IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

 

 

  PRESENT:-

 

  Mr. Justice Mohammad Junaid Gaffar

        Mr. Justice Zulfiqar Ali Sangi

 

 

 

Const. Petition No. D- 71 of 2021

 

Petitioner:                      Akram Ali, through Mr. Pervaiz Ali Sial Advocate  

 

 

Respondent No.9:           Town Officer Town Committee Ranipur, through Mr. Qurban Ali Malano, Advocate.

 

Respondents 10 & 11:    M/s Savera Builders & Arz Muhammad, through Mr. Muhammad Aqil, Advocate

 

Respondents/State:       Province of Sindh and others, through

Mr. Zulfiqar Ali Naich, Assistant Advocate General Sindh.

 

 

Const. Petition No. D- 86 of 2021

 

 

Petitioner:                      Nemo

 

 

Respondent No.5:           Manzoor Channa, through Mr. Muhammad Aqil, Advocate.

 

 

Respondents/State        Province of Sindh and others, through

Mr. Zulfiqar Ali Naich, Assistant Advocate General Sindh.

 

 

 

Dates of hearing             26.10.2021 and 16.11.2021.

 

Date of order                  08.02.2022.                   

 

 

O R D E R

 

 

ZULFIQAR ALI SANGI, J.-                 Through the above petitions,  petitioners Akram Ali and Saddam Hussain have prayed for restraining the Town Officer Town Committee Ranipur from raising construction of commercial shopping Centre with collusion of private respondents, over a public park/amenity plot.

 

2.                The facts relevant to these petitions are that there is a public park with the name of Meeran Shah Mohiuddin Public Park, as well as public library over which the Town Committee Ranipur in collusion with private respondents wanted to build a commercial shopping centre and in this regard on 11.06.2020, (29-07-2020) Town Committee Ranipur executed a deed of “public private partnership contract” with the private respondents. When the private respondents started the work of construction over the said park, the petitioners made complaints to several authorities against such act of the respondents but of no avail, as such they filed these petitions before this court.

3.                 Learned counsel for petitioner Akram Ali has contended that the park and library is an amenity property which was reserved for the sports and reading activities and same has always been used by the sportsmen and public exclusively as such they cannot be deprived of their right by the respondents under the garb of so called public private partnership contract dated: 11-06-2020 which later on was cancelled by the Chairman Town Committee Ranipur, vide latter dated: 18-06-2020 and a new agreement was executed on 29-07-2020, which being null, void and abinitio is liable to be set-aside. He referred the statement of Mukhtiarkar Sobhodero respondent No.2 dated 25.02.2021 and the report of Commissioner Sukkur respondent No.2 dated 11.10.2021 and submitted that as per their reports the land in question does not exists in the name of Town Committee Ranipur. Therefore Town Committee Ranipur has no legal status /right to give the land in question to private respondents for raising construction of shopping center over it. He also referred to a  letter of Local Government Department Government of Sindh placed as annexure-D, and submitted that the respondents have even not obtained permission from the concerned quarter as stipulated under section 75 (3) of Sindh Local Government Act 2013. He also submitted that the Assistant Director Sindh Building Control Authority Sukkur in his comments dated 25.02.2021, has also stated that SBCA has not given approval  to the respondents for raising  construction upon the plot in question; thus construction upon the subject property is illegal and unlawful. Even otherwise Town Committee Ranipur has no right to utilize such land except for the purpose for which same was reserved.

