there is boundary wall made of stones 5' high and at some places it is 3' high and at some places it is 1 foot or less and at some places there are no stones at all and further there is no gate fitted on any side of the plot.

From the documents produced by the respondents it appears that college is proposed to be constructed not on the portion which is in actual occupation of the petitioners but on the portion of plot N0.19-A which is not in occupation of the petitioners. Since petitioners have failed to produce satisfactory evidence to support occupation of pilot in question to be legal and lawful and impugned action of the respondents including proposed construction of college has complete cover of law, no interference is called for in writ jurisdiction particularly when forum of appeal as stated above is available to the petitioners. In the result, this petition is dismissed in limine.

M.Y.H./S-113/K Petition dismissed.

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