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