4.                 Mr. Muhammad Aqil learned Counsel for respondent No.10 and 11 has contended that the plot in question is not an amenity plot and though there is no record of the land in question in favour of  Town Committee Ranipur but  same is in its possession since long and the Town committee in its meeting has given approval of  construction in dispute and later on the  Town Committee Ranipur executed a deed of “public private partnership contract” on 11.06.2020, with the private respondents and after its cancellation vide letter dated: 18-06-2020 a fresh agreement was executed on 29-07-2020. He next contended that the property in question belongs to Municipal Council in view of section 117 (2) of the Sindh Local Government Act, 2013, therefore the council being the owner of the property was competent to execute the agreement in respect of public private partnership contract for construction of Town Shopping Center with the respondent No. 10. He next contended that as per Article 172 of the Constitution of Islamic Republic of Pakistan the property which has no rightful owner if located in a Province, vest in the Government of that Province, therefore the  Town Committee Ranipur has rightly exercised its right of ownership. He next contended that the property where the respondent is raising the construction is not the property of park and the public park named as Syed Abdul Qadir Shah Jilani is adjacent to the property in question and is in the use of public at large, to this effect he has also place on record handing over taking over certificate dated: 11-03-2020; that the Town Committee Ranipur through the publication in newspapers announced a scheme for public private partnership to enhance income on the basis of self-finance; that no Hitch Certificate was also issued by the Chairman Town Committee Ranipur in respect of the disputed plot on 29-07-2020; that the approval for construction from Sindh Building Control Authority is not required as according to the  agreement the property remain with the Town Committee Ranipur and not with the respondent (Builder) therefore as per the notification dated: 31-12-2008 issued by the Chief Secretory Sindh all the Government Buildings were excluded  from the operation of all the provisions of Sindh Building Control Ordinance 1979. Lastly, he submitted that long possession of the property with the Town Committee Ranipur is not disputed therefore the petitions are misconceived and the same may be dismissed.  

5.                Learned counsel for Respondent No. 8 and 9 has contended that the Shopping Center is not being constructed over amenity plot. He next contended that the long possession of the Town Committee Ranipur is not disputed and after the approval in the council meeting the deed in question was executed. He next contended that the decision was taken only to enhance the Finance/Revenue of the Town Committee Ranipur.

6.                Learned AAG has contended that the land in question was not owned by the Town Committee and it is an amenity plot which cannot be utilized for any other purpose.

7.                We have heard learned counsel for the petitioners, learned counsel for respondents, learned AAG and gone through the relevant record with their able assistance.

8.                The case of petitioners is that the disputed land was reserved as amenity property and was used for drainage and there was a Public Park and was in use of the children of the locality. To ascertain the status of the property as to whether it was an amenity property and was used for the drainage and Public Park or otherwise, reports were called from the District Judge Khairpur and Commissioner Sukkur Division Sukkur, so also from the Sindh Building Control Authority and the same were furnished by them respectively. Learned Magistrate in compliance of order dated: 11-02-2021 submitted report through the District and Session Judge Khairpur and the same is re-produced as under:-

OFFICE OF THE OF 1ST CIVIL JUDGE & J.M KARIRPUR
  No/CJJMI/246/2021                                                             Dated.22.02.2021

To,

The Honorable

District & Sessions Judge,

Khairpur.

Subject:           VISIT REPORT IN COMPLIANCE OF ORDER DATED 11.2.2021, PASSED IN CP NO.D-71/2021 & D-86/2021.


Reference:       Your’s Honour's office Order No.D&SJ/Admin/-4124 Dated. 17.02.2021.

Respected sir,

 

I have honour to submit the visit report, in compliance of subject order as under:-

 

That sir, under signed in compliance of subject order visited the site in presence of Assistant Commissioner Sobhodero Mr. Adeel Ahmed and Mukhtiarkar Sobhodero Mr. Ghulam Shabir Sahito to inquire that the whether land in question is public park or otherwise. The piece of land alleged to Public Park is situated in heart area of Raipur, whereupon a shopping center/ plaza is being constructed. The following are surroundings/ boundaries of the area in question, photos of the same are also captured, which are annexed as annexure "A".

 

South, back side of shops of Shahi Bazar Ranipur, Saga office, filter plant and Sindh TV office.

North, shops, plot and mobile tower.

East, plot, shops, houses and NHA Ranipur.

West, TMO office, press club, public library, houses shops

.

That sir, one broken swing and street light poles were also laying there. The petitioner informed that those were fixed in the park, while as other material concerned to the park has been carried out by the contractor in Collusion with the district government. Thereafter, statements of the local citizens were recorded by under singed.

 

01.       Qurban Ali Memon, retired employ town committee CNIC No. 45208-8735224-9. He stated that after his retirement he established public library and there was a public park also, one year ago contractor Manzoor Channa started construction of shops. He also produced photo copies of complaints which he had made to the different departments regarding demolishing of Park in question, such record is annexed as Annexure B".

