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Petitioner: Muhammad Zahid and others VS Respondent: Province Of Sindh through Chief Secretary and others
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Gulzar Ahmed, Qazi Muhammad Amin Ahmed Title:Muhammad Zahid and others vs Province Of Sindh through Chief
Secretary and others Case No.:C.M,As_Nos. 849-K of 2020 and 423-K of 2021 in Constitution Petition No. 9 of 2010 Date of Judgment:2022-01-28 Reported As: 2022 SCMR 528 Result: C.M.As. dismissed Judgment ORDER IJAZ UL AHSAN, J.---Mr . Anwar Mansoor Khan, learned Sr. ASC for the applicants (owners of marriage halls) has filed an application by way of C.M.A. No. 849-K as intervener on 28.10.2020 in which the judgment was reserved on 09.04.2021. Similarly , an application by way of C.M.A. No.423-K of 2021 has also been filed on 20.03.2021 by Mr. Faisal Siddiqui, ASC, in which the judgment was also reserved on 14.06.2021 (along with that of C.M.A. 849- K). 2. The applications were filed as C.M.As. in the case of Niamatullah Khan v. Federation of Pakistan and others (Constitutional Petition No. 09 of 2010). However , we had decided to take up the matter of illegal marriage halls in Karachi as a separate issue and thus, reserved judgment in the above C.M.As. 3. The applicants/interveners have made the following prayers in C.M.A. 849-K/2020 in the Matter regarding demolishing of illegal marriage halls on the main road near Korangi Crossing just opposite the Judicial Complex and District Courts Karachi, which are constructed on residential plots and on encroached lands: i... ii. Suspend the impugned administrative direction passed by the Honorable Chairman of the Administrative Committee contained in letter dated 17.10.2020 issued by the Deputy Registrar of Honorable Supreme Court of Pakistan at Bench of Karachi Registry till final disposal of instant appeal. iii. Restrain the respondents from demolition of the Applicants/ Interveners marriage hall/Garden till final adjudication of the present Petition/Application. iv. Quash/Set aside/Recall the impugned administrative direction passed by the Honorable Chairman of Administrative Committee contained in letter dated 17.10.2020 issued by the Deputy Registrar of Honorable
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Supreme Court of Pakistan at Bench of Karachi Registry as the same is gross violation of Articles 4, 9, 10-A, 18, 23 and 24 of the Constitution of Pakistan v. Any other or additional relief as this Hon'ble Court may deem fit and proper in the circumstances of the case." 4. The issue before this Court is whether the Marriage Halls of the applicants/interveners on main Korangi Road are liable to be demolished pursuant to earlier orders passed in Constitution Petition No.09 of 2010 and the connected petitions related to Marriage Halls, by this Court, whereby the Court had directed the Building Control Authority to remove all encroachments and unlawful buildings/marriage halls constructed on residential properties. 5. The brief facts giving rise to the present controversy are that the applicants/interveners are the owners of marriage halls located on Main Korangi Road, Karachi which were purportedly allotted to them by Dar-us-Salam Cooperative Housing Society and Lucknow Housing Society Korangi, Karachi (hereinafter referred to as "Marriage Halls"). Details of the Marriage Halls have been sufficiently provided in C.M.As. 849 and 423-K. The Applicants/Interveners received a common notice dated 23-10-2020 stating that the Marriage Halls were illegally constructed on the land in question. They were further directed to vacate the same within 03 days failing which they would be summarily evicted. The Applic ant/Interveners vide reply dated 27-10-2020 claimed to be bona fide purchasers. This was pursuant to directives of this Court during a meeting of its Administrative Committee held on 17-10-2020 at Karachi wherein the Commissioner , Karachi was inter alia directed to demolish illegal marriage halls. Against the common notice dated 23-10-2 020, the Applicants/Interveners on 31-10-2020 filed a Civil Suit before the High Court of Sindh at Karachi which was fixed for hearing on 02-11-2020. The learned Counsel for the SBCA presented a copy of this Court's order dated 22-01-2019 whereby it was ordered that encroachments from all plots which were originally meant for residential purposes, amenity plots and playgrounds, be removed and the said plots be restored to their original condition(s). The matter was then fixed before this Court for submission of a report by the SBCA, on 06-11-2020. Given these facts, the learned High Court of Sindh passed granted an injunction in favour of the Applicants/Interveners till 06-11-2020. The Applicants/Inte rveners by way of their C.M.As. have sought to become parties to Constitutional Petition 09/2010 in which the original order , inter alia, for removal of encroachments was passed by this Court. 