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Petitioner: Dr. SAEEDULLAH JAFFAR and 3 others VS Respondent: SENIOR SUPERINTENDENT OF POLICE, JUDGMENT
Court Name: Balochistan High Court Judge(s): Qazi Faez Isa, Muhammad Noor Meskanzai Title:Dr. SAEEDULLAH JAFFAR and 3 others vs SENIOR SUPERINTENDENT OF POLICE,
JUDGMENT
Reported As: 2012 CLC 1911 Result: Petition accepted Judgment JUDGMENT ' QAZI FAEZ ISA, C.J.--- The petitioners are permanent residents of Quetta residing with their families respectively on Jinnah Road, Parsi Colony, Adalat Road and Ramsay Road and are aggrieved by the establishment of a Bus Stand in front of the house of the petitioner No,1 and in the vicinity of the houses of the other petitioners. The petitioners state that the said Bus Stand causes parking of a large number of buses, traffic jams, noise, filth, blockage of passage to their houses, crowding in front of their houses, and many from the crowd sit right outside the entrances to their homes and use, their boundary walls as public urinals. The Bus Stand also attracts tongas, rickshaws and vendors selling eatables and goods on pushcarts (rehris). The congestion may also attract criminals who target public places and increases the risk of bomb blasts and explosions. 2. The petitioner No,1 therefore addressed a complaint to the Chief Secretary, Government of Balochistan, but when he did not receive any reply he approached the Provincial Ombudsman (Mohtasib), who gave his findings/decision dated 3 May, 2007 as under:--- "The perusal of record shows that the grievance of the complainant has been redressed by the traffic authorities by installing the no-parking boards and deputing the traffic officials for checking of local buses in front of the residence of complainant. Since reportedly the grievance has been redressed by the agency, therefore, the case is disposed of as redressed. Parties be informed accordingly." 3. Annex C to the petition is "A Proposal" to address the problem and states:-- "Quetta city is facing many fold problems; the most important is the traffic congestion which is getting worse day by day, one of the main reasons is the huge and shabby local busses, plying on
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the narrow roads of the interior of the city. The second is the shortage of parking places---this situation is getting worst day by the day with no solution insight. ' The proposal of building a new local bus terminal at the old place is devoid of reason and common sense because the roads inside the city especially Jinnah Road which is the main artery of the city is already over-crowded, with vehicles double parked and which are to narrow to accommodate buses. ' A permanent solution to the problem can be the building of the multi-storey parking lot at the site of the old local bus terminal, instead of a plaza and a new bus terminal because already the Baldea Plaza built a few years back is almost fifty per cent (50%) empty. ' In the larger public interest local busses should not be allowed into the city beyond Imdad chowk, from Imdad chowk up to Askari CNG station on which huge colonial bungalows are situated is the most appropriate place for a modern bus terminal as it is centrally located and has easy access from all the sides of the city specially with the Chaman Phatak flyover near completion. ' Considering the fact that the President of Pakistan is taking interest in the development of Quetta city the acquiring of the railway land should be no problem. All the residents of the railway bungalows situated on this piece of land can very easily be accommodated in a single apartment building built on a small part of this large piece of land, costing just a few crore rupees. ' If this futuristic and workable proposal is implemented then Quetta city and its citizens will see a big change for the better." ' The petitioners have sought removal of the, "unlawful Local Bus Stand on the intersection of Jinnah Road, Ramsay Road and also Adalat Road", and that the respondents, "be directed to act in accordance with the law" and that "any other appropriate order" may be passed. 4. The Senior Superintendent of Police Traffic, Quetta (respondent No,1) filed reply to the petition which inter alia stated, that:- "The local Bus stand for buses plying on Sariab and Brewery routes was temporarily shifted from Circular Road to M.A. Jinnah Road/Ramsay Road junction by the orders of respondent No,2." ' And the then District City Nazim (respondent No,2) confirmed what was alleged by the respondent No,1 in the following terms:- "The local bus stand for buses plying on Sariab and Brewery routes have been shifted on temporarily basis from Circular Road to M.A. Jinnah Road/Ramsay Road Junction with the mutual consent of the bus owners. The work in the old Bus Stand is under progress." "Since this is a temporary arrangement and the buses have been allowed to use this point and possibly the point will be shifted to its original place after completion of the Bus Terminal, therefore, assertion of the petitioners that unlawfully standing of Buses, Rehris causing obstruction on roads is not justified." ' However, the respondents Nos.1 and 2 did not offer any response/ comments on the aforesaid Proposal of the petitioners. 