IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Constt: Petition No.D–518 of 2020
Constt: Petition No.D–1013 of 2019
DATE
OF HEARING |
ORDER WITH SIGNATURE OF
JUDGE. |
1.
For orders on O/objection at
flag-A.
2.
For orders on CMA No.2414/20
3.
For hearing of main case.
4.
Date of hearing. 31.03.2021
Mr.
Mehfooz Ahmed Awan Advocate for petitioners in C.P. No. D-518 of 2020
Mr.
Dareshani Ali Hyder ‘Ada’ Advocate for respondents
Mr.
Shaharyar I. Awan AAG.
Mr.
Ali Raza Pathan Assistant Attorney General.
Mr.
Mujeeb-u-Rehman Soomro Special Prosecutor NAB.
********
O R D E R
AFTAB AHMED GORAR, J; Both these petitions are being disposed of by
way of common order. In Constitution petition No.D-518 of 2020, the petitioners
have prayed for restoration of the status of the Amenity plot reserved for
playground into its original position as they are aggrieved of change in Master
Plan whereby the Amenity plot reserved for playground in Sindh Cooperative Housing
Society, Imdad Ali Awan Road, Sukkur has been converted into residential plots
without any consent or opportunity of their being heard, which caused detriment
to the rights/interest appurtenant to the immovable properties of Sindh
Co-operative Housing Society Limited Sukkur. While in Constitution Petition
No.D-1013 of 2019, the petitioners therein have prayed for protecting their
properties so also seeking restraining orders against the respondents for not
interfering in their peaceful possession.
2. In
Constitution petition No.D-518 of 2020, the petitioners stated that they are
registered members of allottees of the plots in the Sindh Co-operative Housing
Societies Limited, Sukkur and title documents in shape of record of rights are
in their favour. It is alleged that in the said Society the spaces were also
reserved for establishing the School, Public Park, Playground, Maternity Home/
Hospital, Mosque etc. as amenity plots, such sketch was also approved by the respondent
No.3 who is competent authority. It is further averred that office bearers of
Sindh Co-operative Housing Societies Limited, Sukkur had illegally allotted the
plots in playground to private persons and persons to whom the plots have been
allotted in play ground who are constructing the houses with the help of office
bearers of Sindh Co-operative Housing Societies Limited, Sukkur to which
petitioners resisted and made protest against illegal allotments in Amenity
plot of playground. The office bearers of said society trying to encroach the
amenity plot which was reserved for playground and had demolished the boundary
wall of playground for their illegal gain and they encroached sold the same
spaces reserved for the playground which is against the rules and policy of the
Societies Act.
3. In Constitution petition
No.D-1013 of 2019 the petitioners stated that the Administration of the Society
allotted plots to several persons after completing codal formalities. In the
year, 1995 the District Government, Sukkur with the orders of Commissioner
Sukkur Division Sukkur reserved the plots of ‘C’ category Admeasuring 150 Sq.
yards each and occupy about 69 plots for the construction of playgrounds/sports
complex of the society which plots were already allotted to the different
persons while in the year, 1997 the Assistant Director Town Planning Department
Division Khairpur approved the revised plan with certain major amendments vide
letter dated 12.05.1997 while in the said revised plan the plot reserved for
School and Park were converted for construction of office of Bureau of
Statistics Govt. of Sindh and after construction of said office handed over to
NAB authorities where NAB office Sukkur is established. The plots which were
occupied for construction of play ground/sport complex were taken into
possession without giving any compensation to the allottees and
playground/sport complex was constructed upon the said plots of society and
made part of the revised plan as mentioned in the letter dated 15.05.1997 however,
the affectees of plots of ‘C’ category several time approached to the
Management of Society for alternate/ compensation but of no avail.
Subsequently, members of Society approached the Govt. of Sindh Town Planning
Department, Hyderabad for revision of Master plan of the Society and vide
letter No.25.10.2017, Director Town Planning Department revised/regularized the
playground/sports complex already constructed on the residential plots of
category ‘C’ and on area which was already reserved for playground shifted and
revised/altered for residential purpose and such change was made in the revised
plan both plots were shifted to each other i.e. residential plots into
playgrounds and plots for playgrounds into residential and were compensate as
an alternate, allowed them to occupy plots of 150 Sq. Yards whereby the
petitioners purchased the same and started construction over there for their
residential purpose which was stopped by the NAB authorities with the help of
DSP Site Area and SHO Abad, hence this petition.
