GULZAR AHMED, C.J.--- Karachi Circular and Local T rains.
We have extensively heard the matter regarding the Karachi Circular Trains so also Karachi Local Trains. During the course of hearing the Secretary Railways has made a statement that the Executive Committee of the National Economic Council (the ECNEC ) has taken a decision of handing over the operation and running of the Karachi Circular Trains and Local Trains to the Provincial Government of Sindh. We have asked him to place before the Court such a decision of the ECNEC but he was unable to show the same. The Secretary Railways shall ensure filing of the said decision of ECNEC and in this regard the matter is adjourned to 21.02.2020.
C. M. A . No.690-K/2019 .
Royal Park Building
2. This matter relates to a plot of land measuring 2 Acres, said to be bearing Survey No.333 out of Na-class No.210, Deh Okewari, Gulshan-e-Iqbal Town, Karachi, adjacent to Aladdin Park on Rashid Minhas Road, on which apparently , a residential/commercial building was being constructed and in the order of this Court dated 09.05.2019, it was noted that the land on which this construction was taking place, was owned by the Evacuee Trust Board and it was also pointed out by Mr. Ashraf Saeed, Chairman ABAD , that this land belongs to the Horticulture Society . The Court, therefore, issued notice to the builder and at the same time restrained the builder from making further construction and directed the Commissioner , Karachi to take possession of the said project.
The builder , in response to the said notice has filed C.M.A. 690/K of 2017..
3. Mr. Badar Alam, learned ASC has appeared on behalf of the builders and contended that the builders were allotted this land by the Sindh Revenue Board on 04.05.1991 and a 99-years lease dated 07.07.2010 of the land has also been made in favour of the builder .
4. On the other hand, Mr. G.M. Qureshi, Chief Legal Counsel for the Evacuee Trust Board, has strongly opposed this contention of the builder and contended that this land belongs to the Evacuee Trust Board and at the same. time, it was also contended by the former Chairman, ABAD that the land was allotted to the Horticulture Society by KDA but due to non-payment, the KDA cancelled the allotment to the Horticulture Society and some litigation on this aspect of the matter is going on.
5. Learned Advocate General also stated that the land was allotted to Horticulture Society by KDA but owing to non-payment, the KDA cancelled the allotment.
6. We have considered the submissions of the respective counsel and have also gone through the record of the case. The builder claim ownership of the land on the basis of an allotment letter dated 04.05.1991 and execution of lease dated 07.07.2010.
7. The allotment letter relied upon by the learned counsel for the builder is attached at page-43 of C.M.A. No.690- K/2019 filed by the builder and such allotment letter is in respect of two acres of land in Na-class No.187, Deh Okewari, Taluka Karachi East. The lease dated 07.07.2010, which is filed at page-37 along with the said CMA, refers to the letter dated 04.05.1991 but in recital No.3, it shows that there is an exchange of two acres of land from Na-class No.210, Deh Okewari, Gulshan-e-Iqbal Town, Karachi on the same terms and conditions in lieu of area of two acres from Na-class No.187 vide letter dated 21.06.2010 of the Secretary Land Utilization Department, Government of Sindh. This letter of exchange dated 21.06.2010 is not available on the record. The document dated 08.06.2010, which is a letter of the Secretary of the Land Utilization Department, Government of Sindh, addressed to the Executive District Officer (Revenue) CDG, Karachi, makes reference to the regularization of two acres of land from Na-class No.187 of Deh Okewari, Karachi. The minutes of meeting of the Sindh Government Land Committee dated 26.08.2009, in the first place, make reference to regularization of 30 acres of land from Na-class No.187 Deh Okewari, Karachi to Naseer Abdullah Hussain Lootah and ultimately , decided to regularize two acres of land from Na-class No.187 of Deh Okewari, Karachi. The possession letter dated 06.03.2014 (at page-50) shows that the builder has been given possession of Survey No.333, Na-class No.210 of Deh Okewari, Karachi. In the copy of the site plan (at page-75), there is no mention of Survey No.333 in Na-class No.210, rather Na-class No.210 has been shown altogether separ ately from the two acres of land claimed by the builder , on which survey number is not mentioned. There is no mention of Na-class No.187 in the site plan. The SBCA, through its letter dated 01.06.2016, has given approval of proposed building plan on plot No.A, Survey No.333, two acres in Na- class No.210, Deh Okewari, Scheme No.24, Gulshan-e-Iqbal Town, Karachi. There is no plot-A in Survey No.333 in Na-class No.210 and the Scheme No.24 of Gulshan-e-Iqbal Town, Karachi, which is referred to in this letter , is a KDA Scheme and the title, thus, has to originate from KDA and not from the Revenue Department of the Government of Sindh. There is a letter dated 11.11.2015 (at page-80 of the application), which tries to explain bifurcation of Na-class No.187 of Deh Okewari, Karachi into Na-class Nos. 209 and 210 and further stating that there was no shifting of its original location nor is it a case of exchange under section 17 of the Colonization of Government Land Act, 1912. This very letter of the Survey Superintendent, Karachi addressed to the Section Officer-I, Land Utilization Department, directly contradicts what is mentioned in the lease dated 07.07.2010, which is specifically referred to as an exchange.
