1. ' The petitioner Sajjadullah Qureshi has filed C.P. No,D-288 of 2005 against the official respondents and Sadaruddin with the following prayers:--
(a) To direct the official respondents Nos.1 to 4 to ensure that the construction of petrol pump in progress by the respondent No,5 is raised strictly in accordance with the approved Building Plan by the respondent No,2, and if any of the portion, which is not in accordance with the approved Building Plan be removed/demolished.
(b) To direct the official respondents Nos.1 to 4 to ensure that the respondent No,5 is raising construction of petrol pump in accordance with law of the land on his own area of 271 sq. Yards (i.e, 2434.00 sq. Fts.) of C.S, No,C-581/18 Ward "C" as per data mentioned in the Annexure "B" Extract from Property registered N.I.C. Card of the respondent No,5 appended with this petition, and if any excess area is encroached that is liable to be recovered/resumed by the respondent No,2.
(c) To direct the official respondents Nos.1 to 4 to remove the encroachment made by the respondent No,5 on the common street 15 feet wide running in between the plots of the petitioner and the plot of respondent No,5 and connecting the main Minara Road Sukkur at one hand and lanes of the Survey No,581/3 and 581/10 as per site sketch drawn by the Assistant Director Town Planning Department Sukkur Division of the respondent No,2 and appended as Annexure "F" with this petition and shown in yellow colour (colouring is done by the counsel for the petitioner in order to specify the extract location of the common street in dispute.
(d) To award the cost of this petition.
(e) To grant any other relief, which this Honourable Court may deem fit and proper under the circumstances of the case."
2. ' The facts as they appear from the pleadings of the parties are that the petitioner Sajjadullah Qureshi claims to be owner of three different plots on the strength of registered sale-deed located at Minara Road opposite U.B.L. Zonal Office, Sukkur. The petitioner further claims that he sought approval of building plans from the respondent No,2 for raising construction on them.
3. ' According to the petitioner adjacent to his plots the respondent No,5 has a plot bearing City Survey No,C-581/18, measuring 271 sq. Yds. (2439) sq. Feet. It has been further pleaded by the petitioner that there is a 15 feet wide common street running in between the plot of the petitioner and the plot of the respondent No,5. The petitioner claims that the said common street has been encroached upon by the respondent No,5 by raising construction on it. The respondent No,5 has started constructing a petrol pump over Plot No,581/18 for which plan was approved by the respondent No,2 but the respondent No,5 in violation of the approved plan is raising construction beyond the area of Plot No,581/18 and has constructed upon the street which is on the northern side of the petitioners plot by encroaching 5 feet, '9 inches of one end of the street and 12 feet, 9 inches on the other hand of the street.
4. ' The petitioner has prayed that the respondent No,5 be restrained from raising construction of the petrol pump beyond the plot line of his plot C.S. No,581/18 with further prayer to, restrict the respondent No,5 from encroaching upon the other street which is started on the western side of the petitioners Plot C.S. No,C-581/18.
5. ' Notices were issued to the respondents including the respondent No,5. The official respondents have filed their comments. The Mukhtiarkar and City Surveyor Sukkur in his comments have pleaded that as per City Survey Record Plot No,C-581/18 is owned by respondent No,5. In the comments of the Mukhtiarkar, it was stated that the City Survey Record shows that common public street of 15 feet wide is available in between City Survey No,C-581/18 and the plots of the petitioner.
6. The Municipal Town Officer of Sukkur Municipal Committee appeared in person and has conceded that the construction of the respondent No,5 is being carried out by encroaching upon the streets on northern as well as on the western side of the plot. The respondent No,5 has. Filed counter- affidavit in which he has claimed that he is raising construction on C.S. No,C-581/18 and Plot C.S. No,581/35. The respondent No,5 has further pleaded that he has filed Petition No,D-151/2005 in this Court in which he has sought the. Following reliefs:-- "(a) To declare that the act/action of the respondent No,1 by issuing verbal direction or he intends to issue direction in writing in respect of removing Patrol Tank of Capri Gass Station Minara Road Sukkur fixed in plot measuring 649 sq. Ft (MOS) of C.S No,581/18 .Minara Road Sukkur to be illegal, based on mala fide intention and ulterior motive.
(b) To restrain the respondent No,1 not to pass any adverse order against the petrol pump of the petitioner and also restraining all the respondents not remove the Petrol Tank of Capri Gas Station Minara Road Sukkur fixed in area measuring 649 sq. Ft. In front of C.S. No,581/18 Minara Road Sukkur either by themselves or through their servant, agents and subordinates in any manner whatsoever till the final disposal of the petition.
(c) To award cost of this petition to the petitioner.
(d) To grant any other relief which may be deemed fit and proper under the circumstances of this case."
7. ' The respondent No,5 has submitted that since the matter is pending adjudication in this Court therefore, the construction raised by him was justified. Under these circumstances to avoid conflicting judgment, we have ordered that C.P. No,D-151/2005 filed by the respondent No,5 be fixed along with C.P. No,288 of 2005 and would be heard together with C.P. No,288/2005.
8. ' In order to ascertain the facutm of encroachment, on 14-9-2005 we appointed the Additional Registrar of this Court as Commissioner to inspect the sight and measure as to whether the construction raised by the respondent No,5 was within the plot line of the Plot No,C.S-581/18. We further directed the Additional Registrar of this Court that the inspection of the plot shall be carried out in presence of the City Surveyor/Mukhtiarkar. The Addl. Registrar had inspected the site and submitted his report which is reproduced as under:- "That, I with the assistance of the City Surveyor Sukkur, Mr. Arif Mehmood Draftsman and Mr. Barkat Ali Sub-Engineer of Municipal Corporation Sukkur, in presence of the petitioner and Mr. Adeel Shaikh representative of the respondent No,5., carried out measurement of Survey No,581/18 situated on Minara Road Sukkur. I found the area of the S.No, as 2439 Sq. Ft. Which is according to the City Survey Record. The Survey No, is shown in slue colour in the map.
