' MUHAMMAD ALI MAZHAR, J:- This constitutional petition has been brought to seek following relief(s):--
(a) Declare that the act of respondent No,1 avoiding to remove the encroachment made by respondent No,4 on public streets/ place around his property/ plot bearing C.S. No,C-581/18, Minara Road Sukkur, as illegal, mala fide and without lawful authority.
(b) Direct the respondent No,1 to remove the encroachment made by the respondent No,4 forthwith and in such action he can get assistance of the District Police.
(c) Restrain the respondent No,4 from carrying out further work of structure of CNG Station over his plot/ property bearing C.S. No,C-581/18, Minara Road Sukkur, by himself, through his, subordinates/servants and/or through any other agency by granting ad interim injunction.
(d) Grant compensatory cost of this petition.
(e) Grant any other relief(s) as deem fit in the circumstances of this case.
1. The brief facts of the case as narrated in the memo of petition are that the petitioner is lawful owner of plots No, C. S. -581/ 15, ad-measuring 271 sq. Yds., C.S. No,581/16 ad-measuring 223 sq. Yds and C.S. No,581/20 ad-measuring 140 sq. Yds. Situated at Minara Road, opposite UBL Regional Office Sukkur. Adjacent to the plots of the petitioner, there is plot of respondent No,4 bearing C.S. No,581/18 ad-measuring 271 sq. Yds. It is further stated by the petitioner that a common 15 feet vide street exists in between the plots of the petitioner and the respondent No,4, connecting the Minara Road Sukkur.
2. The grievance of the petitioner is that the respondent No,4 was constructing CNG station on his plot under the name and style of "Capri CNG Station". The respondent No,4 had encroached upon a sufficient area of public streets on northern and eastern sides, therefore, the petitioner earlier filed C.P. No,D-288/2005 and during pendency of the petition, Additional Registrar of this Court was appointed Commissioner to inspect the site and submit the report and after hearing the parties, this Court vide order dated 22-9-2005, allowed C.P.
No,D-288/2005 filed by the same petitioner and dismissed the C.P. No,D-151/2005 filed by the respondent No,4.
The C.P. No,.D-288/2005 was disposed of with the following direction.
"The respondent No,5 shall confine his construction activity within plot line of CS No,581/18 and construction beyond that shall be removed by him within the stipulated time given 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 DPO Sukkur shall provide to them, and report compliance of the order of this Court through Additional Registrar."
3. Against the aforesaid order, the respondent No,4 had preferred an appeal in the hon'ble Supreme Court, which was dismissed with special cost of Rs,50,000/- with the direction to the respondent No,4 to remove the encroachment forthwith, failing which the I.G. Sindh was directed to register a criminal case against him and after conducting investigation challan was directed to be submitted in the court of law for disposal within a period of six weeks.
4. Since the respondent No,4 failed to obey the order, hence, F.I.R. No,1/2006 was lodged against him and 1st Judicial Magistrate sentenced him till rising of the Court and imposed fine of Rs,500/-. Against the said order, Cr.
Appeal No,15/ 2006 was preferred, which was also dismissed by the learned Sessions Judge, Sukkur.
5. It is further contended that in spite of first round of litigation in which not only the directions were issued to the respondent No,4 to remove the encroachment but he was also convicted but he again encroached the same street from western side and installed heavy gas boiler and also constructed and installed iron staircase in the street by which a sufficient portion of street has been encroached upon. It is further stated that the respondent No,4 also encroached upon the street from the northern side by installing heavy gas Cylinder and also encroached sufficient portion of the Minara Road, which is in front of his plot.. The petitioner approached the respondent No,1 for redress but no action was taken against the respondent No,4.
6. The respondent No,1 filed the comments in which it was stated that as per City Survey record, there is a common street in between the petitioner splot and respondent No,4's plot. It was further stated that the respondent No,4 had taken approval of building plan Taluka Municipal Administration, Sukkur and raised construction of Capri CNG station. It was further stated that on 13-10-2006, permission was allowed to respondent No,4 by the TMA Sukkur City, which is available in the Court file and shows that the respondent No,4 was allowed to use the space in front of petrol pump (eastern side) with the condition that he should not erect any structure and will maintain the drain at his own expenses. It was further stated in the same letter that the TMA reserves the right to use the same space for their own purpose at any time. In the comments, reference to a report of Commissioner appointed by this Court was also mentioned and respondent No,1 stated that there is no encroachment on main Minara Road, Sukkur, however, in the same comments it was also stated that the action for removing the encroachment, if any will be taken in accordance with law.
