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Petitioner: SULTAN and otherss VS Respondent: PROVINCE OF SINDH and others
Court Name: Sindh High Court Judge(s): Sabihuddin Ahmed, Syed Ali Aslam Jafri Title: SULTAN and otherss vs PROVINCE OF SINDH and others Case No.:Constitutional Petitions Nos.D-147, D-233, D-396, D-453, D-460, D-491, D-
JUDGMENT
Reported As: 2004 CLC 392 Result: Petitions partly allowed Judgment JUDGMENT ' S. ALI ASLAM JAFRI, J.--- Since the common questions of law and identical facts are involved, hence we propose to dispose of all these twenty petitions by this single order. ' The cause for filing these petitions appears to be the demolition of the properties of the petitioners and utilization of their said land/plots for construction of a road/expressway hereinafter referred at "Lyari Expresswa y" on both banks of River Lyari from Mauripur Bridge to Sohrab Goth. It appears from the pleadings of the parties that the length of the said Expressway will be 16.5 kilometres and according to the respondents it is being constructed for the heavy traffic from Karachi to upcountry and downwards presently passing from the roads of Karachi City which cannot bear the load and pressure of such large number of heavy vehicles such as trucks, trailers, oil tankers, etc. The said traffic while passing through the residential, commercial and residential-cum- commercial area of the city is causing tremendous loss to human life and properties due to accidents and pollution of environment. It is also causing constant damage to civic amenities such as drinking water, sewerage, gas, electricity and telephones lines, etc. According to the respondents it is a big project of national importance and there was no other alternate with the City Government and the National Highway Authority but to construct this expressway in the national interest in general and the citizens of Karachi in particular. ' It is the case of the petitioners most of whom were unauthorized occupants of the plots/various pieces of the land as described in different petitions which were subsequently granted to them after being regularized under different schemes from time to time. The petitioners grievance in
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general is that they are apprehending their dispossession at the hands of respondents forcibly and without due course of law which shall result in causing huge losses to their residential and commercial properties. Most of the petitioners claim to be the allottees/licensees/ transferees of the said plots through valid transfer/lease orders in their favour granted either by Directorate of Katchi Abadi or by the erstwhile Karachi Metropolitan Corporation and in some cases even by the Provincial or Federal Government. ' The facts in brief as 'disclosed in each petition are reproduced as under. Constitutional Petition No,D-147 of 2002 Sultan and 3 others through Mr. Ghulam Abbas Soomro, Advocate. ' The petitioner No,1 claims to have purchased a commercial plot of land measuring 5000 sq. Yds. Bearing No,MII/F/220 alongwith boundary wall and rooms constructed thereon situated at Sher Shah Karachi from Mian Tanveer Ahmad, Mian Zia Hamid, Mian Muhammad Naeem and Mian Muhammad Hanif for a consideration of Rs,15,00,000 (Rupees fifteen lacs) only through an agreement of sale, dated 5-4-1988. The petitioner No,1 further claims that he is running business in the name of "Messrs Kath Traders' and regularly paying the utility bills which include charges for telephone, electricity, water and sewerage. He claims to have spent a huge sum of money to the tune of Rs,5 million on development and RCC construction over the said plot. It is the case of the petitioners that the erstwhile KMC had regularized the possession and issued lease-deeds on 5-5- 1997 in their favour fora period of 99 years on payment of costs/lease money as per rules, which are intact till today. ' The petitioners have further stated that a week prior to the filing of the petition, they learnt that a major operation to remove the encroachments from the Lyari River Bed for construction of 16.5 Kms. Long Lyari Expresswa y from Sohrab Goth to Mauripur Bridge is being carried out and 80% of the staff of Anti-Encroachment Squads of 18 Towns has been engaged for the said purpose. The petitioners apprehending demolition of their property have filed this petition. They have further stated that the proposed action was never notified to them and in case of demolition of their properties they shall be deprived of running their profitable business arbitrarily at the hands of the respondents without payment of adequate compensation according to the market value. The petitioners have, therefore, prayed for a declaration that proposed action regarding demolition of their valuable properties without payment of adequate compensation according to market value be declared as without lawful authority and of no legal effect. They have also prayed that the respondents Nos.3 to 5, their agents, servants and subordinates be restrained from demolishing the property of the petitioners. ' Counter-affidavits have been filed on behalf of the respondents. Respondent No,1 while controverting