' QAZI FAEZ ISA, C.J.---This petition assails the order dated 28th February 2014, passed by the District Judge, Quetta, in Civil Revision Petition No, 2 of 2013, whereby the learned Judge partially set aside the order dated 8th October 2013, of the learned Civil Judge-IV, Quetta.
2. The petitioner filed a suit for declaration and permanent injunction before the Court of Civil Judge-IV, Quetta against Mr. Muhammad Alam and the Tehsildar City, Quetta, wherein the following prayer has been made:-- "(A) Declare that plaintiff is co-sharer and owner in possession of the property bearing Khasra No, 386 situated at Mohal Karaiz Atta Muhammad, Mouza Habib Tappa Saddar Kasi, Tehsil and District Quetta measuring 3 rods 32 poles.
(B) Declare that the defendant has no concern with properly in question and illegally interfering and intending to construct over channel.
(C) Through injunction direct the defendant to not interfere and construct over the property of the plaintiff bearing Khasra No,386 without consent of permission of plaintiff including defendant restrainment.
(D) Any other relief which may be deemed fit and proper in the circumstances of the case may also be awarded with costs of the suit."
3. In the said suit written statement has been filed by respondent No,1 (defendant No,1 in the suit).
During the pendency of the suit the petitioner filed an application for the appointment of a local commissioner, under Order XXVI, Rule 9 read with section 75 of the Code of Civil Procedure ("CPC").
A 'Rejoinder' to the said application was filed by respondent No,
1. The application was disposed of by the learned Civil Judge who appointed Mr. Naimatullah Achakzai, Advocate as a Local Commissioner to submit his report on the following matters: "(1) Whether defendant No,1 is making construction over the disputed Khasra No, 386 Mohal Karen Atta Muhammad, Mouza Habib, Tappa Sadar Kasi, Tehsil City Quetta?
(2) If yes, as to how much, construction over khasra No, 386 has been carried out by him?
(3) Whether defendant No,1 after passing of order dated 31st December 2012 on application under Order XXXIX Rules 1 and 2, C.P.C., has installed pillars in the water drainage or not?"
4. The learned District Judge set aside the order of the learned Civil Judge to the extent that the learned Civil Judge had excluded the "seven more points" mentioned by the respondent No,1 in the 'Rejoinder' and directed that the Local Commissioner should also submit his report with regard to the same. The learned District Judge however wrongly categorized the said points as 'seven' whereas the same were numbered by the respondent No,1 as `i to vi' (six), and are reproduced hereunder:-- "(i) How much land has prison left for its security; left place of prison be left and rest be measured up to Hudda Bridge from North to South according to site map of 1941-45 of revenue record?
(ii) How much measurement of Hudda Bridge has been given in the site map of 1941-45 and how much land has been taken from Hudda Bridge in the South by the elders of plaintiff?
(iii) The handmade map behind the mutation Khasra No, 389-390 is also to the land of Nala which has been taken from the South of Hudda Bridge and sold. Khasra No,23 is the land of Nala of Khasra No,386 which has been taken from Khasra No, 386 sold in the south.
(iv) How much the wall of Khasra No,23 has come ahead from South to North inside Khasra No,386.
(v) How wide is Khasra No, 386 according to the site map of 194145 of revenue record at this place where the wall of Khasra No,23 . Has come inside Khasra No, 386 be measured with Pemana Brinji?
(vi) How much the wall of Khasra No, 23 took here from Khasra No, 386 and how much land remained here with Khasra No, 386? "
5. The petitioner has also filed four photographs showing the structure which is being raised by the respondent No,1 on steel girders and which straddles 'Habib Nala'. The respondent No,1 has admitted before us the position as depicted in the said photographs and that he is raising the said construction. The respondent No,1 also admits not having obtained the permission from the Quetta Metropolitan Corporation) (hereinafter "the Corporation") to raise the said construction pursuant to the Quetta Building Code nor for applying for building permission. The Intiqal attached with the petition shows that Khasra No, 386 measures 3 rods and 32 poles and is a chur' or a drain, which too is not denied.