6. Learned counsel for the Applicants/Inte rveners contends that the marriage halls/lawns were built on empty and barren plots about two decades ago so that the land in question could be saved from encroachers/land mafia. They state that they were pressurized by the Housing Societies to construct boundary walls thereupon. As such, to save the land from land-grabbers, they "had to" take physical possession of the land by constructing marriage halls thereupon since the land in question could not have been saved merely by constructing boundary walls. The learned Counsel adds that there was only one available option to keep physical possession of the land and that was to construct marriage halls to ensure physical manned occupancy . The Applicants/Interveners concede that at the time of construction of the Marriage Halls; the Karachi Master Plan prepared by the Master Plan Department of the Sindh Building Control Authority (hereinafter referred to as "SBCA ") did not have any provision for marriage halls. The learned ASC states that it was after a significant rise in Karachi's population that 1000 marriage halls were built. Thereafter , the Sindh Regulat ion and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 (hereinafter referred to as "SRCO, 2002 ") was introduced. Under the SRCO, 2002 one-time regularization could be allowed by the SBCA. This was subject to the condition that there would be no violation of sections 5(a), (b), (c), (d) and (e) of the SRCO, 2002. The learned ASC further argued that the Applicants/Interveners applied to the Master Planning Department of the SBCA seeking conversion of the said land. The Master Planning Department then issued notices to all those who were concerned seeking public objections and received none. Further that the Applicants/Interveners have paid various amounts to the competent authority where after, their lands in question were given NOCs to 4establish the marriage halls. It has further been argued that the demolition in question was ordered pursuant to an administrative decision taken during a meeting dated 17-10-2020 of the Administrative Committee of this,Court at its Karachi Registry . As such, it being an administrative decision did not have consequences like that of a judicial order of this Court. 7. On 28.08.2017, the SBCA issued an advertisement in various newspapers inviting the public to make applications for conversion of their Residential Plots into commercial/marriage halls per SRCO, 2002 (hereinafter
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referred to as "Advertisement "). The Applicants/Interveners allege that pursuant to the Advertisement, payments were made for the regularization of the plots in question. Each one of the Applic ants/ Interveners applied to the Master Plan Department of the SBCA, seeking conversion of the land after having sought a No Objection Certificate (hereinafter referred to as "NOC ") from the Housing Authorities. No letter of regularization was issued and no progress in this regard was made by the authority . 8. The Advertisement was issued according to a notification dated 13.07.2017, issued by the SBCA in the exercise of powers under section 21-A of the Sindh Building Control Ordinance, 1979 (hereinafter referred to as "SBCO, 1979 "). SBCA framed a policy framework of marriage lawns etc. Under the said policy , it was provided that Residential Plots could be converted into marriage halls provided certain mandatory conditions were fulfilled by the applicants. Under the policy in question, the SBCA was inter alia required to ask Union Councils of the respective localities to invite objections from the public in respect of the plots, the use of which was to be converted from residential to commercial. It is contended by the applicants/interveners that no such objection in this respect was received. The applicants/interveners were then required by the SBCA to pay conv ersion and other charges stated to be conversion fee, Town Planning Security Fee and KW&SB Fee. Resultantly , their land would stand converted and regularized. 9. During arguments, it was brought to our notice that on the promulgation of the Local Government Ordinance, 2002, by the sindh Development Authorities (Repeal) Ordinance, 2002 (hereinafter referred to as "Repeal Ordinance 2002 "), the Karachi Development Authority Order , 1957 (hereinafter referred to as "KDA Order , 1957 ") was repealed.. As such, a doubt was created whether this KDA Order , 1957 is valid law or not. Learned Sr. ASC for the applicants/interveners has filed a written synopsis of his arguments in this respect stating therein that, through the Karachi Development Authority (Revival and Amending) Act 2016 (hereinafter referred to as "Revival Act, 2016"), the KDA Order , 1957 was revived with effect from 1st July 2002. He thus, argues that the KDA Order , 1957 is valid law. He also argues that the functions of the KDA have been merged with a department of the SBCA and thus, powers exercisable by it under the KDA Order , 1957 are to be exercised by the SBCA. 10. We have heard the learned ASC for the Applicants/Interveners and have, perused the record. The issues which fall before this Court for adjudication are as follows:- (i) Whether the decision of this Court in the meeting dated 17-10-2020 of its Administrative Committee have consequences akin to a judicial decision? (ii) Whether the marriage halls in question could be built upon the land in question? (iii) W as the KDA Order valid law and the consequences thereof? WHETHER THE DECISION OF THIS COURT IN THE MEETING DATED 17-10-2020 OF ITS ADMINISTRA TIVE COMMITTEE HA VE CONSEQUENCES AKIN T O A JUDICIAL DECISION ? 