the claim of the petitioners has stated that the petitioners have no legal right to remain in possession, they have illegally occupied and encroached upon the Government lands. The construction raised by the petitioners is also illegal and in violation of law and rules as no building can be raised without approval of building plan by the competent authority. Unauthorized construction and encroachments are being removed in national interest for construction of an Expresswa y named as "Lyari Expressway" which is the need of time as the existing roads inside the city are unable to bear the present load of the heavy traffics running from Mauripur Bridge to Sohrab Goth in order to reach Supper Highway. In the counter-affidavit filed on behalf of respondents Nos.2 to 5 while denying the claim and alleged rights of the petitioners it has been pleaded that Lyari Expresswa y is a Federal Government project and the said Government has not been impleaded as a respondent. It is further stated that the alleged predecessor-in-interest of the petitioners had no locus standi to sell public properties to the petitioners. The petitioners have themselves converted the property as commercial. They have managed the alleged lease in their favour with the connivance of subordinate staff of defunct KMC. They have already got four
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separate leases of Plots Nos.1529, 1529/1, 1529/2 and 1529/3. The said leases are in violation of the provisions of rule 13 of Sindh Local Council Land Rules, 1975 and section 19(4) of Sindh Katchi Abadies Act, 1987. The said plots not only fall within the alignment of Lyari Expressway but are also located in flood hazards zone: On that count as well the lease are void ab initio. The respondents have, therefore, prayed for dismissal of the Constitution petition. In the rejoinder the petitioners have reiterated the facts as stated in Constitutional petition and further stated the land .In question has been declared as Katchi Abadi by the Government of Sindh on 14-11-1987 through a notification issued under the provisions of subsection (1) of section 19 of the Sindh Katchi Abadies Act, 1987. Constitutional Petition No,D-233 of 2003 Maqsood and 2 others through Mr. Shaukat Ali Shaikh, Advocate. ' The petitioners claims to be sub-lessees of the plot situated in Pir Ellahi Bux Colony executed by the Society in their favour in the year 1996. They have further stated that without adopting procedure laid down in Land Acquisition Act, 1894, the City Government is trying to dispossess them and demolish their houses in an unlawful, illegal and unwarranted manner in violation of fundamental rights of the petitioners. The petitioners have further stated that few years back KDA had announced a project by name Lyari Expressway and a Land Acquisition Officer was also appointed who had sent notices to all the persons to be effected but the said project was subsequently dropped and now the City Government wants to construct the said Expressway. It is further stated that initially, 50 feet wide road was planned but subsequently the width has been extended upto 150 feet in order to give some part of the land to Builder Mafia. The petitioners have, therefore, prayed for declaration that they may be declared to be lawful owners of the properties under their occupations. The proposed action of respondent City District Government in demolishing their properties forcibly without process of Land Acquisition Act, 1894 and without payment of compensation according to market value be also declared to be without lawful authority. They have also prayed for a restraint order against the respondents, their agents, servants and subordinates refraining them from demolishing the petitioners' houses/properties. ' Objections/counter-affidavits have been filed on behalf of the respondents stating therein that the land in occupation of the petitioners is a part and parcel of Lyari River. It could not be legally and validly granted or leased out either treating the same as Katchi Abadi or even otherwise by the KMC as the Provincial Government had never transferred the same to KMC. Even otherwise, it could not be transferred to KMC for the said purpose as according to section 37 of the Sindh Land Revenue Code "all public roads, etc. And all lands which are not the property of other belongs to the Government". Furthermore, the river bed embankments of a river and flood hazard areas cannot be transferred by residential or commercial purpose to anybody hence the alleged sub- leases in favour of the petitioners or the lease in favour of PIB Colony purportedly executed by KMC is not a legal transfer and cannot confer any rights upon the alleged transferees. In fact, the petitioners are just like encroachers. There is nothing on record to show that any construction has been raised by them with the approval of the authority concerned. Any construction without the permission of Building Control Authority is deemed to be unauthorized construction and liable to be demolished. It is further contended on behalf of the Government that Lyari Expressway is a project of Federal Government which is in progress and being constructed for the benefit of the public-at-large and particularly the residents of Karachi who are facing great problems due to heavy traffic passing through the city roads which cannot bear the load of such traffic which is increasing day by day. It is further contended that at one hand it shall help in providing an alternate route to the heavy traffic from Mauripur Bridge to Sohrab Goth and on the other hand it will reduce the pollution in the city, traffic jams and accidents which have become very frequent due to trailers and tankers passing from the roads situated in various residential and commercial areas of the city. It has been further contended that the petition is not maintainable as the Federal