6. That in view of the admitted factual position there was no need to appoint a local commissioner for the determination of the three matters recorded in the order of the learned Civil Judge. The photographs filed by the petitioner, which are admitted by the respondent No,1, clearly show the transgression, its nature and extent. Accordingly order dated 8th October 2013 passed by the Civil Judge-IV, Quetta appointing the local commissioner is set aside. As regards the order of the District Judge whereby he had directed the Local Commissioner to also determine the points as contained in the said 'Rejoinder' the same was uncalled for. We proceed to examine the said points. The first of these points requires the determination of, "How much land has prison left for its security". The land of the prison does not concern the two private parties (the petitioner and respondent No,1) and a commission could not be appointed for its determination. Neither the Inspector General of Prisons/ Director Prisons nor the Board of Revenue, Government of Balochistan was arrayed as a defendant in the suit; for the removal of any doubt in this regard a Tehsildar cannot be categorized as the said department in view of sections 79 and 80 of the C.P.C. The remaining part of the point
(i) stipulates that, "left place of prison be left and rest be measured up to Hudda Bridge from North to South according to site map of 1941-45 of revenue record?" Point (ii) appears to be linked with the first, and requires, "How much measurement of Hudda Bridge has been given in the site map of 1941-45 and how much land has been taken from Hudda Bridge in the South by the elders of plaintiff?" It is not clear what is meant by 'given' and 'taken' and from whom and by whom. Local commissioners should be called upon to submit reports in respect of matters that are clearly stated, which unfortunately, was not the case. Point (iii) comprises of two sentences, wherein a number of assertions have been made; "The handmade map behind the mutation Khasra No, 389-390 is also to the land of Nala which has been taken from the South of Hudda Bridge and sold. Khasra No,23 is the land of Nala of Khasra No,386 which has been taken from Khasra No, 386 sold in the south. However, the Local Commissioner has not been tasked to verify or report with regard io these assertions, and the pleadings do not disclose that the same are admitted. The (iv),
(v) and (vi) points pertain to "the wall of Khasra No,23" and requires the Local Commissioner to determine: "How much the wall of Khasra No,23 has come ahead from South to North inside Khasra No,386?" "How wide is Khasra No, 386 according to the site map of 1941-45 of revenue record at this place where the wall of Khasra No,23 has come inside Khasra No, 386 be measured with Pemana Brinji?" And, "How much the wall of Khasra No,23 took here from Khasra No, 386 and how much land remained here with Khasra No, 386?" The prayer made in the suit (reproduced above) is in respect of Khasra No,386, and does not make mention of Khasra No,23.
7. We have already determined that there was no need to appoint a local commissioner since the matters the Civil Judge wanted the Commissioner to report on are clearly depicted in the photographs, which are admitted by both the petitioner and defendant No,1, consequently, the said application filed by the petitioner for the appointment of a local commissioner is dismissed.
Surprisingly, the learned District Judge did not himself formulate the points for determination of the local commissioner and simply referred to the points contained in the respondent No,1's 'Rejoinder', which are argumentative, vague, unclear and outside the pleadings of the parties and beyond the scope of local commissions. The said suit was filed by the petitioner and no set-off, counter claim or counter suit was filed by the defendant No,
1. Commissions for local investigations pursuant to Rule 9 of Order XXVI can, amongst other things, be appointed for, "elucidating any matter in dispute" so that a judge can have a clearer understanding of the facts which would help him in determining the dispute, however, this would not have been achieved.
8. That there is another very important aspect of the matter which seems to have evaded the attention of both the learned judges. Habib Nala, to which both the parties were laying claim, is a natural ravine that carries flood waters away. It is also mentioned in the 'Quetta-Pishin' volume of 'The Gazetteer of Balochistan' published in the year 1906, thus:-- "The only important flood, which has been recorded, occurred in Quetta in August, 1889, when the overflowing of Habib nallah caused a large damage to both Municipal and private buildings in the Civil Lines. The buildings known as Munshi lines were wrecked and the Police Thana and Tahsil considerably damaged. The waterway was increased in 1890-91 for prevention of such floods in future." (page 30)
Subsequently, in the absence of any sewage system the Habib Nala also served the purpose of an open sewage drain.
9. That there used to be no construction on the berms of the Nala and one could walk the length of it on either side. However, recently illegal encroachments started cropping up on the berms on either side of the Nala. Purported sale-purchase agreements may also have been entered into between parties with regard to the public lands of the Nala, as has also been urged by the respondent No,1 in his written statement; however, such 'agreements' would not create a right that could entail converting public property to private use. The ownership of the Nala is of the Government of Balochistan, and the Irrigation Department is required to keep the Nala free- flowing. The Quetta Municipal Corporation (now Quetta Metropolitan Corporation) (hereinafter "the Corporation") was required to ensure that no illegal building or structure was raised. Unfortunately, both the Government and the Corporation have been remiss in the exercise of their duties, with the consequence that the general public suffers. Today the situation is such that the Nala has been virtually eclipsed from view by a virtual wall of buildings. These buildings have been raised without even obtaining building permission from the Corporation, and thus are also built in disregard of the Quetta Building Code ("the Code"). The Code was specifically designed for Quetta in the aftermath of the devastating Quetta Earthquake of 31st May 1935, which left no building in the city standing and virtually all its inhabitants dead.