4. Notices
were issued to the respondents. In response to notice, respondent No.9 Mukhtiar-e-kar (Revenue) Taluka New Sukkur filed
statement dated 27.10.2020 wherein he has stated that according to entry No.75 of Dakhal Kharij
register dated 17.09.1981 of Deh Rahooja, an area 84-53 acres is entered into
the name of Sindh Co-operative Housing Society and in the month of April, 2020,
the construction work was stopped at the playground of Sindh Co-operative
Housing Society as per directions of Deputy Commissioner Sukkur. The National
Accountability Bureau authorities also issued a letter for blocking further
transfer and allotment of playground made by the Secretary of Society. Mukhtiar-e-kar in his report stated that
according to Map of Society the disputed area is shown as playground. In
written reply to the petition, the impugned conversion was not denied by the
respondents No.10 and 11, however, it was asserted that the Assistant Registrar
Cooperative Societies Sukkur referred recommendations to the Director Town
Planning Sindh Hyderabad vide letter No. ARCS/1378 dated 18.09.2017 for
re-amendment in Zonal Plan and Director Town Planning after completing codal
formalities as required under the law shifted/created 50 number of residential
plots admeasuring 150-0 Sq. Yards.
5. Learned
counsel for the petitioners in Constitution Petition No.D-518 of 2020 argued
that the petitioners are registered members as well as allottees of the plots of
Sindh Co-operative Housing Society Limited, Sukkur having registered title
documents in their names coupled with record of rights; that the respondents 10
and 11, the office bearers of Sindh cooperative Housing Society illegally
allotted some plots in amenity plot
reserved for playground to private persons who were
constructing the houses to which the inhabitants of the Society protested
against said illegal allotments in amenity plot of playground, such news was
published in numerous newspapers; that the respondent No.4 had taken serious
notice of illegal allotments in amenity plot of playground and sealed the same
but later on the present Management of Society demolished the boundary wall of
amenity plot (annexure-C); that the
inhabitants of the Society moved application to Chairman NAB for taking action against office bearers of
Sindh Co-operative Housing Society, Sukkur for conversion of amenity plot of
playground into residential for their personal monetary benefits and they
prayed for its restoration; that NAB authorities has made discrete inquiry in
to the matter and reported the matter to high-ups that Management/Office
bearers of Sindh Co-operative Housing Society, Sukkur in connivance with
Assistant Registrar Co-operative Housing Society dishonestly and fraudulently
converted Amenity plot reserved for playground at Sindh Co-operative Housing
Society, Sukkur to private persons and thereby they have misused their
authorities and have committed Criminal breach of trust and they are liable to
be prosecuted. Lastly, he asserted that
such an arbitrary change in the Master Plan,
in absence of any consent from the petitioners (Members of the Housing
Society), is against the law and prejudicial to the interest and rights of the
petitioners as well as other owners/inhabitants of the Society. However,
6. None
has appeared on behalf of the petitioners in Constitution Petition No.D-1013 of
2019.
7. Learned
counsel for the respondents opposed the submissions, contending that the respondent
No.11 has no concern with the allotment of plots; that the Commissioner Sukkur
Division Sukkur vide order dated 05.12.1994 forcibly occupied plots and Government
of Sindh constructed Sports Complex without passing any award however, no
compensation was made to the allottees and deprived of the members of Society
from the legal and legitimate right; that Assistant Town Planning Sukkur
Division Sukkur through his letter dated
12.05.1997 made re-amendment in the
Zonal plan of Sindh Cooperative Housing Society, later on the Management of the
Society on the application of members of
the Society approached to Assistant Registrar Cooperative Housing Societies who
recommended the same to the Director Town Planning Sindh, Hyderabad vide letter
No.ARCS/1378 dated 18.09.2017; that the Town Planning Department Hyderabad
re-amend the Zonal plan of Sindh Cooperative Housing Society, Sukkur vide
letter No.DTP/SKP-108/609 Hyderabad dated 25.10.2017 however, no any illegal
encroachment has been committed by the respondent No.11 nor he has made any changing
in Master Plan of the Society and has acted strictly according to Societies Act.
He explained that Executive Board is competent to bring any change in the
Master Plan keeping in view the requirements/convenience of the
inhabitants/owners/affectees and in the interest of the society. On Court’s
quarry, it was not denied that the powers of Executive Board are still unstructured
as rules or regulations for exercising these powers were never framed. It is
also an admitted position that resident owners in the vicinity of Sindh
Co-operative Housing Society were not associated in the process, through notice
or otherwise, before taking the impugned decision.
8. We
have heard parties and perused the record at length.