5. The plan of the respondent was to construct a new Bus Terminal on Circular Road on the site of old Bus Stand, which over a period of time had been encroached upon or was in occupation of persons whose lease/licence to occupy stood expired. Accordingly, an attempt was made to remove the encroachers / occupiers from the site of the proposed new Bus Terminal and various interim orders were passed to facilitate their eviction and eventually the site was cleared. In addition to the land comprising of the old Bus Stand land measuring 31,510 square feet was purchased at a cost of Rupees four million by the Quetta Municipal Corporation in the year 1996 from the Lahore Diocesan Trust Association .For the proposed new Bus Terminal, to use the words of respondent No,2, "in view of the great demand of transporters and the difficulties being experienced by the public." The total area on which the new Bus Terminal was proposed to be constructed was 55,000 square feet ("Project") of which 23,490 square feet was land previously
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owned by the Municipality and 31,510 square feet acquired from the Lahore Diocesan Trust Association. The comments filed by the respondent No,2 state that the work on the Project could not be commenced due to encroachments. The encroachments were eventually removed / vacated and the site handed over to the contractor on 18 April, 2009, almost two years after filing of the petition. 6. The design of the Project was revised many times and the Project, that finally emerged had 786 shops and offices. The Project was described as, "A Commercial Office, Cum Shops Unit Inter City Covered Bus Terminal Building at Circular Road, Quetta" and was to comprise of, (1) basement for parking, (2) ground floor with shops, lifts and staircase for access to other floors and a fully covered area for buses, (3) mezzanine floor partly covered with shops, (4) first floor fully covered with offices, (5) second floor fully covered with offices and (6) third floor with restaurant. We were further informed that the approved cost of the Project in 1999 was Rs,173 million and that its 'present cost (as per the architect/consultant of -the Project, noted in order dated 11 November, 2009) had probably doubled. The contractor of the Project confirmed the doubling of the cost of the Project and stated that he was not prepared to undertake the Project on the old approved rate of .Rs,173 million and would only do so if the rate is enhanced to Rs,360 million (recorded in order dated 11 November, 1999). The only work that had been undertaken was the clearing of the site and excavation of a pit; and no construction has been carried out as yet. Accordingly, vide order dated 11 November, 2009 it was directed that no further construction activity be carried out until the disposal of the petition and all concerned were directed to ensure that no encroachments are made on the Project site. 7. That when this petition was filed Mr. Maqbool Ahmed Lehri was the District City Nazim and also the designated Project Director of the Project, and was actively pursuing the Project. However, after the elected term of Mr. Lehri's office was completed and upon enactment of the Balochistan Local Government (Amendment) Act, 2010 inter alia all Nazims, including Mr. Lehri, ceased to hold office. The said Amendment further provided that the Government appointed Administrators would perform the functions of the Nazims and Local Council. The District Coordination Officer ("DCO") was redesignated as Deputy Commissioner ("DC") pursuant to the Local Government (Amendment) Ordinance, 2010 and the position taken by the DCO/DC before the Court has been markedly different from that of Mr. Lehri. According to Mr. Lehri he validly exercised the powers as the Project Director of the Project and in this regard placed reliance upon a letter of the Deputy Secretary (Dev), Local Government, Rural Development and Agrovilles Department, Government of Balochistan dated 25 May, 1988 which stated as under:- "The undersigned is directed to refer to your letter No,1025/PE/QMC, dated 20th March,- 1988, on the subject noted above and to convey the approval of the following:--- (i) Secretary, Local Government has allowed the Mayor, Quetta Municipal Corporation who is the Project Director of the Baldia Shopping Complex. And Bus Stand Projects with full administrative and financial powers except approval of tenders. The cases of approval of tenders will have to be submitted to the Secretary Local Government. (ii) The Project Engineer has also accorded with full technical powers for Baldia Shopping Complex and Bus Stand Projects." Mr. Lehri however did not file his letter dated 20 March, 1988, which vas replied to by the Secretary in the aforesaid letter. The DCO/DC does not agree with Mr. Lehri and states that the Nazim is the, "Administrative Head of the independent tier of District Government while as Project Director he has to be under a certain forum within the district" and that "projects are designed with all the relevant staff chain of command, financial flow and inbuilt monitoring mechanism with clear mandate, but here in this case no such system had been evolved ... And the Project Director [Mr.