10. However, the audacity of some knows no bounds. They not only raised illegal construction on the berms of the Nala, but have proceeded to encroach within it. Construction on pillars was erected in the Nala and projections and platforms straddled the Nala. The encroachments made in the Habib Nala, prevent the free-flow of storm waters and sewage. Those who raised construction on the berm of the Nala also throw rubbish into the Nala, choking it further. Consequently, mounds of rubbish accumulated in the Nala, but the Nala could not be cleaned because nearly all access points to it from which excavators and other garbage removing machines could be lowered into the Nala had been blocked by illegal buildings. And even from the places where access could be gained into the Nala pillars that had been erected in the Nala and construction projecting into it prevented the said machines from traversing it.
11. That on account of the blockages placed in the Habib Nala storm waters and sewage would frequently flood the City, causing damage to properties as well as being a health hazard, causing a number of diseases, including cholera, typhoid, hepatitis, coli infection, salmonellosis, botulism, dysentery and diarrhea. The British rulers in the aftermath of the 1889 floods immediately went about widening the Habib Nala, which they did by 1891. However, the Government and the Corporation, who we expected to better safeguard public property and to be more concerned about protecting the life and health of the citizens, than foreign rulers, are neglectful of their duties.
As a consequence of the shameful neglect of the Government and the Corporation the once wide Habib Nala has been reduced to a narrow drain, and what little is left of Habib Nala continues to be encroached.
12. It may be mentioned that Mr. Talat Waheed, a practicing Advocate, had filed a public interest petition being Constitution Petition No, 572 of 2009 wherein amongst other grievances it was alleged that encroachments were made on public properties. The petition is pending adjudication and is tagged with C.P. No,181 of 2000, wherein a number of orders have been passed against the illegal encroachments made in Habib Nala. A number of orders have been passed including orders dated 17-9-2012, 15-102012, 19-11-2012, 11-4-2013, 15-4-2013, 20-5-2013, 8-7-2013, 2-9-2013, 21-102013, 4-11-2013, 28-11-2013, 18-12-2013, 17-3-2014, 12-5-2014, 16-6-2014 directing the Government and the Corporation to remove illegal encroachments, and to restore Habib Nala so that storm waters and sewage can flow unimpeded. Consequently, more than 136 illegal encroachments were identified, the removal whereof was ordered, and both the Government and the Corporation were directed to ensure that no further encroachments were made in Habib Nala. The Secretary Irrigation on behalf of the Government and the Administrator on behalf of the Corporation submitted compliance/progress reports from time to time in the referred petitions. After immense effort and considerable cost the encroachments were removed. In this regard orders in the said petitions dated 17th March 2014, and 16th June 2014, respectively, are reproduced here under:-- Order dated 17th March 2014: "The learned A.A.-G. Along with Mr. Naseebullah Bazai, Secretary Irrigation file report and state that all the encroachments from Habib Nala have been removed at considerable cost. The Secretary, however, states that if the Anti Encroachment Cell and Building Control Department of the Metropolitan Corporation Quetta ("the Corporation") had been vigilant the illegal constructions would not have been raised. We agree with the Secretary and appreciate his efforts in the matter.
It is indeed a matter of deep regret that due to the failure of the Corporation large scale encroachments were made into the Habib Nala, which disrupted the free flow of drain water and flood waters and caused the spilling over the same into streets, roads, houses and other properties. The sustained neglect, incompetence and inefficiency made the lives of the citizens of Quetta difficult. We can take judicial notice of the fact that there appears to be no accountability in the affairs of the Corporation. The Corporation failed in its duty to ensure that Habib Nala remained free from encroachments and also failed to prosecute a single individual, who had illegally encroached into the Habib Nala.
(2) Mr. Hadi Shakeel, Advocate along with Mr. Muhammad Yaqoob Zehri, Chief Metropolitan Officer filed report regarding cleaning of Habib Nala and state that cleaning operation of Habib Nala has been divided into four parts and some of the work has been done and some portion remains, which is expected to be completed by 30th April, 2014.
(3) In view of the fact that large scale encroachments into Habib Nala took place under the nose of the Corporation we cannot rule out the possibility that encroachments will not appear again.