8. The learned counsel for the applicant also read section 10-A of the Colonization of Disposal of Government Lands Act, 1912, Clause (b) of subsection (2) of which provides as follows:- "(b) no land for commercial purpose shall be disposed of except by open auction at a price not less than market price."
We have asked the learned counsel to show whether any auction of the land in question was conducted. In reply he states that he has no document to show that any auction was conducted. He admits that the provision of section 10A(2)(b) applies to the property in question. Where the very basic requirement of holding auction of public property is not complied with, the sale of government land by the Government of Sindh to anyone, including the present applicant, was void ab initio on the face of it. It will be regarded as an illegal exercise on the part of the Government of Sindh. Hence the land in question is purported to have been illegally sold by the Government of Sindh, Revenue Department, thus, all documents pertaining to transfer of the said land, right from its allotment dated 04.05.1991 untill the execution of lease dated 07.07.2010, are hereby declared as unlawful. Even otherwise, the allotment and lease, appear to be false and fraudulent documents and thus, not sustainable in law and are hereby cancelled. The application is dismissed.
9. The Commissioner , Karachi is already in possession of this property which is purported to have been under construction. The Commissioner , Karachi is directed to immediately demolish the building and clear the land. Such exercise will be carried out by the Commissioner , Karachi within a period of two months and a report in this respect shall be made available to this Court.
10. We further note that in the very order of allotment dated 04.05.1991 (placed at page 43 of the C.M.A.), several other allotments of land have been made in N-class No.187 of Deh Okcwari Taluka Karachi East. Messrs Ahmed Ali Construction Company were granted 15 acres, Mubeen International 2 acres, China Builders 2 acres, Mustafa and Company 2 acres, Combined Builders 2 acres and Mrs. Sabra Begum 1 acre. Let a report regarding such allotments and the present status of the lands so allotted be submitted by the Commissioner , Karachi to us in a written report as we apparently find that such allotments also suffer from grave illegality , not being based on genuine letter(s) of allotment and the Government of Sindh, could not have leased the land for 99 years for residential cum-commercial purposes in the stated manner , as such condition of allotment is nowhere available in any provision of law . Any relaxation in this regard is also against the public policy .
Kidney Hill Park
11. As far as the Kidney Hill Park on Shaheed-e-Millat road is concerned, although it is claimed by the Mayor , Karachi (the Mayor) that the whole of the 62 acres of land has been vacated from encroachers and working on making it a public park has started and large number of trees have already been planted, however , one Mrs. Amber Ali Bhai, CEO Shehri has pointed out that the whole of the 62 acres of land has not been vacated as there still remains seven and a half acres of land under encroachments and on such land there exist houses and a school, by the name of Foundation Public School. If such be the position, Commissione r Karachi is directed to ensure removal of all illegal encroachments from the remaining seven and half acres of land, after due verification of site and record. Such exercise shall be carried out today and compliance report be submitted before the Court tomorrow i.e. 07.02.2020.
