IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

   Constt: Petition No. D- 1110 of 2020

                             Constt: Petition No. D- 1538 of 2017

                          

 

                          1. For orders o/objection at Flag-A

                                2. For orders on CMA 3297/21 (Ex.A).

                                3. For orders on CMA 3298/21 (1.R.1)

                                4  For orders on CMA 2806/21 (Review)

                                5. For orders on CMA 7040/2020.

                                6  For Hearing of main case.

                                                -.-.-.-.-.-.-.

         

 

Mr. Muhammad Ali Napar Advocate for petitioner in CP No.D-1110/2020.

 

Mr. Khuda Bux Chohan Advocate for Sukkur Municipal Corporation.

 

Mr. Muhammad Haseeb Jamali, Advocate for Sukkur Motal Company (Pvt.) Ltd.

 

Mr. Ahmed Ali Shahani AAG.

Ali Raza Pathan, Assistant Attorney General.

 

 

Date of hearing           02.06.2021

Date of order.             02.06.2021

 

 

                                                O R D E R

 

 

 

AFTAB AHMED GORAR, J;                              Instant petition filed on 20.10.2020, by the petitioner Danish Ali son of late Saddar-u-din Bhatti wherein he prays as under;

 

a)     That this Honourable Court may be pleased to issue writ against the respondents, whereby the act for cutting of valuable trees from Latif Park Old Sukkur and not planting the 7000 trees as per program in the city as assured by them before this Honourable Court in earlier petition as stated supra may kindly be declared as null and void and ab initio in the eyes of law.

 

b)     That, this Honourable Court may be pleased to direct the respondents for renovation of Numaish playground and Numaish place located at old Sukkur to provide the children of area proper environment of sports activity.

 

c)     To direct the respondents for utilizing the vacant Banks of Raees Canal, Dadu Canal and Kheerthar Canal for the purpose of public parks, exclusive women park/walking track and in order to greener the city and save it from pollution and hygienic environment as well as to save the said area from re-encroachment from the evil eyes of the land grabbers.

 

d)     To direct the respondents belonging to National Highway for providing “U” turn or over head-bridge or under bypass on the National highway leading from Sukkur towards the general bus stand in front of NICVD” Hospital, which will be easy access to reach the serious patients immediately to said Hospital, bedsides this three bridges over the canal infront of said Hospital which will also connect all societies of Sukkur with Sukkur Township, National Highway and towards the proposed public parks and women park and said Hospital.

 

e)     To direct the irrigation authorities to properly and appropriately maintain the public park located at the Bank of Dadu Canal adjacent to Military Road leading from Lab-e-Mehran to City bypass and to furnish the list of delinquent  officials who are deployed for maintaining the said park and also furnish report  with regard to the allocation of budget/funds in respect of its maintenance.

 

f)       To direct the respondents belonging to Municipal Administration  Sukkur to submit complete and comprehensive report regarding re-structuring  the Ghazi Abdul Rasheed Park situated at Minara Road Local Board, Sukkur.

 

g)     To direct the Secretary Home Department for establishment of women Police picket/post at proposed Exclusive ladies park/walking track for providing save security and protection to ladies at said parks.

 

h)     To direct the Anti-Corruption as well as NAB authorities that if any embezzlement of the funds which were allocated/sanctioned for the purpose of plantation the trees in the City as well as maintaining the public parks and playgrounds of the City is occurred, in order to avoid from further devastation to national exchequer.

 

           

 

2.         Notices were issued to the respondents. The official respondents in attendance were filed their respective comments manifestly on prayer clause-(b) and (f). At the helm of affairs, this Court passed numerous orders on various dates. On 16.03.2021 the officers in attendance filed their comments and this Court in the light of their reports passed order. In para-2 of the order dated 16.03.2021 reflects that the Deputy Commissioner, Sukkur in his report stated that he has verified the record in respect of Bolan Petroleum Service lying between 3rd and 4th Avenue of Barrage Township on lease and was renewed/extended and later on it was expired on 30.07.2014 and after 30.07.2014 there was no extension. This Court took efforts resultantly the said petrol pump was put in auction in presence of learned District & Sessions Judge, Sukkur and said petrol pump was rented out to the tune of Rs.780,000/- per month. On account of Rent of said Petrol Pump Rs.23,40,000/- has been deposited by new tenant/operator which is equal to 03 months’ advance rent, said amount has been deposited in the Government account. The Executive Engineer (Irrigation) Barrage Division, Sukkur at his own accord mentioned each and every facts before this Court and this Court in para-5 of the said order has reiterated the same. For the sake of convenience the para-5 of the order dated 16.03.2021 is being reproduced as under;