Therefore, it is the need of the hour to be vigilant, which vigilance is demonstrably lacking.
Accordingly, to preserve the Habib Nala and to ensure that the citizens of this metropolis do not suffer further the Secretary Irrigation should, in coordination with the Corporation, formulate a plan for periodical inspection and cleaning of Habib Nala. In this regard it would be appropriate to prepare a large scale map of Habib Nala, which should be divided into easily identifiable sections, and specific persons from the side of Irrigation Department and the Corporation should be made responsible to ensure that Habib Nala remains free from encroachments and is periodically cleaned. The Secretary proposes on behalf of his department that the appropriate person would be the Executive Engineer Irrigation Department Quetta Division and the Chief Metropolitan Officer of the Corporation states that on behalf of the Corporation the head of the Anti Encroachment Cell and Chief Sanitation Officer would be responsible. Both the Secretary and the Chief Metropolitan Officer suggest that such inspection should be carried out a least once every calendar month and a detailed report of the inspection be submitted.
' Secretary Irrigation to therefore submit the sectionalized plan of Habib Nala and the Standing Operating Procedures and checklist with regard to the aforesaid on the next date of hearing.
' The Secretary states that it would also be appropriate if at certain vulnerable positions warning notices be fixed that an encroachment made into Habib Nala violates the law and is also a criminal offence, and that the said notices should also contain the contact number/s where illegal encroachments can be reported. We agree with the said suggestion, photographs of the same be filed on the next date of hearing."
Order dated 16th June 2014: "Secretary, Irrigation has submitted a report which states that there has been no visible progress in the work that the Metropolitan Corporation Quetta ("the Corporation") is carrying out through its contractor since the last date of hearing, i,e, 12-5-2014. The Corporation has submitted its own report which contradicts the statement of the Secretary Irrigation.
' Mr. Asad Gillani Secretary Local Government is present in the Court and states that he will personally visit the site and determine as to whether the Corporation/its contractor is carrying out the work and if not he will ensure that it is done expeditiously.
' The representative of the irrigation Department states that, despite the orders of this Court, new encroachments are coming up. He is directed to provide the details of the same to the Administrator of the Corporation, who shall ensure that the Habib Nala is not encroached upon in any manner and the orders of the Court are strictly complied with. Mr. Muhammad Qahir Shah, Advocate on behalf of the Corporation undertakes that immediately upon being intimated the Corporation will take action against any illegal encroachment. The Corporation is also directed to depute its own team to visit the site periodically and ensure that no one encroaches into the Habib Nala. Whenever required the concerned SHO to provide security."
13. The action of respondent No,1 in raising a platform on girders which straddles Habib Nala also contravenes the orders passed by this Court in the said petitions. Moreover, the respondent No,1 can have no right, title or interest with B regard to Habib Nala, the ownership whereof is of the Government and which can be categorized as a public amenity. Respondent No,1 also candidly admitted before us that no building permission was taken from the MCQ.
14. Therefore, for the reasons recorded above this petition is disposed of in the following terms, but with no order as to costs:--
(1) The order dated 28th February 2014, passed by the District Judge, Quetta, in Civil Revision Petition No, 2 of 2013 and order dated 8th October 2013, of the learned Civil Judge-IV, Quetta passed in the Suit No,76 of 2012 are set aside and the application for the appointment of local commissioner filed by the petitioner is dismissed;
(2) Neither the petitioner nor respondent No,1 is permitted to claim any right, title or interest in respect of Habib Nala which is a public Nala;
(3) The encroachments made by respondent No,1 in Habib Nala, whether raised on girders that straddle Habib Nala or otherwise, are declared to be wholly without lawful 'authority and the same are directed to be removed forthwith;
(4) In case the respondent No,1 does not remove the encroachments mentioned above within two days the Government of Balochistan and the Metropolitan Corporation Quetta are directed to remove the same at the risk and cost of the respondent No,1, and
(5) The Government of Balochistan and the Quetta Metropolitan Corporation are directed to remain vigilant and to ensure that no construction is raised in Habib Nala or which projects into Habib Nala, and if any encroachments are made to immediately remove/ demolish the same at the risk and cost of the encroacher/s. ' Copy of the order passed today be sent to respondents Nos. 2 and 3, Civil Judge IV, Quetta, Secretary Irrigation Government of Balochistan, Administrator Quetta Metropolitan Corporation, the concerned S.H.O. And the learned Advocate General for information and compliance.