Hill Park
12. Regarding Hill Park, it is informed that the Park land has been encroached and constructions thereon have been made. The Commissioner Karachi undertakes that all illegal constructions from the Park Land shall be immediately removed and not an inch of the land, on which park was established will be allowed to be encroached upon. A report in this regard shall be filed by the Commissioner Karachi within a period of two weeks. If any order has been passed in this regard by any of the Courts below , the same shall have no effect and this Court, exercising jurisdiction under Article 184(3) of the Constitution, its order shall have precedence over such orders will be executed accordingly .
Bagh Ibn-e-Qassim
13. As regards the demolished building on Bagh Ibn-e-Qassim and the status quo order passed, which prevents KMC from removing the debris, notice was issued to the builder . No one has appeared on behalf of the builder , who is said to be known as "Cool Builders". In the circumstances, we direct the Commissioner Karachi to remove the debris of the demolished building from Bagh Ibn-e-Qassim and recover the cost from the builder . In case the builder does not pay the cost, the same shall be recovered by auctioning the debris that contain valuable iron and other material, which may be removed from the site of construction. The Commissioner Karachi shall conduct this exercise of E removal of debris from the site within a period of two weeks and restore the park to its original.
KIDCL
14. As far as the Karachi Infrastructure Development Company Limited (KIDCL ) is concerned, it is stated by Mr. Saleh Ahmed Farooqi, CEO of this Company that construction work on the Green Line Section was completed in the year 2017, however , for the Blue Line section, work was assigned to Bahria Town, who has since backed-out and now this work has been entrusted to his company . He states that the work on the entire project is likely to be completed by the end of this year and the transport facility will be operationalized by March, 2021. We may note that while this Company is doing construction work, it shall not be allowed to occu py or to make construction or to interfere with any of the existing parks, playgrounds or amenity spaces, meant for the public use and if any additional land is required by them for the project, the same shall be acquired by it from the relevant quarters, in accordance with law but without af fecting any of the amenities noted above.
Civil Aviation Authority .
15. As regards the Sports Complex land of Civil Aviation Authority , which was earlier gifted by it to Jesus and Mary School, it is stated by the D.G. Civil Aviation Authority (the CAA ) that such land stands reverted back to the CAA, which has an area of 39344 square yards (above 8 acres). The D.G, CAA states that some action has to be taken by the Karachi Development Authority ( KDA ).
16. The Acting D.G. KDA states that restoration of the land in the name of CAA has still not been made by the KDA, while the possession of such land is with the CAA. The Acting D.G. KDA made a categorical statement that the land will be transferred in the name of the CAA within a period of one week. When that is done, the D.G. CAA shall immediately embark upon developing the whole land into a green area/public park for the benefit of the people of Karachi. The representative of Shehri, states that fruit trees may be planted upon the land but we leave this aspect to the D.G. CAA to decide, after discuss ing with neighbours and concerned persons. The D.G. CAA shall seek professional help in this regard, to set up green areal public park. We expect that this work shall be completed by CAA within a period of six months' time from today and the D.G. CAA shall submit a report in this regard to this Court, demonstrating that such object has been achieved.
17. The D.G. CAA. further states that the CAA has a large tract of open land around the Jinnah International Airport, Karachi, which he has visited. He has stated that initially , the CAA had thought of using some land around Jinnah International Airport, Karachi for commercial exploitation but when the Court brought to the attention of D.G.
CAA that in and around the Airports, the lands in Pakistan are generally used for making of parks, the D.G. CAA agreed that no land around Jinnah International Airport, Karachi will be used for any commercial exploitation, rather , it will be utilized as an amenity for the people and particularly , parks and thick urban forest for the betterment of the environment in and around the Jinnah International Airport, Karachi, and allow such parks and forest to be used and enjoyed by the general public. The D.G. CAA has assured that the project of building parks and thick urban forest, in and around Jinnah International Airport Karachi shall be commenced soon and will be completed in the shortest possible time, with constitution with all professional people including Horticulture Department and that the D.G. CAA shall make all ef forts to complete this project within a period of six (6) months.