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Lehri] has been running the whole affairs single handedly without any system of check and balance." 8. Another significant point of difference between Mr. Lehri and the DCO/DC is with regard to the ability to change the designated land use of the plot. Mr. Lehri maintained through comments filed in Court on 21 December, 2009, that, "there is no restriction / prohibition in the Balochistan Local Government Ordinance 1980 for conversion of purpose of amenity plot. That City Government has an intention to generate funds for itself as well as for the project in question which can only be done by constructing multi-storey building." The DCO/DC however states that, "Bus stand comes within the definition of Amenity plot", but without dilating further. 9. That during the hearing a number of parties, who claimed to have been dispossessed from the site of the old Bus Stand, sought to be heard and or joined as parties to secure their entitlement to future grant in lieu of the land/shop /petrol pump/tonga stand held by them at the site of the old Bus Stand. To resolve the matter as to who was in possession and what was his status the DCO was appointed by consent, vide order dated 22 February, 2010, to do the following:- (1) "Ascertain the number of occupants who were in occupation and record the names of such occupants along with the area in their possession. (2) Determine the status of aforesaid occupants, i,e, whether they were lease holders, tenants and duration of such lease or tenancy. (3) All concerned are directed to hand over entire record with regard to this matter to DCO, who shall thereafter be responsible for the same. ' DCO to submit his recommendations with regard to the aforesaid by or before, the next date of hearing." ' On 24 March, 2010 the DCO/DC submitted report and made his recommendations. Since some of the persons expressed dissatisfaction with the recommendations of the DCO/DC they were provided with an opportunity to submit written applications for consideration of the DCO/DC vide order dated 21 April, 2010. The DCO/DC submitted another report on 10 May, 2010 regarding the applications received by him and subject to minor changes, as mentioned in Annexure B thereto, maintained the report earlier submitted by him. 10.. That accordingly the following questions arise for determination:--- ' Firstly, whether the Nazim could act as the Project Director of the Project? ' Secondly, whether the amenity status of the plot could be changed, by constructing a multi- storied building thereon and/or whether leaving only a small portion of the land/built up area for use of the proposed Bus Terminal was tantamount to changing its amenity/land use status? ' Thirdly, how to attend to those who had vacated or had been evicted from the Bus Stand land? ' Fourthly, what, if any, relief the petitioners are entitled to? 11. Mr. Nasrullah Achakzai, learned Additional Advocate-General ("A.A.-G.") and Syed Iqbal Shah, Advocate have supported the comments/statements filed by the DCO/DC. Learned A.A.-G. Has also placed reliance on the case of Ali Ahmed v. Municipal Committee, Talagang 2001 SCM R 585, wherein the Hon'ble Supreme Court dismissed the appeals filed against the judgment of the Lahore High Court. The land in question in the said case was designated as rafa-i-aam ghair mumkin (thoroughfare for use of the general public) which was being converted by constructing a private building thereon. It was contended that with the passage of time the said land had totally lost its utility and could not be utilized for the designated purpose as it was 5 feet below road level and on the said land stagnant water had accumulated which emitted obnoxious smell and had become a nuisance to the residents of the locality. Mr. Justice Javed Iqbal, speaking for the Supreme Court, held (at page 592) that:- "We are, therefore, inclined to hold that the ownership of the land in dispute vests in the appellants but the characteristics of the property in dispute cannot be changed which shall remain as
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"Maqbuza Rafah-i-Aam". The alternate plea as agitated on behalf of appellants that Municipal Committee may be directed to convert the land in dispute into a public park seems more plausible and must be appreciated. Mr. Ibrahim Satti, learned Advocate Supreme Court on behalf of the Municipal Committee has assured that the needful will be done by the Municipal Committee, Talagang. While accepting the alternate plea and pressing into service the doctrine of cypress whereby if the formal or particular purpose cannot be carried out the Court may approve scheme which is in consonance with the general intention of the donor. Babaik Singh wanted to serve the public at-large and by converting the land in dispute into a public park the objective could be achieved by utilizing the land for the