11. It is an admitted fact that the Administrative Committee of this Court convened at its Karachi Registry on 17-10- 2020 (hereinafter referred to as "Meeting "). During the Meeting, it was inter alia directed by the Chief Justice of Pakistan that all illegal marriage halls be demolished. We have on record the minutes of the Meeting before us, the relevant excerpt of which reads as follows: - "Besides above, the Hon'ble Chairman asked the Commissioner Karachi to demo lish illegal marriage halls on the main road near Korangi-Crossing just opposite the Judicial Complex and District Courts Korangi which are constructed on residential plots and on encroached lands in the whole of city in compliance with orders passed in Constitutional Petition No.09/2010 and such compliance report shall be steed in the said petition. Hon'ble Chairman further directed that there should be parks for recreation of citizens in the city for his court has already passed several orders and remove the encroach ments in compliance with orders of this. Court. In case of failure, strict action/proceedings will be initiated against all the concerned authorities." (Underlining is ours) A perusal of the aforenoted excerpt of the directions of the Honourable Chairman of the Committee given during the Meeting establish that the said directions were given by the Chief Justice of Pakistan to Commissioner Karachi in furtherance of the order passed by this Court in Constitutional Petition No. 09/2010. The said directions were not fresh directions, rather , were issued to ensure enforcement and implementation of an earlier judicial order of this Court passed in C.P. No. 09/2010, which the concerned functionaries were even otherwise under a constitutional
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obligation to enforce and implement in terms of Article 190 of the Constitution, which obligation they had clearly failed to fulfill. There is nothing in the law that prevents this Court to hold administrative meetings with concerned agencies/functionaries to ensure that orders passed in public interest are being implemented. It is an undeniable fact that the State of Pakistan is based on the principle of trichotomy of powers. This means that it functions on the principle of separation of powers of the three organs of the State i.e., the Executive , Legislature and, the Judiciary . It is, inter alia, the function of the Court to interpret the law and pass a judgment on a particular set of facts. The said judgment then must reach its conclusion by being executed and implemented. If a judgment of the Court is not executed without reason, it has the effect of stagnating the law and in effect, impeding the system of administration of justice. It is for this reason that this Court oversees its proceedings and their end result, especially those under Article 184(3) owing to their nature and, due to the questions of public importance involved therein. As such, the directions issued in the Administrative Meeting were meant to oversee proper and timely implementation. 12. The functions exercised by the Executive are to be exercised by the Executiv e alone. Nonetheless, there are certain executive functions that organizations have, including but not limited to its administration. As such, this Court has certain administrative powers vested with its Registrar who is the executive head of this Court, performing any functions assigned by the honourable Chief Justice of Pakistan, required by the Supreme Court Rules, 1980. In absence of the Registrar , the said powers vest, as per Rule 3, Order III of the Supreme Court Rules, 1980, with the Additional Registrar or Deputy Registrar or Assistant Registrar . This does not mean that this Court has the power to encroach upon the functions of the Executive. The executive functions of this Court inter alia include implementation of its orders and require executive functionaries to do so as per requirements of Article 190 of the Constitution. This is so because the primary function of this Court is the adjudication of different matters placed before it. Therefore he administrat ion of this Court requires that the implementation of this Court's orders is overseen. It must be noted that the orders passed by this Court in the present mater as well as in Constitutional Petition No. 09/2010 were under Article 184(3) of the Constitution of the Islamic Republic of Pakistan which even otherwise provides this Court ample powers to take necessary steps to ensure