18. It was further informed that ST-21 Plot at Clifton Karachi is a huge chunk of amenity land, about 23 acres or more, out of which more than 8 acres of land has been allotted to CAA for Squash Complex, while the remaining land of the said ST-21 plot is lying vacant and some encroachment(s) also appears to have been made on it. The Commissioner Karachi along with the Acting D.G. KDA shall ensure that whatever land of ST-21 plot remains, excluding the plot of CAA, the same shall be got vacated from all sorts of encroachments and utilized for public amenity for which it was originally meant, i.e. a public park is to be built on it. The D.G. CAA has already stated that the plot of Squash Complex of CAA shall be transformed into a green area/public park. The remaining part of the said ST-21 plot shall also be made a green area with a huge public park and thick urban forest for the benefit of the environment and the people of Karachi and if any encroachment is found on it or any allotment is made on it, the same shall be cancelled and the whole plot of ST-21 will be restored as a public park and thick urban forest. The bifurcation of the ST-21 plot, into 21-A and 21-B shall immediately be revoked and the whole of ST-21 shall be considered as one plot and used for amenity purposes, as provided in the plan, i.e. green area, park and forest.
The Commissioner Karachi shall ensure that this is done within six months' time and a report in this regard be submitted to this Court.
Hyatt Regency Hotel
19. The matter regarding the Hyatt Regency Hotel and its land has come up before us but so far no clear picture about its fate has appeared before us. The Commissioner , Karachi has made a statement with regard to the sustainability of its structure but still we need to see the opinions of expert enginee rs. Let a report in this regard be made available to the Court and such will be done before 21.02.2020. The Attorn ey General for Pakistan is also directed to appear before the Court and submit the stance of the Federal Gover nment regarding its status. The Secretary Railways shall also give his report. Notice be also issued to the party who is claiming ownership of this property .
SEA BREEZE COMPLEX
20. A report dated October , 2019 has been submitted, jointly by National Engineering Services Pakistan (Pvt) Ltd, (NESP AK) and Pakistan Engineering Council, regarding the structural evaluation of the building, namely Sea Breeze Complex Building M. A. Jinnah Road, Karachi. Let a copy of this report be given to the Karachi Cantonment Board, who shall examine the same and furnish its own report after consultation with its engineers and professional engineers hired from outside. Such report be made available by the Karachi Cantonment Board to this Court with specific mention as to whether such building be allowed to remain or needs demoli tion. Needful be done within two weeks. The debris which are lying in the building and the water that has accumulated in its foundation shall be allowed to be removed/ drained out by Sea Breeze Complex Association and such exercise will be done in the presence of the officials of the Karachi Cantonment Board as well as the Sindh Building Control Authority (the SBCA). The SBCA has not submitted its report about the stability of this building. The expert report shall be submitted within a period of two weeks.
YMCA
21. With regard to the YMCA Ground, it has already been noted by us in our order dated 09.05.2019 that all sorts of commercial activities have been stopped and all structures of marriage halls etc. have been removed. The Commissioner , Karachi states that the YMCA Ground is being used for playing hockey and other sport purposes.
He states that he is also going to plant trees all around the playground and also provide other conveniences and facilities for the players, etc. without making any permanent structure. This exercise shall be undertaken by the Commissioner , Karachi from the funds of the Government of Sindh and it will be done within a period of one month from today . The concrete boundary wall shall also be removed, and instead, strong iron grills shall be affixed at its boundary . This too, will be done by the Government of Sindh through Commissioner , Karachi. Needful be done within a period of two months.
22. There is a dispute pending in the High Court with regards to the management of the YMCA between two rival groups. Such matter has been pending for quite some time and we expect the decision in that case will be made by the High Court within a period of six months. The Registrar of the High Court of Sindh shall put up a report with regard to the disposal of this case to the Registrar of this Court for our perusal in Chambers.
Muslim Gymkhana
23. As regards the Muslim Gymkhana, the Secretary of the Gymkhana has himself made a statement before the Court on 09.05.2019 that the Gymkhana will replace the concrete boundary wall with iron fencing. Now a counsel for the Gymkhana has appeared and has requested us for modification of this order . We are not persuaded by such request of the counsel, in that, the matter already stood concluded in our order dated 09.05.2019, which has to be complied with in letter and spirit by the Muslim Gymkhana. In case compliance is not made, the managing committee of the Gymkhana and its office bearers shall make themselves, liable to be proceeded against for the Contempt of Court.