 

“The executive Engineer Barrage Division Sukkur in his report ermphazised that a plot measuring 78078 Sq. ft” between Dadu and Rice Canals belonging to the Irrigation Department was leased out to the Sukkur Municipal Corporation for 50 years for construction of a Tourist Hotel at the rate of Rs.100/- per annum but such agreement was not executed by the Municipal Authorities. Thereafter, Govt. of Sindh Housing Town Planning, Local Government and Rural Development Department, Karachi vide letter No.SOIV-MC-I/14(7)/86-SMC dated 30.06.1986 had allowed to Sukkur Municipal Corporation for sale of their shares in Sukkur Motal Company (Pvt) Ltd. (Hotel Inter-Pak Inn Sukkur). The report further reflects that an agreement to sale the shares to Abdul Rehman was entered on 17th July, 1986 though the property belongs to the Irrigation Department and the Department of Housing, Town Planning Local Government and Rural Development had no authority to sell  the Irrigation Property in favour of anybody. In this regard Sukkur Motal Company (Pvt) Ltd. had filed Suit No.1170 of 1989 v. Director FIA, Executive Engineer Barrage Division Sukkur and others before Principal Seat at Karachi which was subsequently dismissed as withdrawn vide order dated 07.03.1993. Thereafter Executive Engineer issued a notice bearing No.GC/G-148/1425 dated 18.05.1993 to the Administrator Sukkur Municipal Corporation Sukkur communicating him that the grant stands forfeited for deliberate breaches of the conditions of agreement, failure to pay rent, wrongful converting the purpose of grant from Tourist Hotel to a full-fledged hospice Hotel and alienated the use and possession for the granted land by entering into agreement with third parties and subsequently transferring the same to other agencies without seeking permission from the concerned authorities i.e. Irrigation Department however, no any agreement regarding inclusion of PIA/Sukkur Motal Company (Pvt) Ltd.  signed by the Irrigation Department prior to 1993 and there had been only one agreement signed between Sukkur Municipal Corporation and Executive Engineer Barrage Division Sukkur for the year, 1971. The report of Executive Engineer Barrage Division Sukkur also reflects that record available with Barrage Division Sukkur and provided by the runners of Inter-Pak Inn Hotel there appears well-played game to usurp the precious and identical property of the Irrigation Department in the cover of lease.

 

3.         Mr. Muhammad Haseeb Jamali, Advocate files Vakalatnama on behalf of Sukkur Motal Company along with Photostat copy of order dated 19.12.2013 passed by Honourable Supreme Court of Pakistan in CMA No.299-K of 2013 covered by statement and sought time to file proper comments/objections. Time was allowed. Mr. Muhammad Ali Naper Advocate for petitioner also filed an agreement covered by statement and he also sought time to file application to implead Sukkur Motal Company (Pvt) Ltd. as a party.  On later date i.e. 30.03.301 Mr. Muhammad Ali Naper, Counsel for petitioner filed application u/o 1 R. 10 CPC r/w Article 203 (E) Sub-Article-II of Constitution to implead intervenor M/s Sukkur Motal Company (Pvt) Ltd. as a party. Notice waived by Counsel appearing on behalf to M/s Sukkur Motal Company (Pvt) Ltd. Counsel for intervenor and sought time to file objections/comments. On said date, Counsel for petitioner filed application u/o VI R. 17 CPC and prayed to allow the petitioner to amend the memo of petition mentioning proposed amendment in prayer clause of instant petition which was allowed, in compliance thereof Counsel for petitioner filed amended memo of petition by adding prayer clause-(C-I).

 

4.         In the meanwhile, Counsel for M/s Sukkur Motal Company filed application u/o 1 R.10 CPC (CMA No.2806 of 2021) to array M/s Sukkur Motal Company (Pvt) Ltd. as respondent No.19 in the petition, as the intervenor being necessary party, and also filed a review application (CMA No.3379 of 2021)

 

5.         Thereafter, arguments of Mr. Muhammad Ali Naper and  Mr. Muhammad Haseeb Jamali have been heard and matter was adjourned today for hearing arguments of learned AAG. Today, arguments of Mr. Ahmed Ali Shahani, learned Assistant Advocate General have also been heard at length.

