' AMIR HANI MUSLIM, J.--- Through this Constitution petition the petitioner has prayed for following relief:-- "(i) It be declared that the respondent's wilful disobedience and evasion of the judgment/order, dated 1-10-1985 passed in Appeal No,ATLC-8 of 1985 by the Honourable Appellate Tribunal Local Councils, Sindh, Karachi, is mala fide, ultra vires, illegal and not in due discharge of his duty.
(ii) The respondent be directed to immediately implement/execute for the service and safety of the public. The abovesaid judgment/order dated, 1-10-1985 of the Honourable Appellate Tribunal Local Councils, Sindh, Karachi, in Appeal No,ATLC-8 of 1985 and not act in contravention of the same.
(iii) Any other relief/order deemed just and proper under the circumstances of the case, in addition to the costs of the petition, may also be granted to the petitioner."
2. The facts as pleaded in the petition are that the petitioner is one of the citizens, permanent resident of Hyderabad, a tax-payer and the President of a Welfare Society, namely Pakka Peer Colony Welfare Society had made different representations in regard to removal of encroachment alleged to have been made on the road, in particular, on Qadam Shah Chari, Nusrat Bazar, Hyderabad along the fort wall. It has been pleaded by the petitioner that instead of removing the encroachment the respondent had decided to sell out those portions of the road to the encroachers who were in possession of the area overlooking the interest of general public whereby the actual width of road was reduced from 65 feet to 30 feet.
3. It appears from the pleadings that prior to the selling out of portions encroached upon, the respondent has invited objections. The petitioner in response thereto had filed his objections in writing. Petitioner claims that his objections were neither considered nor was he heard and same were rejected by the respondent, copy of which was never supplied to him in spite of his repeated requests. On 23-10-1982 the respondent passed Resolution No,670 and has received that payment of the cost of the road land. It further appears from the pleadings that the petitioner preferred Appeal No,ATLC 8 of 1985 against the order of rejection of the respondent under rule 4(1)(a)of the Sindh Councils (Appeal) Rules, 1985, framed under section 103 read with sections 31 and 108 of the Sindh. Local Government Ordinance, 1979 before the Chairman/Judge, Appellate Tribunal, Local Council, Sindh, Karachi. The appeal was heard after notice to the respondent and by order, dated 1- 10-1985, the appeal of the petitioner was allowed holding therein that the proposed sale of portions of the road known as Qadam Shah Chari running alongwith the fort wall was void. The respondent was directed to drop the proposal forthwith holding further, that such proposal was against the interest of the general public and was violative of the trust deposed in the respondent. The decision of the Appellate Tribunal was not honoured by the respondent and therefore, the present petition was filed.
4. During the pendency of this petition, the petitioner died and his L.Rs, were brought on record.
5. From the record it further reveals that on 20-4-1992 the respondent pursuant to the direction of this Court had appeared in person and admitted that the order, dated 1-10-1985 of the Appellate Tribunal has not been implemented inter alia, on the ground that orders were without jurisdiction.
Upon this, this Court has directed the respondent to prefer a petition. On 3-5-1992 the respondent filed C.P. No,D-66 of 1992 impugning the orders, dated 1-10-1985 of the Appellate Tribunal. Both these petitions were ordered to be heard together. The cases were fixed before this Bench on 24-9- 2003 on which date the counsel for the respondent requested for hearing of the Petition No,66 of 1992 first as the counsel for the petitioner in C.P. No,D-36 of 1992 was not present and petitions pertained to the year 1992. This Bench after hearing the counsel in C.P. No,D-66 of 1992 dismissed the petition of the respondent, inter alia, on the ground that the issues raised in the Petition No,66 of 1992 were covered by the Constitution Petition No,36 of 1992 therefore, the petition of respondent was dismissed. Even otherwise, the Constitution Petition No,D-66 of 1992 of the respondent was not maintainable on additional grounds that the same as filed against a private person. However, since the petition was dismissed on the first ground the counsel for the parties were not called upon to address the issue of maintainability of a petition against a private person.
6. In the present proceedings, counter-affidavit and affidavit-inrejoinder have been filed by the parties. It has been contended by the learned counsel for the petitioner that the petitioner has not challenged the Resolution No,670 of the respondent passed on 23-10-1982. He submitted that the petitioner has preferred appeal before the Appellate Tribunal under rule 4(1)(a) of the Sindh Councils (Appeal) Rules, 1982, against the order of the respondent rejecting the objections preferred by the petitioner in response to the public notice. It is submitted by the learned counsel for the petitioner that in spite of his all sincere efforts he was not provided the copy of the order passed by the Mayor rejecting the objections of the petitioner. It is further submitted by the learned counsel that in the intervening period a Resolution was passed by the respondent whereby the encroachers were allowed to purchase the portion of roads in their unauthorized possession.
According to the learned counsel, the respondent, in law, had no authority to pass such a Resolution as it has reduced the width of the road from 65 feet to 30 feet besides depriving the civic amenity to -the citizens. He further submitted that pursuant to the Resolution part payment has been received by the respondent towards the sale of the portions of the road.