Benazir Park
24. The matter regarding the buildings by the name Com-3 on Benazir Park, Boat Basin, Clifton Karachi has been argued before us and it is stated that one Akhlaq Memon claims to be its owner . Let notice be issued to him for his appearance on the next date of hearing along with all records pertaining to ownership of the land and approval of the building plan as apparently , the land is an amenity plot and part of the Benazir Park. To come up on 21.02.2020.
Shahrah-e-Quaideen
25. As regards the building on the corner of Block A of SMCHS, where Shahrah-e-Faisal and Shahrah-e-Quaideen meet, the DG, SBCA states that when plans were approved, its construction was allowed on this plot. It was pointed out that this plot originally did not exist on the, map of SMCHS Block A, rather it appears to have been carved out from the service road amenity/nala land and in doing so not only the SMCHS exceeded its power but also the SBCA and so also all other authorities responsible for construction of this building, who shall be dealt with severely in accordance with law. We have also noticed that Shahrah-e-Quaideen is not being maintained and is in a totally dilapidated condition. There is no semblance of any greenery or beauty on this road and all that can be seen is dust in the middle and both sides of the roads and car dealers and car repairers have made it a parking space for their cars and are exploiting the amenity land, otherwise meant for greenery , trees and beautification. The word Shahrah-e-Quaideen itself depicts that the road is named after the Quaideen of the country and at one time the Quaid-e-Azam Mausoleum with Mausoleums of other Quaideen clearly used to be visible from Shahrah-e- Faisal; now it is not, in that it has been surrounded by all types of bad and illegal constructions. The Commissioner , Karachi shall immediately ensure that the Shahrah-e-Quaideen and its three islands, one in the middle and two on both sides of the roads, are cleared from all sorts of encroachments and occupations and that these are turned into beautiful green belts with thick forestati on from Shahrah-e-Faisal all the way to the Quaid's Mausoleum. The service road on both sides of Shahrah-e-Quaideen shall also be cleared to make it serviceable and parking shall not be allowed on them. The L denters, painters and car repairers have their shops on both sides of Khudadad 'Colony and Commissioner , Karachi should ensure that these businesses in this area are not conducted and are reallocated to some appropriate place. Encroachment has been made on the green belt on the left side of the road going from Shahrah-e-Quaideen to Kashmir Road and such encroachment seems to have been made by some trust. Such encroachment should immediately be removed by the Commissioner Karachi and green area restored to its original position.
26. It is generally complained against the SBCA that it is allowing the construction of multi-storeyed buildings on small plots of land all over Karachi, This is apparently both against the law and also not sustainable. The permissions for raising of illegal construc tions/ buildings in Karachi are being allowed by the officials of SBCA On receiving illegal gratification and the DG, SBCA appears to be privy to all these activities.
27. In so many of our orders, we have noted that the SBCA is an authority , which has become totally superfluous, rather , it has itself become a cause of serious damage to the City of Karachi, for the personal gains of its own employees. Additionally , mushroom growt h of illegal and unlawful constructions, which should not at all have been allowed, are being allowed and it appears that from top to bottom the whole institut ion seems to have compromised its position and has made a total disaster of the City of Karachi. If one goes by mere observation, there are thousands of buildings in Karachi which, by their very look, show that they have been constructed illegally and in violation of building laws and it appears that such has been facilitated by SBCA's officials who indulge in bribery .
The police department and other government of ficials also give protection to these activities.
28. So far as the present DG SBCA is concerned, he merely appears to be a rubber stamp for the employees of SBCA and other government officials. He cannot take his own decisions regarding disallowing construction on the basis of the provisions of SBCA Ordinance and Regulations. In this view of the matter , it is high time that the Chief Minister of Sindh should look into the matter and take immediate measures for overhauling the SBCA and as a first step, remove the top officials of this autho rity, including the present DG SBCA and replace them with some honest persons, who can perform their jobs with propriety , honesty and in total obedience of the law on the subject. No further exploitation of rights of the people of Karachi shall be tolerated.
