IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Constt: Petition No.D–518 of 2020
Constt: Petition No.D–1013 of 2019
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.
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.
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