7. The respondent No,2 has also filed its comments but nothing was mentioned except that there is a street in between the plot of petitioner and respondent No,4.
8. The respondent No,4 also filed his comments in which, it was, inter alia contended that he has not encroached any area and all encroachments shown by the Commissioner in his report have been removed and all the orders of this Court as well as Supreme Court have been complied with. The respondent No,4 also referred to a report of respondent No,1 in which it was mentioned that the owner of plot No,C.S. 581/18 has neither drawn boundary line (wall) of his petrol pump premises nor he has closed the streets, however rickshaws/cars and other vehicles are parked.
9. The learned counsel for the petitioner argued that in pursuance of an order dated 7-5-2009, the Additional Registrar of this Court was appointed Commissioner who submitted his report on 25-5-2009 in which it was reported that the total area of the plot from south to north granted to the respondent No,4 is 45 feet but he has encroached upon 31/2 inches from southern side and 2 inches from the northern side of the streets. Likewise the northern side street was measured which also found to have been encroached upon by the respondent No,4 up to 3 inches. It was further reported that respondent No,4 has installed a heavy duty generator, an iron staircase and a gas boiler in the street of western side.
10. Again on 9-2-2011, Mr. Abdul Rahim Memon, Reader of this Court was appointed Commissioner to inspect the site and in pursuance thereof fresh report was submitted on 21-2-2011. The learned counsel further submits that in view of this report, it is clear that the respondent No,4 has encroached upon the public street but the respondent No,1 has not taken any action. It was further averred that respondent No,1 has failed to perform his duty and also failed to remove the encroachments.
11. The learned counsel for the respondent No,1 argued that the space in front of petrol pump was allowed with the condition that the respondent No,4 will not erect any structure and will maintain the drain etc. At his own expenses with further rider that TMA reserves the right to use the same for their own purpose at any time. The learned counsel further referred to the comments filed by the respondent No,1 and stated that action of removing the encroachment, if any will be taken in accordance with law and the respondent No,1 shall comply with the orders of this Court, if any passed regarding the removal of encroachment or otherwise.
12. The learned counsel for the respondent No,4 argued that the petitioner has filed this petition with mala fide intention and ulterior motive. Respondent No,4 has not encroached any portion or land of TMA but he is operating his business on is own plot strictly in accordance with law. He further argued that in the earlier Commissioner's report only minor encroachment was said to have been made with further report that respondent No,4 has installed heavy duty generator and an iron staircase along with gas boiler in the street on the western side. So far as the Commissioner's report submitted on 11-2-2011, the learned counsel referred to the objections dated 26-4-2011. He argued that as far as western street is concerned, it is clear that there is no encroachment as the iron staircase, generator, boiler and cylinder are put behind the wall of CNG station in the street, which is not common and the said installation is not creating any hindrance or difficulty. He further argued that so far as the encroachment of an area of 185 sq. Yds. Is concerned, the same was allowed to the respondent No,4 on Muhag right and the respondent No,4 has obtained the valid permission to use the same and the said area is being used to facilitate the vehicles to approach for fuel therefore the same does not come within the ambit of encroachment or in illegal occupation. The learned counsel further referred to few Rezzki receipt issued by TMA Sukkur City on the basis of which the respondent No,4 is claiming Mohag right.
13. Heard the arguments of the learned counsel. It is an admitted position that this Court appointed Commissioner for inspection of site and the last report was submitted in this Court on 21-2-2011 in which following encroachments have been reported by Commissioner on the plot of respondent No,4: "From perusal of sketch/ map it is crystal clear that area of C.S.No,c-581/ 18 in blue colour is legally owned by respondent No,4 and the area as shown in red colour from southern side from 0'-4" to 2'-8" ft. And also big portion from eastern side of CNG Station between C.S. No,C-581/18 and Minara Road also in red colour is illegally occupied by respondent No,4. With regard to the ownership of the existing big portion of an area in red colour from eastern side of the CNG station which is in his possession, the undersigned made query from respondent No,4, he disclosed that it is TMA property and he has applied for its allotment on Muhag right basis but matter has not yet been finalized.
