ORDER SHEET
IN THE HIGH COURT
OF SINDH, KARACHI
C.P. No.D-5485 of 2015
Date Order with signature of Judge
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14.09.2015.
Mr. S. Shah Hussain Shah Tirmizi, Advocate for the
petitioner.
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1. Urgency
granted.
2. Exemption
is granted subject to all just exceptions.
3. The
instant Constitutional Petition has been filed with the following prayers:
1. To order the
respondents No.1 to 6, not to dismantle the demised premises bearing House
No.F-34, Near Zinda Peer Mazar, Kalapul Karachi without amicable settlement
with the petitioner or making alternative arrangements for his abode without
due course of law. More so, the request of the petitioner and his deceased
father even which was being agitated for the last more than sixty years be
finalized and the land be allotted to the petitioner for opening firewood stall
to facilitate the lifelong needs of wood of the people living in the area as
well as the families of the railway employees even, who have been also
struggling for the last sixty years along with the petitioner.
2. To restrain
the respondents, their managers, agents, associates, employees, workers and
persons working for them and on their behalf not to evict, dispossess from the
house bearing No.F-34, Near Zinda Peer Mazar, Kalapul, Karachi, without due
course of law till the decision of this petition.
3.
Any other relief or reliefs which this Honourable Court
may deem fit and proper under the circumstances of the case.
Briefly stated, the facts of the case
are that it is claimed that the petitioner’s father was an occupier of House
No.F-34, Near Zinda Peer Mazar, Railway Colony, Karachi
Cantt. and after his death the petitioner and other
family members are residing in the said house. The petitioner’s father moved some
applications to the respondents for giving him the permission to run a firewood
stall and after his death, it is claimed by the petitioner that the said
firewood stall may be leased in his name. It is stated that the case of the
petitioner was recommended by the Ministry of Railways
to grant him lease but the official respondents are now bent upon to dismantle
the said stall by seriously prejudicing the petitioner. It is stated that a
number of applications were given by the petitioner to the respondents which
though were considered but lease was not issued in his name and hence
thereafter when left with no alternative the instant petition has been filed.
Mr.
S. Shah Hussain Shah Tirmizi Advocate has appeared on behalf of the petitioner
and has reiterated the above facts and submitted that there is no firewood
stall in the vicinity and if the petitioner is allowed to open the said stall,
it will facilitate the people living in the vicinity and it will also help the
petitioner and his family members to earn a living, since the said stall is the
only source of earning of the petitioner. The learned counsel
further requests that the respondents may be directed to issue lease in favour
of the petitioner and not to dismantle the said stall.
We
have heard the learned counsel at some length and have also perused the record.
We
specifically asked a question from the learned counsel to show us any document
whereby the said stall was opened after taking permission from the concerned
authorities, to which the learned counsel candidly replied that there is no approval
however submitted that a number of applications were given to the respondents
in this regard and the case of the petitioner was also recommended by the
Ministry of Railways for taking a lenient view. Attention of the learned
counsel was invited to page -41 of the file wherein it has categorically been mentioned
that the petitioner or his late father were in unauthorized occupation of the
railway land. The learned counsel conceded that the petitioner does not have
any legal permission to occupy the said stall
however submitted that the petitioner is occupying the said place since
decades, hence, the respondents may be directed to lease the said stall in his
favour.
Perusal of the documents available on
record would reveal that a number of letters were written by the respondents to
the petitioner that he is an unauthorized and illegal occupant of the said land
and had directed him to vacate the same. Though the petitioner’s father and the
petitioner made a number of requests to the respondents for granting them lease
but equally true is the fact that not a single
document is available with the petitioner to show any legal authority vesting
in the petitioner or his late father with regard to ownership of the stall. Though
on the record the matter of the petitioner was recommended by the then Minister
for considering the case of the petitioner by taking a lenient view but the
question is, does the Minister has the power to authorize any person, who is
admittedly an illegal occupant, to occupy something unauthorizedly? We are
sanguine that the answer to this question would be in negative.
It is also an admitted position that
the petitioner at no point of time has been able to prove the occupation of the
said stall through valid and legal documents and has always termed himself to
be an occupier, meaning thereby that the petitioner’s father had occupied the
land, opened a stall and thereafter applied for granting him a lease. It has
categorically been stated in the letter dated 15.08.1987, written by the Divisional
Superintendent (Pakistan Railways), that the land of which lease is being
sought by the petitioner cannot be granted since the said land is being
licensed out to retired railway employees, widows of deceased railway employees
and disable retired railway persons only and the petitioner admittedly does not
fall in any of the above categories.
In view of the above admitted facts,
we have come to the conclusion that since the petitioner has no title document
in his possession with regard to occupation of the said firewood stall, this matter
pertains exclusively between the petitioner and the respondents and no
interference in this regard could be made by this Court. This petition,
therefore, stands dismissed in limine being devoid of merit along with the
application listed at serial No.4.
JUDGE
JUDGE