that orders passed in matters pertaining public importance and the enforcement fundamental rights are implemented in letter and spirit and in a timely manner . It is clear from the aforenoted Minutes that the Honourable Chairman, insofar as the applicants/interveners are concerned, passed a direction to enforce an order which had already been passed in Constitutional Petition No. 09/2010. As such, the order passed was an order seeking implementation of a Judicial order . It has not been argued by the learned ASC for the applicants/interveners that an altogether new order was passed by the Honourable Chairman of the Administrative Committee during the Meeting. Even if the order was administrative, it has not been denied that an earlier order in Constitutional Petition 09/2010 existed which provides that all illegal marriage halls shall be demolished. The fact that the directions of the Honourable Chairman of this Court's Administrative Committee were administrative does not obviate the fact that the earlier order in Constitutional Petition No. 09/2010 was a judicial order and had not been implemented in its letter and Spirit and across the Board. Insofar as the applicants/interveners are concerned, no new order was passed and, this Court's earlier order was directed to be enforced through the Commissioner Karachi. Nothing has been brought to our attention to establish that the Meeting was in any way improper or that the directions passed could not have been passed. The argument that the direction was passed as the Chairman of this Court's Administrative Committee implying that it was an original order is misconceived and is accordingly repelled. WHETHER THE MARRIAGE HALLS IN QUESTION COULD BE BUIL T UPON THE LAND IN QUESTION? 13. It is an admitted fact that the land in question, claimed by the applicants/interveners, is residential in nature. The only claim of the applicants/interveners is that they had acquired necessar y permissions/ NOCs from the housing society/authorities before they started constructing the Marriage Halls. It has further been argued that the applicants/interveners paid large sums of money for their land to be converted from residential etc. use. It is worth mentioning that the applicants/interveners have admitted that they did not receive any letters of regularization in respect of their properties stating that the same had been regularized as Marriage Halls or, that their residential land was converted to commercial land. The learned Sr. ASC for the applicants/ interveners has relied upon the Advertisement to argue that the applicants/interveners were eligible to get their lands commercialized/ regularized.
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We are upable to agree with this argume nt. We have before, us the notification dated 13-07-2017 which reads as follows:- 'In pursuance of the recommendation of the Marriage Lawns/ Halls/Gardens/Banquet Halls Committee and in exercise of powers under Section 21-A of SBCO 1979, policy framework for Marriage Lawns/Halls/Gardens/Banquet Halls is made part of KB&TPR-2002 and it notified for general public; 18-5.9:The request for change of land use for (commercial trade) Marriage Lawn/halls/gardens/banquet halls shall not be considered under the provisions Nos. 18-4 to 18-5.8 on the plots falling on less than 150-0 ft wide road and having a minimum area of 2000 sq.yds...' The learned Sr. ASC has not brought anything, to our attention any material that may show that the plots of the applicants/interveners fulfilled the conditio ns prescribed in the above notification. On the contrary , we have a public notice dated 15-12-2017 on the record which shows the total area of plot No.F-70 of the applicant/intervener No. 01 was 960 Sq.Yds which is less than 2000 Sq.Yds and, cannot be converted. This is also provided in the Challan of the Master Planning Department dated 19-12-2017 and even in the NOC dated 08-05-2006. Similarly , we have a publication in the name of Mrs. Shabana, in respect of plot No.F-72 for conversion from residential to commercial use. The measurement of the said plot is also 960 Sq.Yds, which is less than the qualifying measurement of 2000 Sq.Yds mentioned above. We have on record a forwarding letter dated 13-02-2018 in the name of applicant/intervener No. 03 which mentions the measurement of his plot to be 1000 Sq.Yds which is also less than the area of 2000 Sq. Yds. There are other similar documents on the record, and, the Advertisement on the record as well, which provide that the minimum area of the plot must have been 2000 Sq.Yds. The learned Sr.ASC for the applicants/interveners has been unable to show us any document from the available record which establishes that the conditions of the Advertisement and the Notification were met by the applicants/ interveners. 