public-at-large. ' In the light of foregoing discussion the Municipal Committee, ' Talagang is directed that the land in dispute which has assumed a filthy and ugly look and has become threat to human health and is nothing short of a filth depot should only be utilized for public park without any reflection on the proprietary rights pertaining to the appellants which in our view would be in the interest of public-at-large. The needful be done without loss of time to save the inhabitants of the vicinity from a loathsome situation. The abovementioned appeals being devoid of merits are dismissed subject to modification as mentioned hereinabove." ' The first 'question as to whether an elected Nazim could act as Project Director of a project must be answered in the negative. The local body system set up under the Balochistan Local Government Ordinance, 2001 ("Ordinance") stipulated, that the District Government "consists of Zila Nazim and District Administration" (section 13). "The Zila Nazim shall head the District Government and perform such functions and exercise such powers as have been assigned to him under this Ordinance and he assisted by the District Coordination Officer" (subsection (1) of section 17) and the functions and powers of the Zila Nazim are mentioned in section 18 and also requires that he, "maintain administrative and financial discipline in the District Government". On his part the DCO was required to, "exercise general supervision over programmes, projects, services, and activities of the District Administration" and was required "assist the Zila Nazim in accomplishment of administrative and financial discipline" (section 28). The Nazim was an elected representative of the people whereas the DCO a paid employee heading the officers who carried out their duties respectively assigned to them under the Ordinance, 200,1 and to implement the decisions of the elected representatives. On 13 May, 2010 the Ordinance was repealed and, replaced by the Balochistan Local Government Act, 2010 ("Act"). However, notwithstanding the repeal of the Ordinance all actions, et cetera, taken under the Ordinance provided the same were not inconsistent with the Act "and not in contravention of the prescribed procedure or prejudicial to public interest" (subsection (2) of section 3) were saved. The Act also re-designated the urban areas of the City District Government Quetta as Metropolitan Corporation, Quetta and the Nazim as Mayor. The ownership of properties attended to by section 107 of the Act and the subject land came to vest in the Metropolitan Corporation of Quetta. 13. The letter dated 25 May, 1988 (reproduced in paragraph 7 above) is contrary to the provisions of the Ordinance, and was issued prior to the promulgation of the Ordinancetherefore no reliance thereon, could be placed upon it and Mr. Lehri could not derive any purported powers as Project Director on the basis of the said letter. In any event to assign the functions of Project Director to the Mayor, as mentioned in the said letter, was contrary to principles of transparency and good governance, and thus also against the public interest. The said letter refers to "Baldia Shopping Complex" which was constructed, when Mr. Lehri was the Mayor of Baldia, by demolishing the Fruit and Vegetable Market which had served the citizens of Quetta for decades. The said letter makes no reference to any law, enabling the issuance thereof, or the purported power vesting in the Secretary Local Government to issue the same. In any event the empowerment, if any, of Mr. Lehri as Project Director came to an end upon the promulgation of Ordinance as the Ordinance did not
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envisage the grant of such powers. The duties of a Project Director may be of a technical nature requiring a specialist to perform them. Such a person could be from amongst the regular cadre of employees of the City, on deputation from the government or be specially hired for the job. However, Mr. Maqbool Ahmed Lehri, who was the Nazim, undertook the work of the Project Director himself. Mr. Lehri has not claimed to be an expert in the field of designing and constructing bus terminals or to be an expert town planner or that he held any specialist degree(s) in such fields, but even if he had the requisite experience or expertise he could not have been appointed as the Project Director because of the inherent conflict of interest with his office of Mayor/Nazim. In his capacity as Project Director Mr. Lehri would be undertaking .The Project for the people of the City of Quetta and, therefore, would be accountable to them through the elected Nazim, namely himself. Moreover, the Project Director would be under the administrative and or disciplinary control of the DCO, which, in the case of Mr. Lehri acting as Project Director, presented an anomalous position since elected representatives are responsible