9. On
27.10.2020, Mukhtiar-e-kar (Revenue)
Taluka New Sukkur in attendance filed comments in Constitution Petition No.D-518
of 2020 along with certain documents including letter of the Additional
Director (Staff) National
Accountability Bureau, Sukkur dated 20th April, 2020 which reflects
that present management of Sindh co-operative Housing Society Sukkur illegally
got converted playground into residential plots in collusion with
officers/officials of Town Planning Department. Moreover, they have sold some
of the plots on the pretext of compensation to affectees of PCB Ground in collusion
with influential members of land grabbers and those members of land mafia have
attempted to occupy the said plot and have illegally been carrying out
development work on plot reserved for playground and on pursuant to order dated
27.10.2020 Assistant Commissioner
New Sukkur, respondent No.7 filed compliance report dated 10.11.2020 wherein he
categorically mentioned that construction work over the plot reserved for
playground was stopped and Mukhtiar-e-kar
New Sukkur was directed to remain vigilant so that the Amenity plots may not be
misused for other purposes however, this Court passed restraining order in
respect of construction work over the Amenity/reserved plots for playground and
also restrained to sell the same. In the meanwhile, the Additional Director
(Staff) National Accountability Bureau Sukkur was directed to probe into the
matter as to how the Office bearer/Secretary Sindh Housing Society, Sukkur
allotted the reserved plots of playground to the petitioners in Constitution
Petition No.1013 of 2019 and others.
Pursuant to the order dated 10.11.2020, Faheemullah
Wagan, I.O. NAB Sukkur in para-3 of his reply submitted that Amenity plots
reserved for benefit of the Society have
also been allotted to the family members and friends of the Management and
their names are mentioned in his statement however, he sought further time to
finalize the Investigation. In the meanwhile, the said Faheemullah Wagan I.O.
of the case was transferred and the investigation was entrusted to Asher
Abbasi, I.O. NAB, Sukkur who in para-3 of his report dated 26.01.2021 submitted
that Management Committee headed by Qamaruddin Sahito (Chairman), Irshad Ali
Jatoi (Secretary), Hadi Bux Narejo, Abdul Ghaffar, Naimatullah, Abdul Rauf and
Nizakat Ali Directors have unanimously decided that the land reserved for playground
in Sindh Cooperative Housing Society may be converted into plots of 150 Sq.
Yards in order to accommodate members of the society whose plots were overtaken
by the District Administration for construction of Stadium. He however,
disclosed the present status of the playground and other Amenity plots. The
said I.O. in his another report dated 03.03.2021 (available on record) submitted that plots# 226, 233, 258, 265,
282-A, 215-A, 171-A, 117-A, 117-B, 18-A and 89-A were directly allotted without
publishing notice in any newspaper or availing all possible ways to invite
other interested members. Resultantly other members of the Society were
deprived of any opportunity of participation in the allotment process. This is,
prima facie, in violation of Section 10(1) of Sindh Disposal of Urban
Land Ordinance, 2002 which reads as “Amenity plots shall be disposed of to such
person or body of persons or organization in such manner and on such terms and
conditions as may be prescribed; provided that the amenity plots reserved for
health and educational Institutions shall be disposed of through open public
auction at a price not less than the market price”. The report further reflects
that land of Sindh Co-operative Housing Society reserved for patrol pump,
health and educational purposes were allotted to persons merely on account of
personal relations of office-bearers of the Society. Mr. Mujeeb-u-Rehman
Soomro, learned Special Prosecutor NAB sought four weeks’ time to finalize the
inquiry in the matter and as a last and final chance four week’s time was
allotted with directions to I.O. NAB Sukkur to finalize the inquiry within
stipulated time and submit such detailed report before this Court on the next
date and matter was adjourned for today i.e.31.03.2021.
10. Today,
learned Special Prosecutor NAB places on record a detailed report which shows
that I.O. NAB Sukkur (Asher Abbasi)
recommended that a reference may be filed at Accountability Court, Sukkur
against accused Irshad Ali Jatoi, Secretary Sindh Cooperative Housing Society Sukkur, Bashir
Ahmed son of Allah Dino Abbasi Ex-Assistant Registrar Cooperative Societies
Sukkur, Muhammad Arif Memon Ex-Incharge Town Planning Department Government of
Sindh Hyderabad, Allah Warayo son of Allah Bux Kalhoro, Hadi Bux son of
Muhammad Usman Narejo, Manzoor Hussain son of Fazal Muhammad Shaikh, Muhammad
Akber son of Altaf Ahmed, Muzaffar Hussain son Noor Muhammad Jatoi, Nizakat Ali
son Karam Ali Jatoi, Rashid son of Muhammad Yaseen Baig and Muhammad Asif son
Mehmood Ahmed, as they connived, abetted and assisted each other in
dishonest and fraudulent conversion of an Amenity plot reserved for playground
at Sindh Co-operative Housing Society, Sukkur thereby misused their authorities
and committed criminal breach of trust which is an offence under section 9(a)
read with Section 10 of NAO, 1999. The I.O. of the case is fully empowered to
send reference to the Accountability Court against aforementioned delinquents
as per his recommendations, rule and policy and shall act strictly under
National Accountability Ordinance, 1999.
