Judgment Sheet
IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petition No. D – 1642 of 2016
Before :
Mr. Justice Nadeem Akhtar
Mr. Justice Fahim Ahmed Siddiqui
Petitioners : Muhammad Ashraf and Nasir Ahmed Muzaffar,
through Mr. Ali Zaidi Advocate.
Respondent No.1 : Faisal Cantonment Board, through Mr. Nadeem
Ahmed Rana Advocate along with Ashraf Ali
and Muhammad Kamal Khan, Members of
Cantonment Board Faisal.
Respondent No.2 : Inspector General of Police Traffic, Karachi,
through Mr. Miran Muhammad Shah, Additional
Advocate-General, Sindh.
Date of hearing : 08.02.2017.
J U D G M E N T
NADEEM AKHTAR, J. – Through the present petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have prayed inter alia that setting up of bachat bazaar by respondent No.1 / Cantonment Board Faisal on the subject 40 feet wide service road and its footpaths be declared as illegal, unconstitutional, arbitrary, in excess of authority and in violation of the applicable laws, and as such the contract or permission in respect thereof is liable to be cancelled. The petitioners have also prayed for a declaration that it is their constitutional right to enjoy the benefits of their properties including the possession thereof. It is further prayed that respondent No.1 be restrained permanently from allowing, granting contract, giving permission to anyone to set up bachat bazaar on the subject service road and its footpaths and or from installing or erecting stalls etc. thereon, and respondent No.2 / IGP Traffic be directed to ensure that all inhabitants of the area, including the petitioners, do not face any difficulty, traffic jams and or restriction on their free ingress and egress to their properties.
2. The case of the petitioners, as averred in the petition, is that there is a 40 feet wide service road running parallel to Maulana Muhammad Ali Jauhar Road in Block 13, Gulistan-e-Jauhar, Karachi, which is the only access from the main road to large number of apartment buildings / complexes. Respondent No.1 / Cantonment Board Faisal has allowed private parties to setup bachat bazaar on every Thursday and Sunday on the said service road which is causing grave hardship, inconvenience and nuisance to all the inhabitants of the area in question and also to the people who visit or pass through the said area. The entire service road and its footpaths are completely blocked and the openings thereof are cordoned off twice a week because of bachat bazaars as stalls and carts are placed thereon indiscriminately by the stall holders and vendors causing congestion and traffic jams. The stalls, carts and other items are left at the site by the stall holders and vendors even when the bachat bazaar is over in order to save themselves from the trouble of bringing the same at the site twice a week. Due to this reason, the service road and its footpaths remain occupied throughout the week. It is averred that numerous letters and complaints in this behalf were sent to respondent No.1 due to which respondent No.2 / IGP traffic had advised respondent No.1 not to renew the contract of bachat bazaar, but respondent No.1 refused to pay any attention to the said complaints and advice on the pretext that bachat bazaar was in the interest and for the benefit of the local residents.
3. It is contended on behalf of the petitioners that the impugned contract for setting up bachat bazaar was awarded and renewed by respondent No.1 for earning huge revenue and not for the benefit of the residents as objections in respect thereof were never invited by respondent No.1 from the residents / public. It is further contended that the impugned action has been taken by respondent No.1 without due process of law and as such it is liable to be declared as illegal.
4. Comments have been filed by respondent No.1 stating that the bachat bazaar was allowed to be set up in view of persistent demand by the residents. It is claimed that respondent No.1 has the authority to do so under Section 200 of the Cantonments Act, 1924 (‘the Act of 1924’). Vide order dated 03.11.2016, we had directed respondent No.1 to file additional comments clearly disclosing (i) relevant particulars of all such persons who had requested the Cantonment Board to establish bachat bazaar on the land in question, (ii) relevant provision(s) of law, rules and regulations authorizing and empowering Cantonment Board to establish bachat bazaar, (iii) minutes of the relevant meeting of Cantonment Board in this behalf, (iv) the criteria for selecting a particular location for bachat bazaar, and (v) relevant particulars of the owner of the land where bachat bazaar has been allowed and established. In pursuance of the aforesaid order, additional comments were filed on 09.12.2016 by respondent No.1 along with copy of purported minutes of its meeting, reiterating that bachat bazaar was allowed to be set up “as per demand of the respectable resident (!) including area counselor (!) etc” under Sections 198 and 200 of the Act of 1924, and further stating that the criteria for selecting a particular location for bachat bazaar is always the appropriate demand of the residents of that particular area, and the site in question is not owned by any private person. It is pertinent to note that respondent No.1 has not denied that bachat bazaar has been set up on a service road, and in paragraph 2 of its comments, it has been candidly conceded by respondent No.1 that except for collection of taxes, charges and fee, it has no other source of income.
5. We have examined the purported minutes dated 06.06.2016 of its meeting filed by respondent No.1, which read as under :
“ 5.2. Auction of Bachat Bazar
To confirm action taken by the CEO under Section 25 of the Cantonments Act 1924 with prior approval of the PCB regarding Auction proceeding for holding of Bachat Bazar at Block 13, Gulistan-e-Jauhar (Sunday, Monday, Thursday & Friday) for the period of one year w.e.f. 19.03.16 to 18.03.17 in open public auction and highest bid of Rs.8.58 million offered by Mr. Muhammad Yameen Sabir proprietor of M/s. Basheer Enterprises.
