ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-1029 of 2021

C.P. No.D-1093 of 2021

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

DIRECTION:

1. For order on CMA No.7674/2023 (Urgent).

2. For order on CMA No.7675/2023 (u/s.12(2) CPC).

3. For order on CMA No.7676/2023 (Stay).

4. For order on MIT-II Report dated 15.03.2023.

-----------

Dated; 24^th March 2023

Mr. Salahuddin Buriro, Advocate for Applicant/Intervenor.

Mr. Abdul Jalil Zubedi, Asst. A.G. Sindh alongwith DSP Noor Muhammad Wasan and SO Asif Butt.

-*-*-*-*-*-

1. Urgency granted.

2&3. In the above disposed of petitions, an application under Section 12(2) CPC has been filed by the President of Burns Road Food Street Tajir Association, wherein, it has been alleged that while concealing the facts and through misrepresentation of facts and fraud played upon the Court, petitioner has obtained order dated 22.02.2023 passed in the aforesaid petition, whereas, the applicant was not heard in above petitions and official respondents pursuant to such order have discontinued the lawful business activity from Burns Road (Shahrah-e-Liaquat).

Above petitions were disposed of vide order dated 22.02.2023 in the following terms: -

“4. From perusal of the aforesaid Notifications, it transpired that there is no Notification / Order of competent authority, whereby the Burns Road (Shahrah-e-Liaquat) have been declared as Food Street, on the contrary, above Notifications only suggests a traffic plan for the use of alternate routes for the purposes of transportation.

5. It is regretted to observe that without any lawful authority, and in the absence of any order / decision or Notification issued by Competent Authority, no mere issuance of Notification by the Assistant Commissioner Arambagh, District South, Karachi, followed by another Notification of the Deputy Commissioner (South), Karachi, two main roads of Burns Road and (Shahrah-e-Liaquat) alongwith six adjoining streets, have been closed for all type of traffic on permanent basis after 7:00 P.M. onwards, and Restaurant / shops have been allowed to place their stalls, tables and chairs on the main roads, where food is served, which not only creates serious public nuisance to the residents of the area, but also restricted the free movement of traffic on such public roads, without any lawful authority in the garb of Pedestrianizing in the Burns Road Food Street, which amounts to change of land use on the one hand and to convert the Public Road to commercial Food Street without seeking amendment or approval in the Master / Layout Plan of the Area, which otherwise is not permissible in law.

6. While confronted with hereinabove factual and legal position, learned AAG and the Deputy Commissioner (South), Karachi present in Court could not justify the declaration of Burns Road (Shahrah-e-Liaquat) as Food Street or its closure pursuant to aforesaid Notifications and candidly submitted that above Notifications only relate to traffic plan suggesting alternate routes, and there is no Notification / Order or decision by competent authority declaring the above main roads of Burns Road (Shahrah-e-Liaquat) as Food Street.

7. Accordingly, both the petitions are allowed and the two Notifications referred to hereinabove are declared to be illegal and issued without lawful authority, consequently, respondents are directed to ensure that within three (03) days from the date of this order, there shall be no closure of roads i.e. Burns Road (Shahrah-e-Liaquat) the six streets as mentioned in these Notifications, and whereas, all stalls, tables and chairs placed on such roads shall be removed, and such roads shall be restored to original position, and shall be clear for public transportation / passage. Compliance report shall be submitted to this Court within seven (07) days’ time through MIT-II of this Court.

Both petitions are allowed in the above terms.”

While confronted to point out any misrepresentation or fraud, if any, by the petitioner upon the Court while obtaining the aforesaid order passed by this Court, wherein, the Notification issued by the Assistant Commissioner, Sub-Division Arambagh, District South Karachi on 29.12.2020 followed by another Notification dated 05.01.2021 issued by Deputy Commissioner, District South, Karachi, having the effect of closure of main Burns Road alongwith six (6) adjoining roads from 07:00 P.M. to 12:00 A.M. for all types of traffic were declared to be illegal on account of lack of authority, learned counsel for the applicant could not refer to any such misrepresentation or fraud, however, submits that since number of employees of the applicant and other owners of food business on the said food streets are affected, as official respondents are creating hindrance in this regard, therefore, instant application has been filed.

In view of above facts and the legal position as emerged in these petitions, listed application(s) are totally misconceived and baseless and liable to be dismissed with cost as none of the ingredients of section 12(2) CPC are attracted in the instant case. However, learned counsel for the applicant submits that he will not press instant applications, and will file appropriate proceedings for seeking redressal of their grievance against misuse of authority by official respondents, who are creating hindrance in their lawful business as well, in accordance with law. Accordingly, listed applications are dismissed as not pressed. The applicant may, however, be at liberty to file appropriate proceedings before the relevant forum for redressal of their grievance, if any, in accordance with law, however, it is clarified that any action taken by the official respondents pursuant to Court’s order shall not be the subject matter of such proceedings.

Learned A.A.G. present in Court has filed fresh compliance report of the DSP Traffic, Sub-Division Preedy, Saddar, Karachi alongwith annexures and submits that the order passed by this Court on 22.02.2023 has been complied with in letter and spirit and has also referred to other compliance reports submitted through MIT of this Court, which reflects that all the encroachments/hurdles from the Burns Road (Shahrah-e-Liaqut) have been removed and the said roads have been restored to original position and being used for all types of transport as per law. He further submits that as per his instructions, the order passed in the aforesaid petition is not being misused by the official respondents. Be that as it may, compliance report filed today alongwith earlier reports by the DIG Traffic Karachi and Deputy Commissioner South Karachi who has issued a Notification No.DC/South/JB/TMB/2023-11, dated 23.02.2023, whereby, the impugned Notification dated 05.01.2021 has been withdrawn pursuant to Court’s order, are taken on record.

J U D G E

*Farhan/PS*