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Government has not been joined as party in the petition. Constitutional Petition No,D-396 of 2002 Fakhruddin and 23 others through Mr. Ali Gohar Masroof, Advocate. ' The petitioner claim to be the lawful owners/sharers of various shops/property situated at Sher Shah Kabari Market, Sher Shah, Karachi, on the basis of various lease-deeds executed by Assistant Director (Land), Karachi Metropolitan Corporation, Karachi. The petitioners alleged that they are apprehending their dispossession as the construction raised by 'them on their plots is likely to be demolished by the respondents without adopting any legal mode. The petitioners have, therefore, prayed that respondent be restrained from demolishing the properties/shops in their possession. ' Comments by way of counter-affidavits have been filed on behalf of the respondents questioning legality and validity of the alleged lease-deeds in favour of the petitioners. It has been stated that the petitioners are encroachers and their case does not stand covered either under the Katchi Abadi Act, 1987 or Martial Law Order No,110 as the area was never declared to be Katchi Abadi as per law and rules. It is further contended that the land under unauthorized occupation of the petitioners could not be granted to them under any law of the land, as the bed of the river and its embankment cannot be transferred either under MLO 110 or Katchi Abadies Act, 1987 or Sindh Local Government Ordinance, 1979 or any other law for the time being in force. It is also contended that Lyari Expresswa y is a Federal Government Project and the petitioners have failed to join the Federal Government as a necessary party in this petition. Moreover, the land under unathorised occupation of the petitioners is to be utilized for larger public interest in order to solve traffic hazards in the city and to provide an alternate route for the heavy traffic plying from Mauripur Bridge to Super Highway via Sohrab Goth. It is further contended that the construction raised by the petitioners, if any, is unauthorized and there is no approved plan passed by any competent authority hence the construction, if any, has been raised by the petitioners at their own risk and costs. However, by way of a good gesture the Government has framed a policy and decided to provide a plot of 80 sq. Yds. And Rs,50,000 to each occupant of the land falling within the area earmarked for the Lyari Expresswa y provided they voluntarily vacate the land in their occupation and hand over its possession to the authority concerned. Constitution Petition No,D-453 of 2002 Ch. Inayatullah through Mr. Shaukat Ali Shaikh, Advocate. ' Petitioner Chaudhry Inayatullah claims to be occupant of land/Plot bearing No,1206/B, PIB Cooperative Housing Society Limited, Karachi, having been allotted to him by the Society in the year 1963. Some extra land in his possession was regularized in the year 1971 and on 19-2-1975 lease between KMC and society was executed in respect of the plot in question and was registered before the Sub-Registrar whereafter sub-lease was granted in favour of the petitioner on 19-3-1975. The petitioner submitted his plan for regularization and sanction, and has raised construction thereon. In the year 1986 KDA had announced the project of Lyari Development Scheme, and the petitioner had received a notice from Land Acquisition Officer, KDA but no further proceedings were initiated. The petitioner has assessed the value of his property at Rs,70,00,000 (seven million). It is his case that after coming to know through newspapers as well as the Society that his property is likely to be affected due to construction of Lyari Expressway Project. He filed this petition praying therein that he is entitled for compensation under the Land Acquisition Act, 1894 in case the land and property belonging to him is utilized for the said purpose and any action on the part of the Government to dispossess the petitioner or demolish his house without following the proper procedure and payment of compensation be declared to be without lawful authority and the respondents, their agents, servants and subordinates be refrained from demolishing the house of the petitioner and snatching his property without land acquisition proceedings. ' The defence plea in this petition is also same as taken in other petitions as referred to above. Constitution Petition No,D-460 of 2002 Ali Hussain through his Attorney Gul Muhammad Hajano in person.