 

02.       Syed Irfan Ali Shah, CNIC No. 45208-4309157-5. He stated that the, then Taluka Nazim Syed Niaz Hussain Shah Jeelani had established public park with the name of his father as " Meeran Muhkum Din public park". He further stated that there is a need of park to the locality, even budget had also been allotted to chairman for park. While citizen, Ghulam Hussain, Liguat Ali and Nimano Khan have also has stated that at land in question, there was a public park, such statements are annexed as annexure "C". The media personals and so many other local citizens disclosed that at land in question there was a public park. Except above, nothing was found from the spot due to dumping soil at the height of seven feet in plaza, such photographs of site are annexed as annexure "D". Petitioner has also produced some photographs regarding presence of park same are annexed as annexure "E". Assistant Commissioner disclosed that the all the record in question is laying with the then Taluka Chairman.

 

That sir, looking in to material and statements of citizen, I form my
opinion that at the land in question there was public park and later on same has been demolished for fulfilling their vested interests of private contractors and concern department, under the umbrella of public private partnership.
Moreover, concerned departments can produce record for further probe in to matter.

 

The report is submitted with high regards as desired, for onward
transmission to the Honourable High Court of Sindh; bench at Sukkur in compliance of subject matter.

                                               

                                                                                                            Sd/=

MUHAMMAD QABIL MAHAR

 Ist C.J & J.M KHAIRPUR

 

9.                The Commissioner Sukkur Division Sukkur in compliance of order dated: 23.09.2021 has submitted report which is re-produced as under:-


COMPLIANCE REPORT

 

In compliance of the order dated, 23.09.2021 passed by the
Honourable Court in the above Constitutional Petitions, it is respectfully submitted as under:

 

01.       That, the report was called from the Deputy Commissioner, Khairpur, who vide his office letter No: DC/LB/95/2021, dated, 08.10.2021 (Annexed) reported as under:

 

02.       That, land in question exists in some portion of S.Nos: 341 (0-31) and 343 (01-17) of Deh Ranipur Taluka Sobhodero, District Khairpur.

 

03.       That, according to Khasra Ghirdwari Register for the year 1971-72, S.Nos: 341 & 343 are entered in the name of Central Government with remarks in the column No: 12 & 13 on page No: 29 referring the use of land as "water supply" and "Banjar Qadeemi" respectively.

 

04.       That, no entry in favour of Town Committee Ranipur available in the relevant record as for the land in question is concerned.

 

05.       That, land in question has not been shown earmarked or reserved for any amenity purpose in the relevant record. However, land in question is being used as Public Park by the Town Committee Ranipur and the site visit would reveal abandoned children playground equipment which were
apparently rooted out and are lying on the said land.

 

-SD-

Commissioner

Sukkur Division, Sukkur.

    Respondent No: 02

 

 

10.              The Assistant Director Sindh Building Control Authority Sukkur in compliance of order dated: 11.02.2021 has also submitted his report which is re-produced as under:-

                             COMMENTS /COMPLIANCE REPORT

In compliance to the order dated 11.02.2021 passed by this
honorable Court in above constitution petition including connected
matter i.e. C.P No.D-86/2021, "Re-Saddam Hussain V/S P.O Sindh and others, the one of the answering respondent respectfully submit as under:-

 

1.         That the answering Respondent received the copy of
notice/intimation of AAG Sindh at Sukkur, regarding directions of this Honorable Court through above order dated 11.02.2021 but copies of the aforementioned petitions have not been received yet in order to enable the answering Respondent to file the comments in a proper manner.

 

2. That the answering Respondent visited the site and
verified the Official Record and found that no any Approval has been given for raising construction upon the subject area/property/plot, thus the construction upon the subject property is illegal and unlawful, furthermore the construction word found
stopped.

 

3. That it is also necessary to mention here that the alleged
project is of Town Committee Ranipur for self generation.

 

Hence the instant comments/compliance report further this Honorable Court is competent to pass any order which will be
complied in its true letter and spirit.