Resolution Considered and approved ”.
Section 25 of the Act of 1924 specifies special power of the Executive Officer of a cantonment who may, in case of an emergency, direct the execution of any work or the doing of any act which would ordinarily require the sanction of the Board and the immediate execution or doing of which is, in his opinion, necessary for the service or safety of the public ; provided that he shall not act under this section without the previous sanction of the President / Vice President of the cantonment or in contravention to any order of the Board prohibiting the execution of any particular work or the doing of any particular act, and he shall report forthwith the action taken under this section and the reasons therefor to the Board.
6. Perusal of the purported minutes filed by respondent No.1 shows that the purported meeting was called only to confirm the “action taken by the Executive Officer” under Section 25 ibid regarding auction proceedings for holding bachat bazaar, wherein the highest bid was approved. We are of the considered view that the special power contemplated in Section 25 ibid could be exercised only in case of an emergency, and only in cases where the question of service or safety of the public is involved. No material has been placed on record by respondent No.1 to show that the impugned action was taken for the purposes of service or safety of the public, or the impugned action was necessary to encounter some emergency. The purported minutes are completely silent in this behalf. It is not the case of respondent No.1 that there was an emergency in view of which the impugned action had to be taken. The above condition precedent for invoking Section 25 ibid was, therefore, not met by respondent No.1. Moreover, despite specific direction by this Court, relevant particulars of the residents who had allegedly requested respondent No.1 to establish bachat bazaar on the road in question and the criteria for selecting a particular location for bachat bazaar, have not been placed on record by respondent No.1.
7. Regarding Sections 198 and 200 of the Act of 1924 relied upon by respondent No.1, it may be observed that under Section 198 the Cantonment Board is entitled only to provide and maintain public markets and public slaughter-houses together with stalls, shops, sheds, pens and other buildings for the use of persons carrying on trade or business in or frequenting such markets or slaughter-houses ; and, Section 200 allows the Cantonment Board only to levy and charge rents and fee in respect of stalls, shops, standings or sheds in public markets or public slaughter-houses. In our humble opinion, reliance on Sections 198 and 200 ibid is misconceived as the subject site is admittedly a road and not a public market or a public slaughter-house. In any event, respondent No.1 has no right or authority under any of the said Sections or under any other provision of the Act of 1924 to take any decision whereby a public street, road, thoroughfare or footpath can be used for any commercial or other purpose. Therefore, the question of inviting objections in this behalf from the public by respondent No.1, does not arise at all.
8. Before parting with this case, we would like to respectfully rely upon the order passed on 05.05.2016 by the Hon’ble Supreme Court on CMA No.209-K of 2014 in C.P. No.152-K of 2014 and CMA Nos.657 to 660-K of 2015 and CMA No.869-K of 2015 in CMA No.209-K of 2014, wherein it was held that no billboard or hoarding can be permitted to be installed on any public property, as defined in the aforesaid order, by any authority under the garb of by-laws which militate the civil rights of the public at large ; and, all the authorities concerned were directed to immediately remove all the billboards and hoardings within their jurisdiction within fifteen (15) days, and not to allow installation of billboards and hoardings on any portion of public place / property in Karachi. In our humble opinion, the above order passed by the Hon’ble Supreme Court is relevant for the purposes of the instant petition as roads, sidewalks, pedestrian lanes, islands in the centre of a road / service land and green belts / dividers between a road have been held to be ‘public property’, which term has been defined and clarified in the above order as under :
“ The term ‘public property’ has wide meaning and, therefore, we would like to clarify it in the order to avoid any ambiguity. The term ‘public property’ shall include the following places :
“(i) Roads.
(ii) Sidewalks.
(iii) Islands in the centre of a road / service land – including but
not limited to ‘Sponsored Islands’ whereby the entire Island is maintained by a private person who displays his name and products on the traffic signs.
(iv) Overhead Bridges and Underpasses.
(v) Overhead pedestrian walkways / bridges.
(vi) Roundabouts – including but not limited to ‘Sponsored
Roundabouts’ whereby the entire Roundabout is maintained by a private person / or any organization who displays his or their name and products on the traffic signs.
(vii) Green Belts / Dividers between a road.
(viii) Pedestrian lanes.
(ix) Nullahs (Storm Water Drains) and the banks of Nullahs
(Storm Water Drains) which abut roads.
…………………
…………………”.
9. We have already held that the impugned action was taken by respondent No.1 without fulfilling the condition precedent specified in Section 25 ibid, and no public street, road, thoroughfare or footpath can be allowed by respondent No.1 to be used for any commercial or other purpose. It is also held that a ‘public property’ including public street, road, thoroughfare or footpath meant for the use and enjoyment of general public cannot be leased to any private or third party nor can any type of third party interest be created therein for any commercial or other purpose ; and, the Government, the relevant municipal authority and all their functionaries are duty-bound to keep the public street, road, thoroughfare, footpath and ‘public property’ free from all types of encroachments and claims. The impugned contract for setting up bachat bazaar on the subject service road and its footpaths is, therefore, declared as illegal.
Foregoing are the reasons of the short order announced by us on 08.02.2017 whereby this petition and the listed application were allowed with no order as to costs by directing the respondents to ensure that the impugned bachat bazaar shall not be held at the present site, that is, the subject service road between Cantonment Board Park and the 100 feet wide main road.
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