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' Petitioner Ali Hussain has filed this petition through his attorney stating therein that a plot was allotted to the petitioner by KMC on 99 years lease in the year 1975 and after getting the plan approved the petitioner has raised construction. On coming to know that the said land/property belonging to him is to be utilized for Lyari Expressway and his houses are likely to be demolished the petitioner has filed this petition and prayed that action of the respondents regarding demolition/ snatching properties forcibly without process of Land Acquisition Act and payment of compensation according to market value, be declared as unlawful, against the principles of natural justice and of no legal effect. He has further prayed that agents, servants and subordinates of respondents be refrained from demolishing the house of the petitioner till the compensation is determined and paid. In support of his contention he has produced the copy of lease-deed and site sketch of the said plot. He has also produced one letter, dated 4-3-1987 from KDA Directorate of Land Management (Land Acquisition Cell) calling upon one Chaudhry Inayatullah (not the petitioner) to appear before the Committee on 17-3-1987 for objections to proposed Development ,Scheme No,44 Lyari Development Scheme. ' The defence taken by the respondent is same as disclosed in reply to other petitions. Constitutional Petition No,D-491 of 2002 Mursaleen and 4 others through Mr, All Gohar Masroof Advocate. ' Petitioners Mursaleen and four others have filed this petition claiming therein that they are lawful owners of properties bearing No,31/B, Block-A, Hasan Aulia Village, Old Golimar, Karachi, which originally belonged to Muhammad Waseem who is real brother of petitioner No, 1 . Plot No,31-B/3 in the same locality is claimed to be his property by petitioner No,3 Ferozuddin. Shops Nos.3-/22, 30/27, 30/28, 30/29 and 30/30 are claimed to be his property by petitioner No,4 whereas petitioner No,5 claims to be the owner of Plot Nos.30/2, 30/3, 30/4, 30/6, 30/7, 30/8, 30/9 and 30/10 30. The petitioners state to have come to know that master plan of the said locality was approved by the KMC/KDA and occupants are to be granted 99 years lease. The petitioners further claim to have come to know that respondents intend to start construction of Lyari Expressway by demolishing the properties/ shops of the petitioners without due course of law. It is the case of the petitioners that as per record the petitioners are the owners of the said property and as such. They cannot be deprived of the same hence they have prayed that respondents be directed not to demolish the properties/shops of the petitioners except in due course of law. Copies of lease-deeds, challan for payment of lease money, Form CVT-I, etc. Have been produced by the petitioners in support of their case. ' The respondents have disputed the claim of the petitioners on the same legal grounds as taken as a defence in other petitions. Constitution Petition No,D-1235 of 2002 Ghulam Dastgir and 14 others through Mr. Khalid laved, Advocate. ' The petitioners are apprehending their dispossession at the hands of the respondents and demolition of their Property bearing No,253/6/1, Garden West Quarters. Karachi. Which is to be utilized for construction of Lyari Expressway. They have prayed for declaration that the respondents have no authority to act in such a manner so as to deprive the petitioners of their valuable property except in due course of law and without payment of adequate compensation. They have further prayed for an order that the respondents be restrained from demolishing any portion/part of the aforesaid property. The case of the petitioners is that the property/plot in question was granted to them by the Ministry of Housing and Works, Government of Pakistan, Islamabad, for a period of 99 years to the extent of 13085 sq. Yds. In favour of petitioner No,15 and another portion measuring 2790 sq. Yds. Was also granted by the same authority in the name of petitioner No,15. Property has been mutated in the name of petitioner No,15 who in the year 1998 has sold out a portion measuring 4840 sq. Yds. To petitioners Nos.1 to 14. It is further contended that the lease in favour of the petitioners is intact and the respondents have no right to interfere with such rights of
