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Petitioner: Sherri CBE (CITIZENS FOR A BETTER ENVIRONMENT) and another VS Respondent: GOVERNMENT OF SINDH through Secretary, Land Utilization Department Board of Revenue, Karachi and others
Court Name: Sindh High Court Judge(s): Azizullah M. Memon, Arshad Noor Khan Title:Sherri CBE (CITIZENS FOR A BETTER ENVIRONMENT) and another vs
GOVERNMENT OF SINDH through Secretary, Land Utilization Department Board of Revenue, Karachi and others Case No.: C.P. No,D-1277 of 2003 Date of Judgment:2008-09-05 Reported As: 2009 YLR 955 Result: Petition dismissed Judgment ORDER ' AZIZULLAH M. MEMON, J.---Petitioners of this petition made following prayers therein:--- (a) Declare that all the allotments done by respondent No,1 as part of impugned scheme on both sides of Hawksbay Road within Scheme No,42, is illegal and void in view of Ordinance III of 2001. (b) Declare that the boundaries of Scheme-42, are points D, E, F, G, H, K, L, M, N, P, Q & R as given on the plan bearing drawing No,25/R/366/287 dated 27-2-1983 (Annexure-IV). (c) Declare that the entire land within the boundaries of Scheme No,42 stands transferred to L.D.A. (d) Declare that the layout plan given is the only legally notified layout plan for Scheme-42 (Annexure XII). (e) Declare that since respondent No,1 had transferred all its land in Scheme-42 to K.D.A., it cannot issue duplicated allotments for land that it no longer owns. (t) Declare that all the layout planning and plotting done by respondent No,1 as part of impugned scheme on both sides of Hawksbay Road, is illegal and void. (g) Restrain the respondents Nos.1 and 2 to further allot plots of impugned scheme. (h) Direct respondents Nos.1 and 2 to cancel all allotments made by them in the impugned Scheme. (i) Direct the respondents Nos.1 and 2 to stop any constructions activity taking place as part of impugned scheme within Scheme No,42. ' Take action against the various concerned officers including respondents Nos.1, 2 and 4 for having violated the law, and perpetuated this fraud on the public.
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(k) Grant such other relief as this Hon'ble Court deems just and proper in the circumstances. ' Following order was passed in the petition on 19th May, 2005:--- "This petition has been filed by Shehri in the public interest pertaining to the land lying within the vicinity of Hawksbay area. There are four parties before us i.e, the petitioner, City District Government Karachi, Provincial Government and the interveners. ' The case of the City District Government is that the land claimed by the Provincial Government was in fact notified as KDA Scheme No,42 whereas the Provincial Government stated that the disputed land was not included in that Scheme and it remained with the Provincial Government which is entitled to utilize the same in the way it wants. The Provincial Government also stated that it has already allotted the disputed land to a number of allottees for developing an Industrial Zone. ' The petitioner's case is that the proposed area for Industrial Zone, to be developed by the Provincial Government, firstly does not fall within the powers of the Province of Sindh as this area is coveted by KDA Scheme No,42 and secondly no Industrial Zone can be allowed to be raised there as it would adversely affect the environment within the radiation range of KANUPP as well as that of the Beach. We have heard this petition for the last many dates and found that number of factual controversies have been raised by all the parties which in fact would require evidence and full- fledged inquiry. Such matters are usually decided through civil suit but looking to the nature and exigency of the matter we are of the opinion that it may be decided by this Court in the Constitutional jurisdiction. However, for that purpose we would like to get the factual controversies examined by the Official Assignee. ' We would therefore appoint the Official Assignee as the Commissioner, who shall carry out the full-fledged inquiry in presence of the representatives of the parties and examine the documents as well as claims pertaining to the disputed land. He will be at liberty to seek assistance from any expert/experts to reach a right conclusion about the claims of each of the parties. He may visit the site physically along with the experts and representatives of the parties as and when deemed necessary by him. ' The Commissioner will hear this case possibly day to day without giving adjournment to any of the party without any reasonable ground for the same. In case any of the party does not appear before him, he will proceed with the matter. ' The petitioner will be represented by Mr. Roland D' Souza and Dr. Raza Gardezi while the City District Government will be represented by Mr. Nandlal, Superintendent Layari Development Project and