IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No.D-2008 of 2006

Date of Hearing	:	24^th February 2012 and 14^th June 2012
Petitioner	:	Abdul Ghafoor Khan through Mr. Raja Qasit Nawaz Khan.
Respondent No.1	:	The Federation of Pakistan through the Secretary Ministry of Defence, Rawalpindi through Mr. Irshad Ahmed Kehar DAG
Respondent No.2	:	The Base Commander, PAF Faisal Base, Shahrah-e-Faisal, Karachi through Mr. Muhammad Asif Malik Advocate
Respondents No.4 and 5	:	The City Nazim, C.D.G.K. and The City District Government Karachi through M/s. Manzoor Ahmed and Azra Muqeem Advocates .
Respondent No.6		Sarwar Hafeez Khan through Mr. Muhammad Aqil Advocate
Respondent No.7		Azizullah Khan through Syed Amjad Hussain Advocate

JUDGMENT

SAJJAD ALI SHAH, J : All Respondent say that in case the main petition is decided, all applications would become infructuous or would serve their purpose. Consequently, this petition has been taken up for final hearing at Katcha Peshi.

The Petitioner seeks the removal of structure in the shape of shops raised by private Respondents beneath the Baloch Colony Flyover and on the land situated between Baloch Colony Flyover and the road leading towards Railway Line and further directions to the City District Government Karachi to recover the land illegally encroached by the private Respondents No.6 and 7 through Respondent No.2 i.e. The Base Commander, PAF Faisal Base, Shahrah-e-Faisal, Karachi.

The controversy admittedly appears to be that the Ministry of Defence accorded sanction to transfer military land admeasuring 1131 square yards out of Survey No.5, Drigh Road, Cant in favour of erstwhile Karachi Development Authority for the construction of Flyover bridge on Shaheed-e-Millat Road, Karachi in lieu of land admeasuring 1200 square yards situated on Stadium Road adjacent to K.D.A. Pipe Factory. The flyover bridge admittedly has been constructed and the Officer Commanding PAF Base Faisal on the ground that erstwhile K.D.A. has not granted compensation or alternate plot as promised, is asserting his right on the land beneath flyover bridge on Shaheed-e-Millat Road (hereinafter referred to as “flyover bridge”). The said Respondent has further granted NOC to the respondent No.6 for establishing automobile workshop and to respondent No.7, who has established plants nursery. Likewise the other respondents have occupied the pieces of land beneath the bridge even a police chowki is also being constructed by CCPO Karachi / TPO Jamshed Town.

Raja Qasit Nawaz Khan, learned counsel appearing on behalf of the petitioner, contends that though a portion of land admeasuring 1120 square yards originally owned by the Ministry of Defence after its acquisition by erstwhile K.D.A. against grant of alternate plot has been utilized in construction of flyover bridge, therefore, Base Commander has no right whatsoever to assert its ownership on the land beneath flyover bridge and to enter into Lease / License Agreement with private respondents for commercial purposes. Per counsel, even the commercial activity beneath flyover bridge is not only hazardous but extremely dangerous despite respondent No.2 by using illegal force has taken control of the said land and has handed over its possession to the respondent No.6 and 7. Counsel has pointed out various letters addressed by the petitioner to the C.D.G.K. to remove such illegal encroachment, but no action has been taken.

On the other hand, M/s. Manzoor Ahmed and Azra Moqeem, learned counsel appearing on behalf of the C.D.G.K., submits that the construction of flyover bridge connecting Shahrah-e-Faisal to Korangi Township was planned in mid sixties and ultimately after redesigning the bridge and upon execution of the plan it transpired that approximately 1200 square yards of Military land beneath the flyover bridge was required and, therefore, the said piece of land was obtained from the Ministry of Defence through negotiation by providing them alternate plots of 1200 square yards at Stadium Road adjacent to K.D.A. Pipe Factory. The said alternate plot was handed over to the Ministry of Defence where a petrol pump of Total Company has been established. Per counsel, the flyover bridge and road is behind the Cantonment limits of Shahrah-e-Faisal but the PAF authorities by interfering into the jurisdiction of C.D.G.K. are granting temporary permission to various persons to utilize the land beneath the flyover bridge for commercial purposes which is totally unjustified and illegal. It is contended that the encroachment beneath flyover bridge through Base Commander PAF Shahrah-e-Faisal is illegal, unjustified and is liable to be removed. It was further asserted that all the illegal constructions beneath the flyover bridge would be removed by the C.D.G.K. if directed by this Court.