 

6.         Mr. Muhammad Ali Naper, Counsel for petitioner argued that the proposed intervenor is proper and necessary party in the matter; that the Hotel Inter-Pak is located on the banks of Rice-Canal and Kheerthar Canal and in prayer clause there is specific prayer for the banks of said Canal; that Irrigation Department is specifically mentioned that the hotel Inter-Pak has been leased out on meager rate at Rs.100/- per year; that after receiving compliance report from Executive Engineer this Court called report regarding lease of said  hotel whereupon the proposed intervenor himself through his representative has filed VAkalatnama on behalf of Hotel Management thus, filing of vakalatnama on their behalf is tantamount to become party in the proceedings. He argued that impleading of the proposed intervenor as party in the proceeding is just and proper in order to reach to the right conclusion in the matter in hand and the application filed u/s VI R. 17 CPC is proper. He lastly prayed that the lease, if any, over Government property without approval is to be declared as null and void.

 

7.         Conversely, Mr. Muhammad Haseeb, Jamali, counsel for intervenor M/s Sukkur Motal Company (Pvt) Ltd. argued that order 6 Rule 17 application (CMA No.2807 of 2021) could only have been considered for adjudication on merits, after providing opportunity of hearing to the party against which such order is sought and rights of M/s Sukkur Motal Company (Pvt) Ltd. may be protected as envisaged under Article 10-A of Constitution of Islamic Republic of Pakistan. He mainly focused that judicial proprietary as well as legal implication demands that firstly the court has to determine if an application u/o 1 R.10 CPC is made out or not or if such application is granted then application u/o VI Rule 17 could be considered for adjudication. He argued that if the original plaint is examined then there is no cause of action or even grievance against the M/s Sukkur Motal Company (Pvt) Ltd. which is otherwise holding a legal and valid title of the piece of land and pray to review the order dated 30.03.2021 as the amendment sought is not in line with the facts and grounds of the petition and such amendment cannot be sought for to the extent of allowing order VI R. 17 CPC. According to him since the intervenor company has got the lease of the land in question, which is a registered documents, as such the same cannot be done away except in a proper Civil proceedings. He submits that if Irrigation Department considers that lease is improper, they may approach the proper forum. He lastly argued that if order dated 30.03.2021 is not reviewed to the extent of allowing order VI R.17 CPC then applicant under order 1 Rule 10 CPC will become infructuous as well as legal position of Article 10-A of Constitution will be abridged.  He relied upon case of DR. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others (2014 SCMR 122), 2. Mian Muhammad Nawaz Sharif and others v. Muhammad Habib Wahab Al-Khairi and others (2000 SCMR 1046), 3. Akhtar Abbas and others v. Nayyar Hussain (1982 SCMR 549), 4. Government of Balouchistan through Secretary Member, Board of Revenue and another v. Ghulam Muhammad and 4 others (2001 SCMR 19), 5. Muhammad Saleem Naseem v. Additional District Judge, Dunyapur, and 12 others (2021 CLC 87), 6. Jehan Khan v. Province of Sindh and others (PLD 2003 Karachi 691), 7. Hafiz Muhammad Aslam v. Province of Sindh through Secretary Government of Sindh and 16 others (2015 MLD 1156) 8. The Secretary Punjab Public Service Commissioner, Lahore and others v. Aamir Hayat and others (2019 SCMR 124), 9. Altaf Ibrahim Qureshi and another v. Aam Log Ittehad and others (PLD 2019 Supreme Court 745), 10. Syed Nazar Hussain Rizvi v. Zahoor Ahmed and another (PLD 2005 Supreme Court 787), 11. Muhammad Akber v. Masood Tariq Baghpati and others (2019 CLD 1), 12. Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 Supreme Court 345), 13. Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others (2011 SCMR 279) 14. Muhammad Ramzan v. Province of Sindh through Secretary Home Department and 16 others (2020 YLR 537), 15. Fazeelat Agha v. Chief Settlement Commissioner, MBR, Punjab Lahore and others (2019 SCMR 417), 16. Muhammad Usman Siddique v. Mukaram Alam Siddique and 2 others  (2021 CLC 553), 17. Muhammad Ateeq and 5 others v. Muhammad Shafique and 4 others (2017 MLD 1067), 18. Engineers Study Forum (Registered) and another v. Federation of Pakistan and others (2016 SCMR 1961) and one unreported authority passed by Honourable Supreme Court of Pakistan in Civil Petition No.654-K, 655-K, 679-K, 684-K to 659-K of 2018.   