Director Planning while the Provincial Government will be represented by the Mukhtiarkar/Tapedar concerned or any other officer authorized by the Government. The private respondents will be represented by Mr. Abdul Ghafoor Qureshi, Advocate. ' The first date before the Commissioner is fixed as 21-5-2005 at 2-00 p.m. The Commissioner shall submit report within a period of one month from the receipt of this order. His fee to be borne by the petitioner as well as private parties/interveners equally which will be decided by the Official Assignee with the mutual consent of the petitioner and the private respondents. ' Interim order passed earlier to continue till next date." ' According to the petitioners planning and development of the cities and towns is to be based on certain principles approved by the Honourable Supreme Court of Pakistan and reported in PLD 1994 SC 514, which are to the effect:--- "Goals of modern urban planning. ---The ultimate goals had always been social, even during the period when city plans themselves related only to physical change. They had been and continued to be deeply involved with intermediate economic objectives. The expression of the goals was of course coloured by the culture of the society seeking them. Of increasing weight was the goal of equality of opportunity and the redress of the grievances of disadvantage minorities within this
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value system the physically oriented urban planning of the first half of the 20th century had evolved a set of environmental objectives that continued to be valid. (1) the orderly arrangement of parts of the city residential, business, industrial---so that each part could perform its functions with minimum cost and conflict; (2) an efficient system of circulation within the city and to the outside world, using to the maximum advantage all modes of trans-portation; (3) the development of each part of the city to optimum standards, in terms of lot size, sunlight, and green space in residential areas, and parking and building in business areas; (4) the provision of safe, sanitary and comfortable housing in a variety of dwelling types to meet the needs of all families; (5) the provision of recreation, schools, and other community services of adequate size, location and quality; (6) the provision of adequate and economical water supply, sewerage utilities, and public services." ' Further that the then Karachi Development Authority (KDA) issued public notices in daily. Newspaper "Business Recorder" for framing of a development scheme under Article 37 of Karachi Development Authority Order 5, to be named as KDA Scheme No,42-A, Hawksbay Buleji Housing and Recreational Scheme (Scheme No,42), which was to comprise of approx. 11,450 acres and such plan/map was also prepared dated 27-2-1983 and further that the then Governor of Sindh had directed for transfer of 21,700 acres of land from Board of Revenue Sindh (Respondent No,1) to the KDA for development of the said Scheme No,42; so also the KDA published notices in newspaper Dawn Karachi on 24th June, 3rd June and 8th July, 1984, to invite public objections against the framing of KDA Scheme 42 to comprise of 11,450 acres and then also KDA issued public notices on 24-7-1984 and got it published in the Sindh Government Gazette under Article 12 of KDA Order 5 with specification of 20,900 acres as controlled area, "which also include 300 feet right of way of Mauripur Road (Hawksbay Road) from Circular Railway Intersections at SITE (Gul Bai) up to point `L' of the boundary of Scheme No,42." ' It is further contended by the petitioners that on 12th July, 26th and 2nd August 1984 also, KDA issued another public notice in Sindh Government Gazette specifying a development area of 11,450 acres out of the controlled area of 20,900 acres to be known as KDA Scheme-42 and that the Divisional Commissioner vide his letter dated 10th December 1985, on having received such directions from the Governor of Sindh "confirmed the immediate handing over of the State land of 11,450 acres to KDA for Scheme-42" and further that on 14th December, 1985, respondent No,1 transferred physical possession of such area of the land to KDA for the said Scheme No,42 and then KDA started developing the said scheme since the year 1986, as per the layout plan; and since then about 30,000 residential plots of different sizes stand allotted through public balloting since the year 1988 and layout plan of the allotment and balloting of such plots in the said Scheme No,42 was also prepared/issued. It is further contended by the petitioners that on 7-3-1989 a meeting was held under the chairmanship of the then Chief Secretary, Sindh, wherein he reiterated the Notification of Scheme No,42 under Article 45 of the KDA Order; further that the respondent No,1 held a meeting regarding misuse of the land by means of "Haq Qabza claim in Scheme No,42" on 8th January 1991, on the basis of false certificates issued by the Mukhtiarkar, Karachi West. ' It is further contended by the petitioners that on 1st January 1996, the land control in respect of Scheme No,42 stood transferred/handed over from KDA to Lyari Development Authority, through Sindh Government Gazette Notification of the said date with jurisdiction over the areas "which include Scheme No,42" and that the Lyari Development Authority (LDA) paid an amount of Rs,20 Lacs to the then Deputy Commissioner, Karachi, West, towards "second instalment/part payment for State land of 11,450 acres inside the boundary/jurisdiction of Scheme No,42"; further, the LDA