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the petitioners. In case of the plots in question or any area thereof is required by the respondents for the purpose of Lyari Expresswa y, the said respondents should adopt legal procedure for acquiring the land as required after making payment at the market rate. Though, initially the title of the petitioners was called in question and it was asserted that the property in question belongs to the Sindh Government and, as such, Federal Government had no authority to grant lease in favour of any person including the petitioners. However, at a later stage the learned Additional Advocate- General, Sindh placed on record a letter from the Member (Land Utilization), Board of Revenue, Sindh, dated 14-5-2003 wherein it is stated that the land in question, was property of Federal Government which has granted a lease in favour of the petitioners. ' The petitioners in support of their case in respect of their leasehold rights have placed on record copies of the registered lease-deeds, subsequent conveyance-deeds and survey plan as well as site plan showing the area required for construction of Lyari Expressway. Subsequently, letter, dated 14-5-2003 from Member (LU), Board of Revenue Sindh, addressed to Additional Advocate-General Sindh, Karachi, has also been placed on record reiterating therein the entry in respect of 13085 sq. Yds. Of land of Plot No,253/6/1 Garden West Quarters, Karachi, made in favour of Provincial Government was cancelled by the Government of Sindh with the prior approval of Chief Minister, Sindh and it was allowed to remain intact in favour of Federation of Pakistan who has subsequently leased out some area to petitioner No,15. Constitutional Petition No,D-1323 of 2002 Abdul Samad and 17 others through Mr. Maula Bakhsh Khoso, Advocate. ' The petitioners in this petition claim to have constructed their houses and business concerns in village "Peer Bux Baloch Goth" since long and further claim to have been granted land/part of Survey Nos.212-616 for agriculture purposes and such mutation have taken place in Deh Form VII. It is claimed that this village was surveyed and on 9-2-1995 the said village was regularized by the Government of Sindh; and leases were granted to the inhabitants. ' The legality of the alleged leased-deeds in favour of the petitioners have been called in question by the respondents on the same grounds as taken in reply to other petitions. Constitutional Petition No,D-1358 of 2002; Abdul Samad and 9 others through Mr. Maula Bukhsh Khoso, Advocate. ' In Constitutional Petition No,D-1358 of 2002 the petitioners are virtually the same as shown in Constitutional Petition No,D-1323 of 2002 at Serial Nos.1, 3 to 10 and 17. They claim to be joint owners of a piece of land measuring about 2000 sq. Yds. Out of No,616, Deh Gujro, Tapo Soongal, Karachi- Central, and state that they are running the Market of Old Furniture on the said plot. They further claim to have purchased the said piece of land from its owners and that the land in question has been mutated in Village Form VII in their names. According to the petitioners, in 1986 the KDA had launched its Scheme No,44 known as "Lyari River Development Scheme" with the idea and planning that a road would be built over top of the bed of Lyari River from Mauripur Bridge to Super Highway without touching old road on the top of the river. The petitioners were given to understand that construction of Lyari Expresswa y would not disturb their business concerns but the original plan has been changed and now the petitioners have learnt that the said Expressway is being constructed over the land including that of the petitioners. The petitioners have, therefore, prayed for declaration that proposed action of the respondents to demolish the properties known as "Old Furniture Market" over Survey No,616, Deh Gujro, Tapo Soongal, Karachi-Central be declared to be without lawful authority and of no legal effect. They have also prayed for an injunctive order against respondent No,2 their agents, servants and subordinates restraining them from demolishing the business places of the petitioners. They have further prayed for a direction that the Expresswa y should be constructed in accordance with the approved plan of 1986 under Lyari River Development Scheme No,44.
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' The claim of the petitioners has been disputed on the same legal grounds as taken in reply to other petitions as referred to above. Constitutional Petition No,D-1438 of 2002 Messrs AL-Habib Textile Bleaching Mills through Mr. Abdus Salam Baloch, Advocate. ' The petitioner Messrs Al-Habib Textile Bleaching Mills claims to be a registered firm having been established in the year 1949 having started its business actively on a piece of land measuring 4850 sq. Yds. In front of Plot Nos.175 and 176 in the belt of Lyari River at Garden West Karachi which was later temporarily leased out to the petitioner by the Collector of Karachi in the year 1956. The lease was extended subsequently, and it included Survey Nos.156, 157, 174 and 175 at Garden West. Lease is registered in the name of Haji Abdul Hamid who is one of the partners of the…
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