1998 CLC 1099




Per Faqir Muhammad Khokhar, J.

(a) Constitution of Pakistan, 1973 Preamble and Articles 2A, 9 & 199

I have heard the learned counsel for the parties at length. I find that despite the subsisting interest of the petitioners they cannot resist the project of construction of overhead bridge and the road in the larger public interest. The land in question belongs to the Federal Government over which the petitioners had either raised the construction or had occupied the already existing buildings/houses etc. they have been residing in the places in dispute for quite some time. Necessary civic amenities were also provided to the petitioners by the official authorities. They would, therefore, be entitled to be provided compensation/rehabilitation in accordance with law for uprooting them of their present places of abode. A proper compensation/rehabilitation will have to be assessed/worked out by the State for the occupants in accordance with law within reasonable time. The petitioners and other have to be ultimately provided with alternate places suitable for human dwelling as they are being forced to shift to Sansi Quarters where fifty families of these localities have already settled for the time being. The question as to whether or not these colonies/abadis were declared or treated as Katchi Abadis is not very much material or significant in these cases. Even if these abadis have not been declared to Katchi Abadis for want of consent of the Federal Government as required by subsection (2) of section 6 of the Act still the State is under obligations to look after its citizens for promoting the social justice as guaranteed by Article 2A of the Constitution of Islamic Republic of Pakistan, 1973. The public functionaries are not absolved of their Constitutional and other obligations towards these affectees.

Article 9 of the Constitution of Islamic Republic of Pakistan 1973 guarantees a fundamental right of a person not to be deprived of life and liberty save in accordance with law. I think the right to life includes the right to live with basis human dignity and all that goes alongwith it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading and writing, etc. The minimum needs of existence also flow from the right to life. The Constitution itself is a document of social contract of the nation. To seek justice is the right of the weakest. The social injustice anywhere s to be viewed as a threat to justice everywhere. The affectees /occupants of these abadis cannot, therefore, be treated just as ordinary encroachers/tres-passers or a scheduled caste. Their interests have to be protected by the State functionaries.
Since the disputed land underneath the houses of the occupants admittedly belongs to the Federal Government/Pakistan Railways, the same can be utilized for carrying out the project in question without any further delay in the interests of collective public good. Even in a case of properly declared/established Katchi Abadis, the shifting of their occupants can be made under section 8 of the said Act to which no exception can ordinarily be taken. It is now well-settled that even the personal fundamental rights have to be subordinate to the larger public interest/rights of the Society. See the case of Karachi Building Control Authority and another v. Saleem Akhtar and 2 others 1993 SCMR 4151. In my view it would cause greater harm to the general public if the project of construction of overhead bridge and the roads is not allowed in order to save the petitioners from any hardship or inconvenience. The writ jurisdiction is a discretionary relief which is not granted or refused on technical grounds or as a matter of course regardless of the consequences. See the case of Federation of Pakistan v. Haji Saifullah Khan PLD 1989 SC 166. The petitioners may, therefore, be allowed to shift to the place known as Sansi Quarters within thirty days.

The Federal Government/Pakistan Railways, the Provincial Government, the L.D.A. and the other relevant Departments/Agencies shall work out a scheme/policy within sex months for proper rehabilitation/compensation for petitioners and their effectees/occupants of these abadis.
For the foregoing reasons these writ petitions are dismissed in limine but with the observation/directions above. [pp. 1102 & 1103]A, B, C & D

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