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through public notices offered the plots of different sizes in Scheme No,42 for allotment to the general public, which were located in Sector 32 as per the layout plan, but then Scheme No,42 was neglected and there was rise in the encroachment activity over the said land in between 1988 and 1997. ' The petitioners alleged that since the year 1991 and onwards respondent No,1 in eess of its powers and without reference to the existing development at Scheme No,42, started allotting a large areas of land along both sides of Hawkasbay Road to influential persons/ parties at throwaway prices without consent/prior approval of LDA and that the same was done under the Scheme/ name of K- 28, Phase-II Scheme (hereinafter to be referred to as the 'impugned Scheme') and revised layout plan of industrial area out of K-28 TL Quarters, Phase-II, Hawksbay Road, Karachi, and the size of the plots so carved out was different without there being any balloting of such allotment of the plots, as required under Sindh Disposal of Plots Ordinance, 1980. ' It is further assertion of the petitioners that issuance of layout plan of impugned, scheme by respondent No,1 is illegal and in excess of its powers and contrary to the provisions of Karachi Development Authority Order No,5 of 1957, as well as against Act of 1993; further notices regarding the sale/purchase of the plots in the impugned scheme along Hawksbay Road were got published in the daily newspaper Dawn on 12th May, 2nd June and 14th August 2003, respectively, and petitioner No,1 informed the potential buyers not to enter into any transaction as such plots are illegally constituted and so being allotted and, therefore, petitioner No,1 pointed out all such irregularities and illegalities of allotment of the plots to various officers vide letter dated 31st March, 2003 and also press releases were got published by him in the newspapers accordingly and so also the Superintending Engineer, Lyari Development Authority, issued letter dated 10th March, 2003, to the Deputy District Officer, Revenue, Keamari Town, to the effect that the encroachment/illegal construction in Blocks 12 and 14 of Hawksbay Housing Scheme 42 amounted to double allotment, thereby depriving the allottees of their vested rights and that the respondents Nos.1, 2 and 4 illegally promoted encroachment along both sides of Hawksbay Road, as part of the impugned scheme. Hence, the petitioners made above quoted prayers in the petition. ' It may be stated here that the applications were filed by the number of interveners with prayers to implead them as respondents, as some of the plots, referred to herein above, are said to have been purchased by them respectively and thereby have acquired vested right, title and interest therein. Vide Order dated 19th April, 2005, such applications were allowed. ' It may be stated here that Official Assignee of this Court was appointed as Commissioner to carry out the full-fledged inquiry in presence of representatives of the parties and to examine the documents as well as claims of different persons pertaining to the disputed land. ' Again, following order was passed on 16-8-2006, "Dispute has arisen with regard to status, boundary overlapping of Scheme No,42 and land in Scheme No,K-28. Parties are disputing status and legality of both the schemes. From the contention of parties, it appears that allotments in Scheme No,K-42 have been made by Defunct KDA (now LDA). It also appears that allotment of industrial, commercial and residential plots were made by Sindh Government in Scheme No,K-28. The parties are also disputing right to such allotments. There is also dispute in respect of allotment of plots in Scheme No,K-28 for industrial purpose and concern of environmental law is also an issue. Aforementioned scheme itself is in question. 'After hearing all the parties concerned and Officers present in court, by consent it is directed as follows: (1) Chief Secretary, Government of Sindh shall constitute a Committee headed by him, comprising of Secretary Land Utilization or its nominee and Director General, City District Government or its nominee.