to the people, who elect them. Accordingly, Mr. Lehri was at the same time acting both as master and servant, which was completely untenable, and destructive of the principles of good governance. For the sake of argument in the event Mr. Lehri was eminently qualified for the job of the Project Director of the Project, though there is nothing on record to suggest that he was, and wanted to be considered for such appointment, Mr. Lehri should have first resigned as the Nizam and only then could he have been considered for the post, if he met the job criteria. Both Mr. Lehri and the Government of Balochistan betrayed complete disregard for the principles of transparency, accountability and good governance. The Project (as will be discussed later) bears testimony to the fact that when principles of transparency, accountability and good governance are violated it is the people who pay the price and suffer. 14. The old Bus Stand was, as its very name suggests, for use as a bus stand, and additional land was acquired for amalgamation therewith, for the construction and use as a bus terminal. However, the respondent No,2 effectively converted the designated Bus Terminal into a shopping complex with offices. The ground floor was to be partly covered with shops and had lifts and staircase for access to other floors and the remaining area, which was fully covered, was shown for use of buses. The area shown for.The use for. Buses could not safely be used for buses, given the fact that the design showed that it, was enclosed/encircled with shops and buildings, had only small openings for the entry and exit of buses, was not open to the sky (as a number of floors for shops/offices stood above such space), and no ventilation was provided for the fumes generated by the buses. Consequently it is reasonable to presume that the small area designated for use of buses too would have been allotted for shops/offices. In any case, leaving only a small portion of the land/built up area for use of the proposed Bus Terminal was tantamount to changing the old Bus Stand's amenity status and conversion of public land into private use. To add insult to injury, the public would have had to pay an amount exceeding Rupees 360 million for the construction of the proposed multi-storeyed building, though it was envisaged that the said cost would eventually be recovered from the lucky owners of the shops/offices. The project was thus nothing but a fraud and a scam and apparently promoted to enrich those who were executing it. The fact that Mr. Lehri was both the Nazirn and the Project Director of the Project also removed any semblance of accountability and transparency and ensured against the maintenance of administrative and financial discipline and proprietary. 15. That under the pretext of requiring the old Bus Stand land for construction of a new Bus Terminal a charade was enacted. If the object of the whole, exercise was to construct a multi-storeyed building thereon with shops and offices, , there was no justification to dispossess the existing occupants. Such actions undermine the confidence of the public in their public representatives and public functionaries. Moreover, by the all too frequent use of such tactics a once beautiful and well planned city has been converted into a congested and polluted one and nearly all public and
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amenity lands have been put to private and or commercial use. Quetta has grown exponentially but its citizens have not been provided with the requisite facilities and the services. The Sixth Schedule of the Ordinance, required that trees on public streets be planted, ensure against conversion of land use provide for proper regulation of buildings, provide for drainage, sewerage and street lighting, ensure maintenance of public markets, laying out of public gardens, safeguarding and maintaining open places, undertaking spatial planning, controlling and regulating traffic, but sadly all these matters were observed mostly in the breach. The abject failure' of the City District Government to fulfil its mandate attains criticality' when the few remaining public amenity spaces are sought to be illegally converted by the City Government itself, and to put the land thus converted into private use. Ironically those whose duty was to enforce the provisions of the Ordinance became its principal violators. 16. Section 124(1) of the Ordinance stipulated, that, "The properties of local government shall be .Used only for public purposes", and the very same stipulation is mentioned in section 110 (1) of the Act. Therefore, Mr. Lehri's contention that the Ordinance has no restriction or prohibition for conversion of an amenity plot to a different use and the City Government, can resort to constructing a multi-storeyed building thereon clearly contravenes the cited…
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