11. The
conversion was termed as radical change/modification in the original scheme.
The findings, based on law laid down by Apex Court, are reproduced:-“
In Abdul
Razzaq's case PLD 1994 SC 512 and the relevant observations are as follows:--
"We may point
out that even under, the order, the K.D.A. is not authorized to change the use
of any amenity plot without inviting objections and without obtaining the order
of the Government.
It
may be stated that in spite of presence of the above unambiguous Article in the
Order the successive Provincial Governments overlooked the above Article and
converted amenity plots into commercial or residential plots and thereby denied
to the residents of Karachi inter-alia parks and playgrounds which contributed
towards environmental pollution in the city. A tendency has also developed to
convert the use of a residential plot into commercial or instead of
constructing residential units in the form of bungalows to erect flats. From
the above-quoted passage from Encyclopedia Britannica, it is evident that the
concept of modern city planning inter alia envisages the orderly arrangement of
parts of the city, residential, business
and industrial etc. so that each part could perform its functions with minimum
cost and conflict. The paramount object
of modern city planning seems to be to ensure maximum comforts for the
residents of the city by providing maximum facilities referred to
hereinabove. It must, therefore, follow
that a public functionary entrusted with the work to achieve the above
objective cannot act in a manner, which may defeat the above objective.
Deviation from the planned scheme will naturally result in discomfort and
inconvenience to others.
"In
Ardeshir Cowasjee's case 1999 SCMR 2883 and the relevant observation is as
follows:--
"We may point out that even
under the Order, the K.D.A. is not
authorized to change the use of any amenity plot without inviting objections
and without obtaining the order of the Government."
By virtue of section 48 of Lahore
Development Act provisions of Lahore Improvement Trust Act are applicable
unless and until the same are inconsistent with the provisions of the W. P. No.
11070 of 2014. Lahore Development Act, 1975: Therefore, sections 13 and 14 and
other provisions of Lahore Improvement Trust Act, 1992 are applicable. The
aforesaid provisions cast duty upon the respondent No.1 for the purpose of
change in the Scheme the respondent had to invite objections. In arriving to
this conclusion I am fortified by Sh. Ahmad Din's case 1984 CLC 3304. It is
admitted fact that in the present case no objections were invited in terms of
the aforesaid provisions. Therefore, per se alleged the conversion of the
earmarked plots for school and welfare centre and public hall for residential
purpose is illegal and contrary to the lay-out plan of the L.D.A. on the
well-known principle when a thing is to be done in a particular manner, it must
be done in that way and not otherwise. In arriving to this conclusion I am
fortified by the judgments of the Honourable Supreme Court in Atta Muhammad
Qureshi's case PLD 1971 SC 61 and Dr. Abdur Rauf and others' case 1991 SCMR
483. In view of the aforesaid
discussion and principles laid down by the superior Courts it is not a case of
re-allocation of the scheme but it is a case of radical change/modification in
the original schemes.”
6. The Honourable Supreme Court in Sheri-CBE and
others v. Lahore Development Authority and others
(2006
SCMR 1202) case observed that “Conversion of a playground, commonly known as
“Doongi Ground”, into a cinema theater, shopping arcade and bowling alleys was
in question. Relevant part from judgment
in Shehri-CBE’s Case (supra) is reproduced hereunder:-“
10. The aforesaid makes it clear and obvious that
in any development scheme at its inception if a particular area is designated
as a park/playground, and upon such
representation, the properties in the vicinity are acquired by inhabitants, a
vested right is created in their favour and the public at large in respect of
such park/playground. This right in fact is a necessary appendage to the right
to life as enshrined in Article 9 of the Constitution and right of leisure as
referred to in Article 39 of the Constitution. Thus in the original plan of the
respondents to convert the Doongi Ground to any other use would have offended
against the rights of the petitioners. ”
12. The law laid down, ibid, by Superior Courts, shows that the interest of the owners of
immovable property in amenity plots, reserved for convenience and comfort of
the residents, is a right enforceable by invoking constitutional jurisdiction
of this Court. A sanctioned Master Plan, showing such amenity plots/area,
cannot be altered without inviting objections or obtaining no Objection
Certificates (“NOC”) from the residents. Any modification in the plan, which
alters or radically changes the sanctioned scheme, to take away the comfort or
convenience provided through amenity plots/area, is a fraud upon the residents,
who purchased the immovable properties on a representation through sanctioned
plan.