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(2) The Chief Secretary shall also ensure participation of technical members from Environmental Protection Agency and Master Plan Town Committee, as well as one representative from SHERI. (3) The Committee shall examine the following issues and after hearing the participant will decide them. (i) Determine the entire status, boundary of Scheme No,K-28 and Scheme No,42, in accordance with prescribed law and regulation. (ii) The allotments of industrial, commercial and residential plots ,shall be examined, in case, allotments of industrial plots have not been made conducive or proper in any area, same should be formalized by relocation and re-allotment to the respective allottees. (iii) The establishment and/or creation of industrial zone in either of the scheme shall also be determined by the Committee as these schemes are near to coastal area. Reference had to be, to the law relevant to environmental protection. ' Till the above issues are decided by the Committee, the allotments made and the position and status in respect of the impugned schemes shall not be disturbed and the parties shall maintain status quo. ' The Chief Secretary, Government of Sindh, is directed to constitute the Committee within fifteen days from the date of this order and the Committee shall decide the issues framed above, within twelve weeks from the date, of its formation. The Chief Secretary shall also ensure that the status quo is maintained strictly by all the parties including public functionaries. ' The report of Committee should immediately be filed after expiry of above period or earlier and this petition shall be fixed after four months along with the report of the committee." ' The learned Chief Secretary Sindh constituted a committee in pursuance of the said order and report of the committee was also submitted accordingly in this petition, which reads as under: "Report of the Committee ' In pursuance of the orders dated 16-8-2006 of the Honourable High Court of Sindh, Karachi, passed in C.P. No, D-1277/2003 (Annex-A) , Government of Sindh constituted a committee vide Notification No, SO/APLS-II(SGA&C D)- 2(210)2003 dated 21-10-2006 under the Chairmanship of the Chief Secretary Sindh with the following terms of reference:--- (i) To determine the boundary of K-28 & Scheme 42. (ii) To examine the allotment of Industrial, Commercial and Residential Plots. (iii) To examine the environmental effects of Industrial Zone near Coastal Area. 2. Subsequently, the Government of Sindh constituted a Sub-Committee under the Chairmanship of Secretary (LU) to facilitate exact recommendation on the issue of boundary, relocation of the Industries from K-28 to another location and to finalize recommendations regarding regularization of Scheme 42 and change of land use in K-28 (Annex-B). 3. The Sub-Committee finalized its recommendations during its meeting held on 20-3-2000 (Annex-C). 4. The Committee constituted under the Chairmanship of the Chief Secretary in its meeting held on 15-5-2007 after going through the recommendations of the Sub- Committee took following decisions: 1. TO DETERMINE THE BOUNDARY OF K-28 & SCHEME 42. 'DECISION:- ' The area in question has been got surveyed through Survey Superintendent Karachi which transpired that the land forming K-28 Trans Layari is quite distinct area from the land comprising of Scheme No,42. There is no overlapping of Boundaries between K-28 and Scheme No,42 (Boundaries defined in appended sketch) (annex. D). II. TO EXAMINE THE ALLOTMENT OF INDUSTRIAL, COMMERCIAL OR RESIDENTIAL PLOTS.
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' DECISOIN.---(A) Notwithstanding the fact that claim of allotments in K-28 is subject to individual case verification by Sindh Land Committee, the ground position in K-28 belt, remains that some industries are physically functioning. It was, however, determined by the Committee that the land falling within the boundaries of K-28 is not conducive to industrial/Godown purposes on account of following reasons: (a) Sea-shore location. (b) Environmental repercussions arising out of industrial pollution and wastage dumping in sea. (c) Dangerous effect to pristine nature beauty of Hawksbay. (d) Incompatibility with the master plan of the city. (e) However, this area is feasible for commercial/residential purpose. ' DECISION4--(B) (i) All allotments conversion/ exchanges of State land obtained or granted for residential/ commercial/industrial purpose at rates lower than the market value in violation of law or ban from January 1, 1985, including subsequent transactions in respect thereof are hit by section 3 of the Sindh Government Land (Cancellation of Allotments. Conversions and Exchanges) Ordinance, 2000. (ii) Only allotments for residential purpose in K-28 Trans Lyari may be allowed to be taken up for decision by the Lands Committee. (iii) Those allotments where warehouses are built and stand verified may also be taken with Sindh Lands Committee. (iv) The existing Industrial units may be given an opportunity to convert the land usage to residential or godowns/warehousing only subject to such regularization by the Sindh Lands Committee. (v) The existing Industrial units may be given an opportunity to convert the land usage to residential or godowns/warehousing only subject to such regularization by the Sindh Lands Committee. III TO DETERMINE THE ENVIRONMENTAL EFFECTS OF INDUSTRIAL ZONE NEAR COASTAL AREA. 