9. ' That according to the City Survey Record there is street on northern side of the C.S. No,581/18 shown in the City Survey Record. The Street according to the measurement is 16-0 ft. Wide. I with the assistance of the City Surveyor Sukkur found that the respondent No,5 has encroached upon an area of 555 sq. Ft. This encroachment is shown in Red Colour in the map.
10. ' That, I also measured street which falls on the western side of the City Survey No,581/35 which is shown in the City Survey Record in the name of respondent No,5 and found that the respondent No,5 has also encroached upon an area of 1-1/2 ft. In width and 48 ft. In length. The said street runs from southern side to northern side this encroachment also shown in Red Colour adjacent to the green colour (which is the plot of the respondent No,5).
11. ' From the site visit and sketch your Lordships will find that the respondent No,5 has encroached upon streets falling on northern side of Plot No,581/18 and western side of Plot No,581/35.
12. ' The report is submitted accordingly."
13. ' From the perusal of the above report which was supported by a map, it revealed that the respondent No,5 was the owner of Plot No,C.S. 581/18 the area of which is 270 sq.Yds and on its northern side there is a street of 15 ft. Which has been encroached by respondent No,5 by raising construction in such manner that one end of his plot he has encroached an area of 5'.9" of the street whereas the other end of the street, he has encroached upon 12'. 9" of the street.
14. ' The report supported by the map further reflected that there is another street on the western side of the plot of respondent No,5. As per the record of the City Surveyor the actual width of this street was 20 feet. The respondent No,5 encroached upon 360 sq.Ft. Of this street in connivance with the help of the Municipal Corporation Sukkur respondent No,2 and got the portion of this street by way of lease by allotting it as Plot C.S. No,381/35. The area of this newly-created survey number by the respondent was as 48' x 7'.6" = Total 360 sq.Ft (40) sq.Yard) we have called the City Surveyor who appeared before us and informed as that in the original record of the City Survey, there is no plot by the number C.S. No,381/35. In fact the width of the street on the western side of the respondent's plot was 20 feet on both ends. The Municipal Corporation respondent No,2 has unauhtorizedly leased portion of the street measuring 360 sq.Ft to the respondent No,5, and had numbered it as C.S. No,381/35. Copy of such map was also placed before us by the City Surveyor.
15. ' The report of the Additional Registrar supports this fact and shows that the respondent No,5 after encroaching portion of street under the garb of C.S.No,381/35 has further encroached 1-1/2 feet of the street on the western side reducing the width of the street from 20 feet to 11 feet.
16. ' As observed hereinabove that the record of the City Survey does not mention any plot with the number of C.S.No,581/35 in Sukkur. The Municipal Corporation respondent No,2 unauthorizedly has leased out the portion of the street to the respondent No,5 by allotting it as Plot No, C.S. No,831/35.
17. The respondent No,5 not only raised unauthorized construction on newly-created C.S. No,581/35 but has further encroached upon the street on the western side of the plot by constructing on 1-1/2 feet further of the street.
18. ' We on careful examination of the inspection report of the Additional Registrar coupled with the material placed by the City Surveyor, have found that in fact on the western side of the Plot C.S. No,C-581/18, there is a street having width of 20 feet and an area of 40 sq. Yard (360 sq.Feet) of the street has been unauthorizedly leased out by the respondent No,2 to the respondent No,5 by allotting it Plot No,C.S.581/35. The Sukkur Municipality in law cannot allot any portion of street to any private person nor can any construction could be allowed to be raised on street to cause inconvenience to the public. Public streets are meant to provide comfort and convenience to the public and no public functionary in law has any authority to allot and or lease out any portion of it, in any manner, as these are public amenities. No private person could be allowed to utilize public amenities by raising unauthorized construction on it to the disadvantage of the public at large.
19. ' We are clear in our mind that the respondent No,5, in collusion - with Sukkur Municipal Corporation respondent No,2 has raised illegal construction of petrol pump beyond the plot line on the City Survey No,C-581/18 by encroaching towards its northern side an area 555 Sq.Yds., and towards its Western side an area of 432 Sq.Ft which is unauthorized. The lease of portion of street under the garb of Plot bearing No,581/35 is unauthorized as not a single inch of any street can either be allotted or leased out to any private person by any public functionary.
20. ' The petition of the respondent No,5 bearing No,151 of 2005 was also heard by us and we find that the relief sought therein are misconceived for the aforesaid reasons. The respondent No,5 has procured lease from the Municipal Corporation respondent No,2 unauthorizedly which lease of Plot C.S. No,581/35 being unauthorized stands revoked/cancelled. The respondent No,2 as exceeded its authority in leasing out the portion of street by treating it as Plot C.S. No,581/35 to the respondent No,5.
21. ' The respondent No,5 shall confine his construction activity within plot line of C.S. No,587/18 and construction beyond that shall be removed by him within the stipulated time- give in our short order, failing which the T.M.O. Sukkur Municipal Corporation (respondent No,2) is directed to remove the construction/ encroachment within 2 days thereafter and if need be may seek assistance of police, which the D.P.O., Sukkur shall provide to them, and report compliance of the order of this Court through Additional Registrar.
22. ' These are the -reasons of our short order passed allowing the. Petition No,288 of 2005 filed by the Sajjadullah Qureshi and dismissal of the Petition No,151 of 2005 filed by the respondent No,5 in limine. Copy of the order be communicated to respondent No,2 for compliance.