13. The impugned conversion is found to be in
violation of the laid down law. Admittedly, petitioners were not associated by
inviting objection or seeking NOC. Provision for places of
the public utility is compulsory on this premise under the law relates to town
planning. Taking away such amenities to
achieve commercial benefits would certainly prejudice the quality of life, hence
is against Article 9
.
A
citizen, who purchases a property in exercise of his fundamental right under
Article-23 has been ensured under Article 24 that he shall not be deprived of
the property unlawfully. The amenities available to such property are
necessarily appurtenant to the property, because value of a property in terms
of its purpose would diminish if those are removed through alteration. To deprive a citizen from the purpose of
property, for which it was purchased on representation through sanctioned plan,
would amount to partial deprivation of the property. Safeguard to the purpose of property is
inclusive in Article 24, to ensure which, laws like. The Easements Act, 1882 and condition, under Town
planning laws, to obtain NOC from the
neighbouring owners before allowing commercialization of a residential plot.
The right to purpose of a property is
an incorporeal right, which
is enforced beyond
boundaries of the property,
by restraining any act, which
might remotely defeat the purpose of the property. If appurtenant amenities of
a residential plot are removed, it shall remain a plot but not for the purpose
of residence. Hence, removal of
amenities being detrimental to the purpose of a property is against the right
ensured under Article 24.
14. For the reasons noted above, the impugned
action of converting the Amenity Plot reserved for playground situated at Sindh
Cooperative Housing Society, Sukkur into residential plots by the present as
well as previous Management of Sindh Cooperative Housing Society, Sukkur is
declared to be against the rights of petitioners of Constitution Petition
No.D-518 of 2021 and others and a
result of an arbitrary exercise of power, therefore, is set aside. Accordingly,
the respondents are directed to restore the amenity Plot reserved for
Playground situated at Sindh Cooperative Housing Society, Sukkur to its
original position in accordance with the sanctioned plan of this area.
15. Since the disputed questions of the fact
and complicated questions of law involved in the Constitution Petition D-1013
of 2019 and it is sole domain of Civil Hierarchy to decide the claim of the
petitioners in the said petition i.e. D-1013 of 2019 after recording proper
evidence. Accordingly, C.P No.D-1013/2019 being devoid of any merit stands
dismissed leaving the petitioners therein at liberty to avail the remedy before
the competent Court of law/forum if they are so advised.
In view of above, both the listed
petitions i.e. Constitution Petition D-1013 of 2019 and Constitution Petition D-518 of
2019 along with listed applications are disposed of in the above
manner. Copy of this order be communicated to Commissioner Sukkur Division,
Sukkur, Deputy Commissioner, Sukkur, Assistant Commissioner Taluka New Sukkur
and Director General NAB, Sukkur for compliance.
16. Before parting with the case, it is very
much essential to note that since, Irshad Ali Jatoi, Secretary Sindh
Cooperative Housing Society, Sukkur as well as entire present and
previous Management of Sindh Cooperative Housing Society whose names are
transpired in the Inquiry conducted by NAB authorities, Sukkur as well as proposed
reference to be filed at Accountability Court Sukkur therefore, the delinquent
persons nominated in the Reference shall not hold any position in any Society.
The Deputy Commissioner, Sukkur is directed to take-over possession/charge of Sindh
Co-operative Housing Society, Sukkur immediately. He is also directed to
collect all files of the Society in his captivity till the newly body of the
Society is elected. The Assistant Director/I.O. NAB, Sukkur (Asher Abbasi) is also directed to probe
into the matter regarding amenity plots of each Society falling in Sukkur
including Mehran Society situated at Imdad Ali Awan Road, Sukkur and submit
such detailed report before this Court within 15 days’ positively. The report
must show the erection of boundary walls as well as constructed bungalows on the
Amenity/Reserved plots of each Society of Sukkur.
Office to place these matters in Court
after receiving the compliance reports.
J U D G E
J U D G E
Ihsan