Learned DAG on behalf of the respondent No.1 and the learned counsel for respondent No.2 has questioned the maintainability of this petition on the ground that it contains disputed questions of facts as well as the locus standi of the Petitioner to file this petition, by placing reliance on the judgments of the Supreme Court in the case of Asadullah Mangi and others Vs. Pakistan International Airlines Corporation (2005 SCMR 445), Faiz Bakhsh and others Vs. Deputy Commissionelr / Land Acquisition Officer Bahawalpur and others (2006 SCMR 219), Shehri: Citizen for a Better Environment and others Vs. Government of Pakistan and others (2009 YLR 1137) and Dr. Insaf Ahmed Vs. Medical Superintendent C.M.C. Hospital, Larkana (2001 YLR 1088) and Habib-ur-Rehman Unar and others Vs. Government of Sindh and others (PLD 2004 Karachi 728). On merits it is contend that the said small portion of land beneath the flyover bridge was / is owned by the Ministry of Defence as erstwhile K.D.A. has neither paid compensation nor has provided alternate plot of 1200 square yards as was promised. Per counsel the Ministry of Defence further reserves its rights to claim compensation / price of land utilized under flyover bridge from the C.D.G.K. They have further pointed out to the Minutes of the Meeting taken place between the Base Commander PAF Base Faisal and the Chief Engineer (WBP) K.D.A. held in the office of Base Commander on 16.11.1991 wherein it was agreed that the portion of road which would be available beneath the flyover bridge after its construction could be utilized by PAF by constructing shops, storage, etc. and, therefore, the construction beneath the flyover is well within the rights of Respondents No.1 and 2 and therefore, the petition is liable to be dismissed. In the end counsel for the Respondent No.2 says that in case the right of the Respondent No.2 to claim compensation from C.D.G.K. is extended they will have no objection for giving up their claim on the subject land.

Mr. Muhammad Aqil, learned counsel appearing for the respondent No.6 has argued that respondent No.6 is occupying 700 square yards of land beneath the flyover bridge under an Agreement with PAF Base Faisal and has established automobile workshop, whereas Syed Amjad Hussain, learned counsel for Respondent No.7, has pleaded that said respondent is occupying land adjacent to flyover across the railway line which is owned by C.D.G.K. but the respondent No.2 was receiving certain amounts for its use and now they are forcefully removing the said respondent. However, counsel admits that the respondent No.7 was neither permitted by C.D.G.K. to occupy such land under any lease or license nor he has ever paid any amount to C.D.G.K.

Mr. Shafi Memon, learned AAG, has no explanation whatsoever to offer as to why the police authorities have trespassed the land beneath the flyover bridge and have constructed police chowki.

We have heard the learned counsel for the respective parties and have perused the record of this case.

Perusal of the parawise comments filed on behalf of the Military Estates Office leaves no doubt in our mind that the land beneath Shaheed-e-Millat Flyover Bridge was acquired by erstwhile K.D.A. in exchange and for this very reason Military Estates Officer has prayed that C.D.G.K. be directed to make payment of defence land utilized in the construction of Shaheed-e-Millat Flyover Bridge. Beside there is undeniable documentary evidence on record to show such acquisition. To begin with, DG, K.D.A. vide his letter No. M(SDP)/93/652, dated 25.11.1993 had informed the D.G. Military Lands and Cantonments regarding non-cooperative attitude of PAF authorities in respect of handing over 1131 sq. yds. land required for construction of turning loop and side lanes. The relevant portion of the said letter is reproduced herewith:-

“As you might be aware, Shaheed-e-Millat Road Fly-over is in advance stage of construction. However, the pace of progress has been hampered due to non-handing over of PAF land measuring 1131 sq. yds [56+1075] required for the construction of turning loop and side lanes. The PAF authorities have already agreed to hand over the said land vide letter No.Air HQ/5452/565/Wks-III dated 29^th August, 1993 (Annexure ‘A’), in lieu of a piece of land measuring 1200 sq. yds. adjacent to K.D.A. Prestressed Pipe Factory on Stadium Road.”

The above said letter of the DG, K.D.A. was responded by the Military Estates Officer, Karachi Circle, Karachi, which we would like to reproduce herein:-

“Reference your letter No.M(SDR)/93/652, dated 25-11-1993.

2. It is intimated that the Government of Pakistan, Ministry of Defence has accorded sanction to the transfer of Defence land measuring 1131 sq. yards out of Survey No.5, Drigh Road Cantt. to the K.D.A. for the construction of fly-over bridge on Shaheed-e-Millat Road in lieu of land measuring 1200 sq. yards to be transferred by the K.D.A. to the Military of Defence, Government of Pakistan on Stadium Road adjacent to K.D.A. Pipe Factory.

3. In view of the above you are requested to detail your representative to complete the handing/taking over formalities of land in question. Exchange deed will also be executed between the K.D.A. and Military Estates Officer, Karachi in respect of land in question.