29. The Chief Secretary , Government of Sindh shall 'immediately take over the affairs of SBCA and deal with the same as per the law of buildings and he shall provide to the Court all approvals of buildings granted by the SBCA of more than ground plus two floors in the whole of Karachi in the last ten years, along with their addresses, names of owners, present status of such buildings and the names of the sanctioning officials. Let a report in this respect be made available by the Chief Secretary , Government of Sindh to this Court within a period of two weeks.
30. The Commissioner , Karachi has pointed out that on Shahrah-e-Quaideen, petrol pumps have been constructed on the green belts and nala land and when the administration tried to retrieve the said land, stay orders were obtained from the High Court. Learned A.G. Sindh shall immediately take measures in having the stay orders vacated from the High Court and retrieve the land from illegal possession and restore it for the purpose for which it is meant under the law. We expect that the High Court shall deal with such matters and decide the issue with promptness, within a period of two months.
31. A Director of the SBCA has appeared before the Court by the name of Mushtaq Soomro and started speaking in favour of Building Com-3. He has no authority to appear before this Court as the DG, SBCA himself is in attendance. He appears to have been motivated by someone to appear before the Court and make a statement without authority . He seems to have some papers also in his hand, which the Court has refused to take from him for he has no authority to submit any document of his department to the Court without the permission from the relevant authority and asking of the Court itself. The Chief Secretary shall ensure that he is dealt with in accordance with law .
P&T Colony
32. There were quarters of the Federal Government in the name of P&T Colony previously known as Gizri Road now Ch. Khaleeq-uz-Zaman Road. The status of the land is that it belongs to the Federal Government and some people seem to have started litigation in the High Court of Sindh claiming that the land of P&T Colony has been leased to them. The actual owner of the land, as is contended by the learned Attorney General for Pakistan, is the Federal Government and except for the Federal Government no one has any authority over the land. Many multi- storeyed buildings have been constructed in P&T Colony on the land of quarters and open amenity land which are totally unlawful and the buildings, so constructed, need to be removed in order to restore its original status.
Originally , it was meant for residential quarters of the employees of the erstwhile P&T department of the Federal Government. As P&T Department has been disbanded by the Federal Government, as stated by the learned Attorney General for Pakistan, the land has to go back to the Federal Government. Learned Attorney General states that except for some of the origina l quarters that were built by the Federal Government for accommodation of its employees, which still exist, all other constructions in the area shall be removed and no part of the land of the P&T Colony shall be allowed to be encroa ched upon and unlawfully built. He states that order of this Court shall be immediately implemented and all illegal structures from the P&T Colony shall be removed and land shall be preserved by the Federal Government for amenity purposes for the residents of the area. It may be observed that whosoever is dislocated from P&T Colony , the Federal Government shall take steps to have them resettled at other places. As the people themselves have made illegal constructions, we do not advise,the Federal P Government to pay any premium on such illegalities committed by the builders. The Clifton Cantonment Board shall lend all assistance to the Federal Government in ensuring compliance of this Court's order . Such exercise shall be completed within a period of six month.
Kachi Abadies
33. The learned Attorney General as well as the learned Advocate General, Sindh have made a categorical statement that there are serious issues, which the city of Karachi is facing and among them the most crucial one is that of `kachi abadies'. He states that these kachi abadies occupy major part of the city of Karachi, including important and expensive chunks of land in the very heart of the city of Karachi and the Federal as well as the Provincial Government, has already started planning to relocate the residents of these kachi abadies in appropriately constructed buildings with all basic amenities of modern life and create open breathing spaces in the City for the betterment of environment and the people of Karachi.
34: We direct that while undertaking such exercise, the city representatives be duly consulted and at the same time professional input shall also be obtained. We have been informed by the learned' Advocate General, Sindh that the Government of Sindh has already constituted a committee of renowned town and city planners who have started their work to give suggestions for remedying the issue of illegal constructions and rehabilitating the affected people in a decent and proper manner . Their report has already been received by the Government of Sindh but has not yet been finalized. The learned Advocate General, Sindh shall ensure that the initial report which has been received from the town and city planners, is filed before the Court and published in newspa pers and disclosed on television so that public may know about it and give their input and suggestions. It shall be discussed by persons who can make the proposed plan more understandable to the public. Be that as it may, to the extent of what is noted above, let the compliance be made. In this regard further proceedings in the case shall take place in the next session.