                                                                                                -sd-

Sukkur:                                                                       (INAYATULLAH BHUTTO)

Dated:25.02.2021                                                        ASSISTANT DIRECTOR

SINDH BUILDING CONTROL AUTHORITY SUKKUR

 

 

11.              We have also carefully examined the counter affidavit to main petition filed by the respondent No. 10, wherein in its para No.4 it is clearly mentioned that the property was used for water supply scheme. It is mentioned in the said para that “I further say that the respondent No.10 M/S Savera Builders Nawab Shah has entered into private partnership agreement/ contract on 29-07-2020 with respondents Nos. 8 and 9. Town Committee Ranipur, who is the owner of vacant space, measuring 5276 square yards as old water supply scheme Taluka Sobhodero, District Khairpur Mirs’ for construction of Town Shopping Center, to be constructed by the respondent No.10, who is the highest bidder offered highest rent within the period of one year.” Further the respondent No. 10 and 11 submitted certain documents with the cover of statement dated: 10-06-2021 and at Sr, No. 4 of the said statement “No Hitch Certificate” is mentioned which also scanned and it transpired from the said certificate that the disputed plot/land is situated at Old Water Supply Scheme Ranipur, the contents of said certificate are re-produced as under:


NO.HITCH CERTIFICATE

 

This is to certify that the plot situated at Old Water Supply Scheme Ranipur measuring 5276 sq. ft; is owned by Town Committee Ranipur and under the custody/occupying of Town, Committee Ranipur since long.

There is no any hitch to construct the commercial scheme/ shopping center on above said plot on self financing basis under Public Private Partnership Program.

 

CHAIRMAN

Town Committee Ranipur.

 

 

12.              From the above facts and the reports submitted by the Revenue Officials it is established that the disputed plot/land as per Khasra Ghirdwari Register for the year 1971-72 entered in the name of Central Government with remarks in the column No. 12 and 13 on page No: 29 referring the use of land as "water supply" and "Banjar Qadeemi" respectively so also the same was in use of the public as park as per the opinion of Judicial Magistrate that “at the land in question there was public park and later on same has been demolished for fulfilling their vested interests of private contractors and concern department, under the umbrella of public private partnership.” There is no any evidence that the disputed plot/land belongs to the Town Committee Ranipur or Government of Sindh. In view of the above the Town Committee Ranipur was not competent to execute agreement with any private person for utilizing the said plot for any other purposes; however the same was to be used for the purposes of amenity as mentioned in the revenue record produced by the Commissioner Sukkur Division Sukkur. We may observe here that public functionaries can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if the agreement was executed by the Town Officer and Chairman Town Committee Ranipur in favour of the respondent No.10, authorities concerned would not be bound to follow such illegal and void agreement of even a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law as has been held by the Honourable Supreme Court of Pakistan in case of Abdul Haq Indhar and others V. Province of Sindh and others (2000 SCMR 907) and

 Iqbal Hussain V. P.O Sindh through Secretary, Housing and Town Planning, Karachi and others (2008 S C M R 105).

 

13.         The Honourable Supreme Court of Pakistan in Suo Moto case No.14 of 2009, vide order dated 11.9.2009, has held as under:-

No one in authority, whosoever high office such person in authority may be holding, has any power, jurisdiction or discretion to distribute any public property or asset and in these cases extremely valuable lands, on nominal consideration, which land or asset essentially belong to the People of Pakistan. It was patently mala fide exercise of power. This Court further ordered that the grants of lands to the petitioner specially in the manner, the same was done are prima facie violative of Article 3 (elimination of exploitation) Article 25 (equality clause) and Article 31 of the Constitution of Islamic Republic of Pakistan which requires the State to endeavour to promote observance of Islamic moral standards and Article 38 of the Constitution which inter alia requires the State to secure the well-being of the people by preventing concentration of wealth in the hands of a few to the detriment of general interest. The grant of lands to the petitioner in these cases were reprehensible acts on the part of the highest executive authority in the province, totally alien to the concepts of Islam.