4. It is further requested that the boundary wall which will be set back due to the transfer of Defence land may also be re-constructed properly.”

The said letter also bear the endorsements and signatures regarding handing over and taking over the respective land.

Perusal of the correspondence, relevant portions whereof have already been reproduced above clearly reflect that the Ministry of Defence has given up its right on the specified portion of land and for this very reason necessary changes in the outer boundary wall of P.A.F. Base Faisal as requested by the M.E.O. were made by erstwhile K.D.A. in order to exclude that specified portion for public use. Notification dated 27.6.1967 reflecting the limits of Drig Road Cantonment in order to exclude this area is also on record. Even the respondents are fully conscious of the fact that they have no right on the disputed land and further that their right for an alternate plot if any has become bared by time and for this very they have not asserted any claim on the subject land instead have suggested that if limitation for claiming alternate plot is extended they will give up their possession on the disputed land.

As to the claim of respondent No.2 by placing reliance on the minutes of meeting between Base Commander, P.A.F. Base Faisal and Chief Engineer (WBP), K.D.A. held in the office of Base Commander on 16^th November, 1991 whereby it was agreed to allow Base Commander to utilize portion of roads available under the flyover bridge for making shops or storage, suffice it to observe that such minutes have no value at-all after the Ministry of Defence has given up its right on the subject land nor the Chief Engineer K.D.A. was authorized/ empowered to enter into such arrangement. Even otherwise, the land in question was acquired and has been utilized for public purposes i.e. construction of flyover bridge and now is a part of public road and therefore could not have been utilized for any commercial activity by either of the parties.

The purpose of constructing flyover bridges in the cities is to release traffic congestion and inconvenience to commuters nearby and in case commercial activity is allowed beneath flyover bridges it would negate the very purpose of such construction as commercial activity beneath flyover bridges adds to traffic congestions and inconvenience to the nearby commuters. We would also like to observe that flyover bridges specially in the city of Karachi due to the negligence of the concerned authorities either are encroached for commercial activity or with their tacit approval such activities are allowed. Mostly the political, religious and linguistic parties have occupied the basement of flyovers such as Quidabad Railway Line Bridge, Quidabad National Highway Bridge, Sir Syed University Bridge, Nagin Chowrangi Flyover, Liaquatabad Flyover and Banaras Chowrangi Flyover Gizri Flyover etc., whereas in the other part of the world to prevent encroachments and unauthorized constructions, the authorities plan to develop spaces underneath the flyovers and railway over-bridges in the city for public recreation. Only in India upon realizing that unauthorized constructions and encroachments lead to traffic congestion and inconvenience for commuters near flyovers, PWD identified ten flyover bridges to Lucknow Development Authority, to develop parks, crossings, shelters and toilets in the designated areas and to further illuminate such places after proper seating arrangements, however, with a rider that neither any permanent construction would be raised nor any commercial activity would be carried out therein. (Express News Service online Monday March 23, 2009). Even in Rawalpindi the space beneath flyover Committee Chowk has been utilized as green area with flowers all over providing shade and sitting area to the general public.

As to the objection raised on behalf of the Respondent No.2 that the petition contains disputed question of fact, we wonder how after filing written statement clearly admitting the handing over of the disputed portion of land to the erstwhile K.D.A. on which flyover bridge has been constructed, such plea even could be raised on behalf of the Respondent. There may be a dispute as to whether compensation has been paid or not which is not subject matter before us and even otherwise the forum provided for agitating such dispute has not been utilized for more than three decades. The plea, therefore, needs no consideration.

As to the plea of locus standi or that the petitioner is not an aggrieved person, suffice is to observe that the Hon’ble Supreme Court of Pakistan in case of Ardeshir Cowasjee, Karachi Vs Messrs Multiline Association, Karachi (PLD 1993 Karachi 237) has held that deprivation of any amenity confers a right on the residents of the locality to maintain a Constitutional petition. Further that the construction is in the centre of the road beneath flyover which of-course is for public utilization and any person whose interest is prejudicially affected in terms of the cited judgment of the Hon’ble Supreme Court is entitled to maintain a writ.

In the circumstances, we while allowing this petition direct the respondents to remove all constructions beneath Baloch Colony Flyover Bridge and the land situated between Baloch Colony Flyover Bridge and the road leading towards railway line and further direct respondents No.4 and 5 to ensure removal of all encroachments beneath flyover bridges in the city of Karachi and also consider to plan and develop spaces underneath flyover bridges for public parks as has been done in Rawalpindi Beneath Committee Chowk Flyover or for other public recreation purposes, but no commercial activity whatsoever should be carried out therein nor any permanent construction should be raised. Compliance report be filed within thirty-days.

JUDGE

Karachi,

3^rd day of July 2012.

*FarhanPS/AmjadPA*