7. Mr. Naimatullah Soomro, the learned counsel for the respondent, has argued that the petition is not maintainable as the petitioner has challenged the Resolution passed by the respondent and the Appellate Tribunal cannot give any finding in exercise of the powers conferred upon it under rule 4 of the Sindh Councils (Appeals) Rules, 1982. He further submitted that under section 53 of the Sindh Local Government Ordinance, 1979, which was applicable at the relevant time, any Resolution of proceedings of the respondent could only have been challenged before the Government which is the controlling authority of the respondent and, in the present proceedings, according to the learned counsel for the respondents the petitioner has challenged the Resolution before the Appellate Tribunal, therefore. The very appeal by the petitioner was not maintainable for want of jurisdiction. He submitted that it is the Government under the provisions of section 54 of the Sindh Local Government Ordinance, 1979, which had the jurisdiction to issue direction to the respondent and the Appellate Tribunal constituted under the provisions of Sindh Councils (Appeal) Rules, 1982, had no jurisdiction to set at naught any Resolution of the respondent.
8. The next argument of the learned counsel for the respondent was that the petitioner during the pendency of the petition has died, therefore, the petition stands abated. He, however, admits that the L.Rs, of the petitioner, who are the residents of Hyderabad, have been brought on record. It was also urged by the learned counsel for the respondent that even the petitioner himself did not have the locus standi to file the present proceedings.
9. It was further argued by Mr. Naimatullah Soomro that plain reading of the prayer clause in the petition reflects that the petition is misconceived as none of the relief sought in the petition could be granted to the petitioner.
10. The learned Additional Advocate-General, Sindh has supported the petition and had urged that the order passed in appeal by the Tribunal was a well-reasoned order and was passed in exercise of the Rules conferring jurisdiction upon the Tribunal.
11. We have heard the learned counsel and have perused the record.
' In para.5 of the counter-affidavit of the respondent, it is admitted that objections of the petitioner were rejected by the respondent. In fact, the issue before the Appellate Tribunal raised by the petitioner was that the rejection of the objections and not the Resolution itself. This fact is apparent from the reading of the judgment of the Tribunal where it was argued by the respondent's counsel that the appeal was premature and the respondent has not taken any final decision. During proceedings before us. On instructions from the Land Supervisor, who was present in Court alongwith the record, the learned counsel for the respondent had admitted that the proposed decision of the respondent to sell out the portion of the road to the encroachers was not reported to the Government under section 51(8) of the Sindh Local Government Ordinance.
1979.
12. In regard to the argument of the learned counsel for the respondent that the petitioner and or his L.Rs, have no locus standi to challenge the decision of the respondent before the Appellate Tribunal and or before this Court, it is suffice to say that even a stranger has the log standi to challenge deprivation of civic amenities. In these proceedings the width of the road has been reduced from 65 feet to 30 feet which would have definite effect on the flow of traffic. In this regard, the issue is fully covered by the judgment of the Honourable Supreme Court in the case of Fazal Din v. Lahore Improvement Trust, reported in PLD 1969 SC 223 wherein their Lordships have held that even a stranger can file the proceedings of the nature.
13. The argument of the learned counsel for the respondent that the relief sought in the petition could not be granted. This argument is also without force. A defect in the form of prayer in the petition could not restrain the Courts to mould the relief according to the circumstances of the case. The Courts in exercise of their Constitutional jurisdiction can mould and or alter the relief according to the circumstances, if the justice of cause requires though such 'relief has not been prayed for. In this regard their Lordship in the Supreme Court in the case of Abul A'ala Maudoodi v.
Government of West Pakistan reported in PLD 1964 SC 673, have held that the Court in exercise of their Constitutional jurisdiction can even grant relief not asked for in the given circumstances.
14. The learned counsel for the respondent has also argued that under section 76(f) of the Sindh Local Government Ordinance, 1979, all public streets including roads could be disposed of by the respondent. The argument is misconceived as public streets and roads are meant to provide the general public civic amenities. The policies of Government are normally framed keeping in view the comfort of the general public and reduction of the width of road of Hyderabad, which town now has been developed as one of the largest cities of Pakistan, could not be in the interest of the inhabitants as on account of such reduction the public interest would suffer on account of ever increasing flow of traffic in future. In this respect the Appellate Tribunal has also taken note of the flow of traffic which was being hampered on account of such a decision. Even otherwise the area would become unclean, unpleasant as this is located alongwith the great historical monurments "fort" which attract the tourists.
15. The very proposed action of the respondent is violative of the fundamental rights guaranteed by the Constitution. Under Article 9 of the Constitution, which guarantees life, and liberty of a citizen according to law, could not be construed in a restricted and pedantic manner. The word 'life' used in Article 9 of the Constitution has a large concept, which includes right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights. The Constitution is organic in nature and is also alive to the unfolding of the future. We are fortified by the judgment of the Honourable Supreme Court in the case of Employees of Pak. Law Commission v. Ministry of Works resorted in 1994 SCM R 1548.
16. The properties shown under section 76(b) of the Sindh Local Government Ordinance, 1979, could not be sold or leased out by any Municipal Authority against the public interest as these properties are primarily reserved for the public benefit to provide them civil amenities. Any commercial activity cannot be given preference over public interest and in the present proceedings this aspect has been completely overlooked while taking decision by the respondent. The respondent may adopt any policy to shift the encroachers and may rehabilitate them to some other parts of the city but at the same time, allowing such encroachers to purchase, the encroached portions of the road against the public interest is violative of the trust and confidence deposed by the inhabitants in the respondent.
17. On perusal of the judgment of the Appellate Tribunal, which is well-worded, we have noticed that the learned Tribunal has taken pains to examine the reports of City Survey Officer, Hyderabad, Superintendent of Police, Hyderabad and Director Archaeology, Hyderabad, in order to give its findings.
18. For the aforesaid reasons, we have allowed this Constitution petition by our short order passed on 2-10-2003 holding that the proposed decision of the respondent, which was given effect by the Resolution No,670, dated 23-10-1982 was against the public interest and therefore, could not be given effect.