ENCROACHMENT ON STREETS:
01. EASTERN STREET. This is main Minara Road whereon no encroachment.
02 WESTERN STREET. This street is leading to the plot bearing C.S. No,0-581/ 15, owned by petitioner Sajadullah Qureshi from the back of CNG Station, existing CC topping which is encroached by respondent No,4 by installing one iron stair, heavy duty generator (4'-8" x 14'-9"), one vessel/ boiler (2'-8" dia) and one overstep cylinder (1'-0" dia) for 3'-8" ft. In the street.
03 NORTHERN STREET. This is street between CNG station and plot C.S.No,C-581/ 15 whereon no encroachment but CC topping exists.
04 SOUTHERN STREET. This is a street between CNG station and Shalimar Complex. As per sketch, from southern side of CNG station encroachment starts by 0'-4" ft. To 2'-8" ft. Not only this but a slope from road/street of CNG station also exists, which is said to have been constructed by respondent No,4 to facilitate the vehicles to approach for fuel".
14. Along with the report, Commissioner has also submitted sketch/map in which portion of 185 square yards is marked which is TMA property. The respondent No,4 had allegedly applied the said land on Mohag but his matter has not been finalized and this portion was illegally occupied by the respondent No,4. Between the same parties in the earlier round of litigation when the respondent No,4 challenged the order of this Court in the hon'ble Supreme Court, the hon'ble Supreme Court dismissed the appeal with cost of Rs,50,000/- and affirmed the judgment passed by this Court in C.P. No,D288/2005. The judgment passed by the learned Divisional Bench of this court is reported in 2006 YLR 1471 in which it was held as under:- "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, here 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 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."
15. The contention of the learned counsel for the respondent No,4 that the respondent No,4 has applied for the Mohag right, therefore the respondent No,4 cannot be held liable for. Any encroachment is a misconceived argument. Along with the objection, the respondent No,4 has himself attached a copy of letter dated 13-10-2006 issued by TMA Sukkur City in which it is clearly mentioned that the respondent No,4 was not allowed to erect any structure while using the front space of the petrol pump and the TMA reserved its right to use the same space for their own purpose at any time. The Commissioner in his report has besides mentioning various encroachments on Western street and southern street also attached a sketch/map which shows at least a portion of 185 sq.Yds. Land under the illegal occupation of respondent No,4. The Commissioner has also attached the photographs and in one photograph, the yellow measurement tape has been shown which is clearly bifurcating the portion in lawful possession and portion in unlawful possession of the respondent No,4, which is in fact the same portion which has been earmarked in red in the sketch/map submitted by the Commissioner. The Divisional Bench of this Court (supra) has already held that Sukkur Municipality cannot allot any portion of street to any private person nor can any construction be allowed to be raised on street to cause inconvenience to the public. Public streets are meant to provide comforts and convenience to the public and no private person can be allowed to utilize the public amenity by raising unauthorized construction on it to the disadvantage of the public at large.
16. At this juncture, we would like to refer to a judgment of learned Divisional Bench of this court .Reported in PLD 2009 Karachi 309 (Madina Electric Market, v. City District Government, Karachi), in which it was held as under: -- "On perusal of above provisions, it is clear that Town Municipal. Administration and Union Council in their respective domain are not only required to prevent to remove encroachment but also to improve and maintain public open spaces, public gardens and playgrounds. It is the responsibility of Union Council to mobilize the community involvement in maintenance of public ways, public streets, culverts, bridges and public buildings, de- silting of canals and other development pursuit. It may be observed that there is general slackness rather negligence on the part of functionaries under SLGO to discharge their obligation. It is not that they lack in resources, it is the will and determination that is often found lacking. It was further held if the menace of encroachment is not nipped in the bud, it grows out of the proportion, that requires substantial resources to remove it and at the same time it creates law and order situation."
17. The whys and wherefores lead us to an irresistible conclusion that the respondent No,4 has failed to establish or produce any lease or license or alleged mohag right under which he is entitled to occupy any , fortified by the views of the learned Divisional Bench of this court supra that Town Municipal Administration and Union Council in their respective domain are not only required to remove encroachment but also to improve and maintain public open spaces but in this case, they failed to perform their statutory duties and obligations. In earlier petition between the same parties, this court has already held that 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.
18. As a result of above discussion, this constitution petition is allowed. The respondent No, 1 is directed to inspect the Plot No,C-581/18, Minara Road, Sukkur and remove all the encroachment raised by the respondent No,4 and also clear the portion of public streets/road illegally and unlawfully occupied by respondent No,4 within fifteen days positively and submit the compliance report to the Additional Registrar of this Court. Petition is disposed of along with pending application.