 

8.         Mr. Ahmed Ali Shahani, learned Assistant Advocate General Sindh has argued that order dated 30.03.2021 to the extent of allowing application filed u/o VI Rule 17 CPC is just and proper as the review also cannot be allowed on the discovery of some new material if such material was available at the time of hearing of the trial, the appeal or the revision, as the case may be. The Counsel for intervener filed Vakalatnama on behalf of M/s Sukkur Motal Company and filed application to implead as a party. He further submitted that Executive Engineer Barrage Division is not empowered to lease Inter-Pak Inn Hotel without approval of competent authority and he only partake the proceedings if authorized by the competent authority that was not done nor obtained any NOC from Secretary Irrigation Department. Even otherwise, the Hotel Inter-Pak Inn being commercial property cannot be leased out without open auction. He prayed that lease of Hotel Inter-Pak Inn may be cancelled being null and void. He relied upon case of Abdul Hakeem Hakeem v. Khalid Wazir (2003 SCMR 1501), 2. Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others (2017 SCMR 118), 3. Muhammad Baqir v. Mst. Ghulam Parwar  and others (2017 SCMR 1062) and 4. Messrs Balouch Distillery and Sugar Mills through Chief Executive v. Secretary Industries and Commerce Department, Government of Sindh and another (PLD 2017 Sindh 313).

 

9.         Heard learned Counsel for parties at length and perused the record meticulously.

 

10.       The main contention of learned Counsel for intervenor M/s Sukkur Motal Company (Pvt) Ltd. is that if application u/o VI Rule 17 is granted then his application under order 1 Rule 10 CPC will become infructuous. For the sake of convenience, the order VI Rule 17 CPC reads as under;

 

“Amendment of pleadings; The Court may at any stage of the processing allow either party to alter or amend his pleadings in such manner and in such terms as may be  just, and all amendments  shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”. 

 

 

11.       We consider that the contention of Mr. Jamali that a registered document cannot be cancelled without proper civil proceedings bears weight. The lesser of the said lease i.e. IRRIGATION DEPARTMENT can only. The made of leasing the property to Sukkur Motel Company and the land rent may speak volume regarding such registered documents but the same cannot be cancelled in this petition. So far as to the contention of Mr. Jamali regarding modification of prayer clause, we cannot swallow such arguments.

 

12.       The order dated 30.03.2021 reflects that Counsel for petitioner filed application u/o VI Rule 17 CPC and petitioner was allowed to amend the proposed amendment in prayer clause of instant petition. The prayer clause-(C-1) is being re-produced as under;

 

C-1.     To declare that the lease agreement executed by the Executive Engineer Barrage Division on behalf of the Governor of Sindh in favour of the Sukkur Motel Company (Pvt) Ltd vide dated 23.0.7.1993, for leasing out an area of 78078 Sq. ft” for the purpose of establishment of building consist of ground floor and upper story for Hotel on very meaner of Rs.100/- per year, as the said premises is located in the heart of City is Prime Government property and leasing out of it on very meager rate is showing the reckless attitude of the officials against the National assets.

 

In the existing position of affairs, the Counsel for M/s Sukkur Motal Company was very much present in the Court when the order was passed thus, the impugned order dated 30.03.2021 is just and proper and cannot be reviewed as the review had a very limited scope and it was only to rectify any mistake apparent on its face or of record. However, the respondent No.1 Secretary Irrigation is directed file Civil Suit for cancellation of lease-deed in respect of lease of Inter Pak-Inn Hotel before competent Civil Court. We consider that after such directions, the ground of review itself becomes redundant.

 

13.       The Secretary Finance Department Sindh, Secretary Local Government Department Sindh are directed to release the allocated funds for development of Numaish Ground/Mumaish Gah, utilized the same for the scheme, namely, “Development, Landscaping and Paths at Ghazi Abdul Rasheed Park, Sukkur and Construction of Numaish Ground and Numaich Gah Park along with boundary Wall as Non-ADP Scheme for the current financial year 2020-21. The petitioner in prayer clause-(d) prayed to construct Over-head Bridge from NICVD towards the societies. The Secretary Provincial Highways is also directed to prepare PC-I, in respect of Over-head Bridge infront of NICVD Hospital towards NADRA Regional Head Quarter, Hamdard Society Road, Sukkur in order to easy access of patients of Sukkur City to NICVD.

 

            In view of above, these petitions stand disposed of along with listed applications.

 

14.       Before parting with the case, it is very much essential to note that as per report filed by Executive Engineer Barrage Division, Sukkur, the lease period of Bolan Petroleum Service Military Road Sukkur was expired on 30.07.2014 and since, then it was running without any lease and Irrigation Department has not taken any efforts. This Court ordered that said Petrol pump put in auction and was leased out. In such a situation matter is being referred to the Director General NAB to probe into the matter and fix the responsibility upon delinquent Officers of Irrigation Department with the proposed action under compliance report to this Court through Additional Registrar within 15 days.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ihsan/-