 

14.              We may observe that use of amenity/public property by the public for enjoyment or other facilities of life is covered by the word “Life” employed in Article 9 of the Constitution of Islamic Republic of Pakistan 1973; such right to enter into and use of the said property without any obstacle is a fundamental right as enshrined in Article 26 read with Article 9 of the “Constitution”. The public property/amenity property cannot be used for any purpose other than for which it was carved out, earmarked or reserved. The liberty and right of a person to have free for access to amenity property or to utilize and to enjoy the same cannot be taken away by converting such amenity into a commercial one or for any other purposes for extending benefit to a third person. The amenity/public property 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. Any violation in respect of rights relating to the access, use or enjoyment of amenity/public property or change in the use thereof, whether temporary or permanent, by any individual, Government, the relevant municipal authority and all their functionaries are duty bound to keep the amenity/public property free from all types of encroachments and claims; such functionaries and authorities exercising statutory powers are duty bound to discharge their functions and duties strictly in accordance with law otherwise any action by them contrary to law would not be sustainable and such authority shall expose itself to disciplinary action and, if any unauthorized construction or encroachment is made on any amenity/public property, the same, being illegal, has to be removed. However, it is for the Government to ensure that reasonably safe and good living is provided to the people of the city with all amenities which are essential to be provided by the State by building and zoning the cities in appropriate manner with playgrounds, schools, colleges, universities and hospitals easily accessible to the citizens with roads and transport. In case of Abdul Karim V. Nasir Saleem Baig and others (2020 SCMR 111), the Honourable Supreme Court of Pakistan disapproved the commercial activities on the land used for the purposes of amenity and has observed as under:-  

KW&SB have built an Officer Club and are running marriage halls on KW&SB land on Shahra-e-Faisal which is meant to be used for KW&SB for amenity purposes. The construction of the Club and allowing of marriage functions on such land is not permissible by law and should be stopped forthwith. The Club building or any other construction shall immediately be demolished from such land. There should be a public park on whole of such land and in such park proper facilities for the general public shall be provided including plantation of trees, laying down grass and other beautifications.

15.              The Honourable Supreme Court in another case of Municipal Committee, Chakwal V. Ch. Fateh Khan and others (2006 SCMR 688) has held as under:-

5. We have heard parties' counsel and gone through the impugned judgments as well as other material available on record carefully. There is no dispute that the plot in dispute vests in the occupants of the Deh being Shamlat, therefore, Municipal Committee had no right of whatsoever nature to utilize the same except for the purpose for which it was reserved and if it wanted to utilize the same for any other purpose, permission of the occupants of Deh was mandatory, as such, the appellate as well as the revisional Courts have rightly held that the Municipal Committee, without authorization, could have not converted amenity plot for commercial purposes. The findings of fact of both the Courts are based on correct appreciation of law and facts, thus, leaving no scope for this Court to interfere in the impugned judgment.

 

6. As far as the objection of the learned counsel regarding the competency of the suit after completion of construction is concerned, suffice it to observe that the Courts are not precluded from moulding the relief in view of the changed facts and circumstances of a case to shorten the litigation between the parties as it has been held in Amina Begun v. Ghulam Dastgir PLD 1978 SC 220.

 

 

16.              In view of the above facts and the circumstances of the case we are of the view that the Chairman Town Committee and Town officer Ranipur (Respondents No. 8 and 9) were not competent to entered into an agreement with the Respondent No. 10 (M/S Savera Builders) for construction of Shopping Center under the grab of “PUBLIC PRIVATE PARTNERSHIP CONTRACT” as they were not the owners of the plot in question and the plot was being used for the amenity purposes as Public Park and Water Supply Scheme and the said agreement having no legal effect in the eyes of law. The Respondents No. 2, 4 and 7 are directed to demolish all the construction made by Respondent No. 10 and 11 from the plot in question within 03 months from the date of this order. The Respondents No. 2, 4 and 7 are further directed to restore the Public Park and the Water Supply Scheme which were already in existence before the illegal construction raised by respondent No.10 and make sure that the said Public Park and Water Supply Scheme will be maintained to facilitate the public of the locality.

 

17.              The Petitions are allowed in the above terms.

 

Dated: 08.02.2022.                                                        J U D G E

 

J U D G E