35. Learned Advocate General states that the Government of Sindh has started development work on Nehr-e- Khayam and when the work had barely commenced, someone approached the High Court of Sindh and obtained a stay order against such work. We do not wish to comment upon it. As the matter relates to fundamental rights and is of public importance, interruption in the development activity , which is very essential for the recreation of the people of Karachi, is not a healthy sign. The very impact of approaching the High Court and obtaining a stay order means that this scheme will not be implemented or at least delayed for 5/10 years, which will be a total disaster .
Without realizing this, someone invoked the jurisdiction of the High Court and the major activity of the Government came to a standstill. We, therefore, allow the Sindh Government to commence the construction work on Nehr-e- Khayam, however , the matter relating to commercial activity on it shall be considered by this Court after the said project is completed.
36. Mr. Abdul Rehman, who is counsel in the suit filed in the High Court of Sindh states that this serves the purpose of the plaintif f in the said suit and he may be permitted to withdraw the suit. Order accordingly .
PIA Marriage Hall
37. The General Manager (Legal Services) of PIA has appeared and assured that the marriage hall that is still standing on the land of planetarium, University Road, Karachi, will be dismantled and such dismantling shall be completed today i.e. 07.02.2020. The report regarding such dismantling be submitt ed by the PIA in the office of this Court by tomorrow . The PIA shall also submit report regarding other lands which have been given to it for using them as amenities. Details be also provided as to what actually is happening on those lands with photographs. Let report in this regard be submitted in the of fice by tomorrow .
Karachi Port T rust
38. We have heard Mr. Ali Zafar , learned ASC so also Mr. Yawar Farooqi, appearing on behalf of the Karachi Port Trust ( the KPT ) and the learned Attorney General for Pakistan.
39. On 09.05.2019, this Court has passed the order regarding the KPT Employees Housing Society on Mai Kolachi Road Karachi etc. which is as follows:- "None has appeared on behalf of KPT although notice has been served upon them for today's date. Chairman KPT is directed to be present in Court on next date with report signed by him that all port lands are used for port purposes and in accordance of KPT Act and no land whatsoever of the port is either sold/transferred, leased, allotted to any person or its employee and whatever allotment, lease or transfer has taken place to immediately cancel and revert back the same to the port.
The land on both sides of Mai Kolachi Road was full of mangroves at one time with passage of sea, water , now there is barren land and passage of sea water has been blocked. The Chairman shall ensure that plantation of mangroves is made on both sides of Mai Kolachi Road and flow of sea water is restored touching the Bath Island area. The Chairman will appear on the next date."
40 The Chairman, KPT has also appeared and stated that he stands by what learned ASC for KPT has argued before the Court. Mr. Ali Zafar , learned ASC for the KPT has argued that the land of the KPT is vested in KPT and by virtue of the Karachi Port Trust Act, 1886, the KPT is entitled to lease out, sell and transfer its properties and that there is no embargo on KPT to allot and lease out the KPT property/land for Housing Society of its employees, more so, when permission of the government in this regard has been obtained.
41. On the other hand, the learned Attorney General for Pakistan has seriously opposed the submissions made on behalf of KPT and has contended that the whole of the KPT property/land is owned by the Federal Government and it has given this land in trust to the KPT for running of the Port Operations and not for allotting or leasing out or transferring its property/land to its trustee s or any of the employees of KPT. He further contended that the KPT property/land can only be used or applied for the purposes as provided in the KPT Act and not for any other purpose. He contended that the KPT Act has not provided for allotting, leasing out or transferring of the KPT property/land to any of its trustees or employees.
42. We have considered the submissions of the learned counsel for the parties and have also gone through the record.
43. The Preamble of the KPT Act, 1886, reads as follows:- Whereas it is expedient to vest the Port of Karachi in a true and to provide for the management of the affairs of the said port by trustees "
The word Port has been defined in section 2(1) thereof as follows: "'Port' means the port of Karachi as defined for the purpose of this Act."