'DECISION:-- ' The Committee agreed that Industrial Zone near Coastal area is detrimental to environment. After effects of Industrial Pollution may bring adverse effect on environment. It is recommended that industrial zone should not be established in K-28. Moreover, in the Master Plan of the City, there is no provision of establishment of Industrial Zone in K-28. (Sd.) Chief Secretary Sindh" ' So also learned Official Assignee of this Court visited the disputed site, heard the parties in pursuance of the above quoted order and submitted his report dated 1st November, 2005, which reads as under: "5. That in pursuance of the orders of the Hon'ble Court, I have heard the parties, their advocates and have perused documents, master plan, sketches, maps of the concerned KDA Scheme 42, Scheme No,K-28 and maps of Deh Lal Bakhar and Deh Mouch. I also visited physically sites of Scheme KDA 42 and Scheme K-28 in presence of officers of KDA, Land Utilization, petitioners, interveners and Survey Settlement Officers. 6. To start with, as per version of Shehri, Government of Sindh had reserved land 20900 acres for KDA Scheme 42 vide Gazette of Sindh dated 12-7-1984 which is declared as controlled area. An area of 11450 has been shown for development, taken out from area of 20900 acres. The boundaries of an area 11450 acres has also been mentioned in the Gazette of Sindh dated 12-7- 1984. Further it is contended that possession of the land 11450 has been delivered to KDA by the
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Government of Sindh. The Government of Sindh or Land Utilization did not object to advertisements or allotments of plots to public, made by the KDA. The KDA has paid Rs,2.00 Crores to the Government of Sindh (Land Utilization). 7. A perusal of Gazette of Sindh dated 12-7-1984 shows that in fact regarding Scheme 42, no such notification was issued by the Government of Sindh, but it was got published by the KDA in the Gazette of Sindh Scheme 42 appears to have been prepared by the KDA and they got it published in the Gazette. There is no mention about any Malkana (price) if any paid to Govemment by the KDA, no mention that at what rate the KDA has got such huge area of land measuring 20900 acres, spread over, on 2 Dehs i.e, Deh Lai Bakhar and Deh Mouch. It is interesting to note that very claim of the KDA regarding payment of Rs,2.00 Crores as Malkana (price) of the land on the very face of it appears to be false and incorrect as no such challan of payment of Rs,2.00 Crores has been filed Ijy the KDA. Although KDA is claiming to have taken land 20900 acres from Land Utilization, but no such allotment order has been produced by KDA. At what rate the land has been taken from Land Utilization, the KDA is silent to this effect. KDA has filed 3 letters addressed to the Deputy Commissioner Karachi West, whereby payment of Rs,60.00 lacs through cheques has been shown. The KDA has filed photo copy of lewer No,DG(LDA)/521(A)_/1995 dated 3-9-1996 addressed by the Director-General, Lyari Development Authority to the Deputy Commissioner West, Karachi, regarding part payment in respect of land of LDA's Hawksbay Scheme No,42. It appears from this letter that a cheque for Rs,20,00,000 was sent to Deputy Commissioner West, Karachi, as a part payment for land pertaining to Hawksbay Housing Scheme-42. There is no mention of the rate of land nor any reference has been made to cost of land 20900 acres or 11450 acres, for which the said cheque for Rs,20 Lacs has been sent to Deputy Commissioner. ^lo area of land has been shown in this letter. In which accountt of the Sindh Government, said is to be credit no mention. 8. Another letter No,DD(Land) LDA/97/880 dated 25-8-1997 filed by the KDA, shows that payment of Rs,20 Lacs has been made to Deputy Commissioner West, Karachi, through cheque, being the 2nd instalment (part payment) for State land (11450 acres) for Hawksbay Housing Scheme-42. This letter is also silent about rate of land, how many instalments were fixed and how much total cost (Malkana) of the land was fixed no mention. Similarly, third letter dated 13-4-1999 has been sent by Deputy Director Land, Lyari Development Authority to Deputy Commissioner West, Karachi, with a cheque for Rs,60 lacs, being 3rd part payment for State Land measuring 11450 acres for Hawksbay Housing Scheme-42. Similarly by this letter does not disclose rate of land total price of the land, so also how many instalements afe still in balance to be paid by KDA. 9. It appears from all the three letters that payment of Rs,10 Million has been made by KDA, but is not clear as to who was particular authority/agency of Government of Sindh, by whom an allotment of 11450 acres of land was made, what rate of land per acre has been fixed, what is the total malkana (price) and in how many instalments of such malkana is payable by KDA no explanation. 10. On the other hand Mr. Rehan Iqbal Baloch, Deputy Secretary, Land Utilization Department and Mr. Ahmed Pirzada Additional Advocate General has denied to have given land measuring 20900 acres to KDA for Scheme-42. According to Rehan Iqbal Baloch only an area of 2700 acres have been given to KDA by the Land Utilization Department, of which no…
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