Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition Nos. D – 6286/2016,

2329/2007,5139/2015, 6525/2016, 5931/2016,

5283/2016, 5065/2016, 5030/2016, 5029/2016,

4290/2016, 5603/2016, 6079/2016, 5467/2016,

6493/2016, 6741/2016 & 6718/2016

Date	Order with signature of Judge

For hearing of applications and main case :

09.12.2016 :

Mr. Nishat Warsi advocate for the petitioners in C. P. Nos.D-5467/2016, 5603/2016, 6286/2016, 6525/2016.

Muhammad Asadullah Khan, petitioner No.1 in person (CNIC No.42401-2865365-3) in C. P. No.D-6718/2016.

Mr.Javed Raza advocate for the petitioner in C. P. No.D-6493/2016.

Mr. Mehmood Hussain advocate for the petitioners in

C. P. Nos.D-6079/2016 & 6741/2016.

Mr. Liaquat Ali Hamid advocate for the petitioner in C. P. No.D-4290/2016.

Mr. Abdul Basit Afridi advocate for the petitioner in C. P. No.D-5139/2016.

Ms. Sadia Khatoon advocate holding brief for Mr. Muhammad Azeem advocate for the petitioner in C. P.Nos.D-5029/2016 & 5030/2016.

Mr. Raheel Ali Bhatti advocate for the petitioner in C. P. Nos.D-5065/2016 & 5283/2016.

Mr. Baloch Ahmed Junejo advocate for the petitioner in C. P. No.D-5931/2016.

Mr. Muhammad Jamil advocate for respondent No.8 in C. P. Nos.D-5603/2016 & 5931/2016.

Mrs. Riffat Jehan, petitioner in person, in C. P. No.D-6718/2016.

Mr. Muhammad Javed K. K., Standing Counsel.

Mr. Miran Muhammad Shah, Addl. A. G. Sindh.

Mr. Iqbal Khurram advocate for KMC.

Mr.Osama Aftab advocate for KDA.

Mukhtiar Ali Abro, Assistant Commissioner / Focal Person concerned.

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The petitioners have challenged the action initiated by the respondents for removal of encroachments from Gujjar Nala mainly on the ground that the properties lawfully owned and legally constructed by them are being interfered with and demolished by the respondents by alleging that their possession and construction are illegal and they have encroached upon public property. It is the case of the petitioners that the land in their possession and the construction standing thereon are legal in all respects and as such the same do not amount to encroachment. Some of the petitioners are claiming leasehold rights in respect of their respective plots by virtue of indentures of lease executed and registered in their favour or in favour of their predecessors-in-interest, whereas the other petitioners are claiming vested and proprietary rights and ownership on the basis of allotment.

The Sindh Public Property (Removal of Encroachment) Act, 2010, (‘the Act’) was enacted to provide measures for removal of encroachment from public property and to retrieve possession, as is evident from the preamble thereof. Under Section 2(j) of the Act, “Encroachment” means unauthorized occupation of or undue interference with public property ; and, under Section 2(o) of the Act, “Public Property” means a building, land, place or premises vesting in or under the management or control of the Government, Local Council, autonomous body or registered cooperative society or such other authority. By virtue of Section 13 of the Act, the Tribunal established by the Government under Section 12 of the Act by notification in the official gazette shall have exclusive jurisdiction to adjudicate upon a dispute as to whether any property is a public property or not, or whether any lease or license in respect of such public property has been determined or not for the purpose of the Act. It is an admitted position that Gujjar Nala is a public property and respondents have initiated action for removal of encroachments therefrom. This being the legal position, we are of the view that the dispute as to whether the possession and or construction of the petitioners is legal and their leases / allotments are valid and subsisting, or they have encroached upon public property, can be decided only by the Tribunal established under Section 12 of the Act.

Learned Additional Advocate General Sindh and the Assistant Commissioner concerned / focal person made a statement before us that the Government of Sindh is in the process of constituting a commission for deciding the above dispute. It was suggested by them as well as by the counsel for KMC and KDA that the petitioners should be directed to approach the said commission. Since the Tribunal established under Section 12 of the Act shall have exclusive jurisdiction in respect of the dispute at hand as already held by us, we are of the firm view that the proceedings before any such commission and the decisions taken and orders passed therein shall be coram non judice.

All the parties and learned counsel including the learned Additional Advocate General Sindh and Standing Counsel agree that all these petitions be disposed of by directing the Tribunal to decide the dispute within a specified timeframe in case any proceedings are initiated by the petitioners. In our opinion, the Tribunal can be approached not only by the petitioners and other aggrieved parties, but also by the respondents so that the dispute with regard to the alleged encroachment on and around Gujjar Nala can be decided finally in accordance with law.

Accordingly, the petitioners may approach the Tribunal established under Section 12 of the Act latest by 17.12.2016 for redressal of their grievance, and in case any such proceedings are initiated, the same shall be finally decided by the Tribunal latest by 28.02.2017 strictly in accordance with law and after providing opportunity of hearing to all concerned. Till 28.02.2017 or the final decision of such proceedings, whichever is earlier, no coercive action shall be taken by the respondents in respect of such possession and construction of the petitioners which are in accordance with their allotments, registered leases and site plans. It is clarified that this order shall not apply to or protect such persons who are in possession of land(s) or have raised construction thereon without any valid allotment, registered lease and site plan, and the anti-encroachment drive initiated by the respondents shall not be affected, delayed or stopped in respect of such persons / encroachments.

With the consent of all the parties all these petitions and the applications pending therein are disposed of in the above terms.

J U D G E