14. W e have on the record an advertisement of year 2002 which reads as follows: - "Irregular buildings constructed without approval or in violation of approved plan or where land use of the plot has been changed, may be got regularized on payment of penalty ." In the said advertisement, it is admitted that there existed certain illegal marriage halls, which were built without the approval of the competent authority , or, in violation of the approved plan. It is a matter of record that the applicant/intervener No. 03 and others received notices dated 21-07-2017 under section 3(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 from the Director , Anti-Encroachme nt Board, Revenue of Sindh for removal of their respective buildings. The said parties were successful in obtaining a stay order from the High Court at Sindh vide order dated 02-08-2017. The learned Sr. ASC has stated that the Government introduced a scheme through which regularization of certain plots was allowed. The following portion of paragraph 6 of the applicants/interveners suit for declaration and injunction reads as under:- "It was categorically stated in the said Suit that in the year 2002, the Karachi Build ing Control Authority announced a scheme/policy whereby , the conversion of plots from residential to comm ercial on payment of certain regularization fee/ charges was allowed." The fact that the advertisement mentione d above clearly used the words "illegal" and irregular" itself establishes that the said applicants/interveners knew that their buildings/marriage halls were wrongly built and so, attempted to get the same regularized. This to us is sufficient to hold that the marriage halls were illegally built on residential plots, in violation of clear orders of this Court which provide that the Master Plan of the City of Karachi cannot be changed and all changes made thereto must be reverted and illegal buildings demolished. Reference in this regard may be made to the case of Abdul Karim v . Nasir Aslam Bain ( 2020 SCMR 1 11) which reads as under:- "There seem to be an epidemic in the city of marriage halls, shopping malls, petrol pumps/CNG stations and the houses are being allowed to be converted for these purposes. Besides, encroachments upon and change the use of amenity plots like playgrounds, parks and meant for other amenities. Henceforth, that is from today there is a complete ban on Master -Plan Department of SBCA or any other authority of the City Government or Government of Sindh of allowing change in the use of land. No such change of use of land shall be permitted. Conversion of residential houses and amenity plots meant for parks, playgrounds and other amenities, their conversion shall not be allowed for commercial use that of marriage halls, markets, shopping malls, apartments, marquees, petrol
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pumps/ CNG stations etc. This complete ban in cessation of conversion of residential plots, amenity plots like that of parks, playgrounds and other amenities shall apply all across Karachi City including cantonment areas. SBCA nor any other authority shall approve any conversion including pending ones. All conversion allowed by these authprities shall be reviewed and all efforts shall be made to ensure that the land which was originally provided in the Master Plan of City of Karachi is restored to that status. SBCA shall not approve any multi-storeyed building plan on residential plots meant for residential houses, amenity plots like play grounds, parks and other amenities and all such approval given by SBCA shall be reviewed and any building constructed in violation of original Master Plan in the city of Karachi shall be ensured to be restored to its original position. Environmental Department and all other Government Departments shall ensure that city of Karachi is restored to that of its original Master Plan and no deviation from it should be allowed to be made. MPGO of SBCA shall not convert or allow to be converted the use of plot or land from its original use to that of any other use. All constructions which are illegally and unlawfully made in the city of Karachi shall be reviewed by the SBCA within a period of one month and a report in this respect shall be submitted to this Court, which should recommend the solution as to how these illegal and unlawful constructed buildings can be demolished and the plot/ land put to its original use and how the people, who are occupying such buildings, will be compensated and provided alternate accommodation by SBCA from the funds generated by its own staff. Accountant General Sindh shall discuss the issue with the DG SBCA as to how the payment of emoluments to the staff of SBCA is to be released." 15. The learned Counsel for the applicants/interveners has argued that the land on which the Marriage Halls were built was barren land with no habitation or residential/commercial construction in sight. Further , the Applicants/Interveners were pressurized by the societies to construct on the land and as a consequence thereto, the applicants/ interveners constructed Marriage Halls to save the land from encroachers. Thereafter , according to the aforenoted advertisement,…
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