Subsection (4) of section 2 defines lands as follows: 'land' includes the bed of the sea below high-water mark, and also things attached to the earth or permanently fastened to any thing attached to tfie earth: Section 3 of the KPT Act provides for power to define and alter limits of Ports, which is as follows: - "(a) define the limits of the port for the purpose of this Act, and (b) from time to time alter such limits.
Such limits may extend to any part of the navigable approaches to the port, and may include any wharves, tramways, warehouses; sheds and other works made on behalf of the public for convenience of traffic, for safety of vessels or for the improvement, maintenance and good governance of the port, whether within or without high- water mark and subject to any rights of private property therein, any portion of the shore within fifty yards of high- water mark.
Section 4 thereof constitutes Board of Trustees as follows: - "Act to be carried out by trustee.--The duty of carrying out the provisions of this Act shall subject to such conditions to and limitations as are hereinafter contained, be vested in a board to be called. "The Trustees of the Port of Karachi", and such Board, hereinafter referred to as 'the Board', shall be a body corporate and have perpetual succession and a common seal, and shall sue and be sued by the name first aforesaid."
Section 18 of the KPT Act reads as follows:- "Competency of the Board to lease, sell and transfer .-- (1) The Board shall be competent, subject to the restrictions contained in subsection (2), to lease, sell or otherwise transfer any moveable or immoveable property which may for the purposes of this Act, have become vested in, or been acquire d by them and so far as is not Inconsistent with the provisions and purposes of this Act, and subject to the restrictions contained in subsections
(3) and (4), to enter into and perform all such contracts as they may consider necessary or expedient in order to carry into effect the said provisions and purposes. (1A) The Chairman shall be competent to sell, transfer or otherwise dispose of any moveable property the depreciated value of which does not exceed five hundred thousand) rupees and which in his opinion, is no longer required or useful for the purposes of the Port.
Subsections (2), (3) and (4) of section 18 reads as follows:- "Subject in certain cases to sanction of Government. In the case of every lease of immovable property for a term exceeding (twenty-five years with an option to renew for alike period of twenty-five) and, in the case of every sale or other transfer of any such property , the previous sanction of Government is required.
(3) Approval of Government to estimate when no pressing emergency and expen diture involved exceeds rupees (two hundred fifty thousand). In the case of every contract which will involve expenditure exceeding (two hundred fifty thousand) rupees not reported under Section 67 to Government, as required for a pressing emergency the previous and final approval of Government to an estimate at the time in force, in which provision is included for such expenditure, is required.
(4) Sanction of Board on Plan and estimate for new work costing over rupees (one million). In the case of every contract in respect of any new work, the estimated cost of which exceeds (one million) rupees the sanction of the Board on a plan and estimate submitted to and considered and approved by them, is required.
Section 25 of the KPT Act provides for power of the Board as to property , which is as follows: "The Board shall for the purpose of this Act, have power to acquire and hold moveable and immovable property within or without the limits of the port or city of Karachi."
Section 27 of the KPT Act provides for transfer of Government Property to the Board, which reads as follows: - "(i) If any question arises between (the Federal Government] and the Board as to the boundaries of any portion of such property , Government may define and demarcate such boundaries, and the decision of Government in respect of such boundaries shall be conclusive;
(ii) any portion of the land specified in the said schedule which shall be required by (the Federal Government) for a public purpose may be resumed by (the Federal Government) without claim to compensation on the part of. the Board, except for Buildings or other permanent structures erected thereon."
Section 29 of the KPT Act provides for the power and duties of the Board works, which is as follows: - "The works to be constructed and carried out by the Board may include the following:-"
(1) Wharves; quays, stages, jetties, piers and docks with all necessary and convenient arches, drains, landing - places, stairs fences, roads railways and approaches;
(2) Tramways, warehouses, sheds, engines and other appliances for conveying receiving and storing goods landed or to be shipped or otherwise.
(3) Lighthouses, light-ships, beacon, pilot-boats and other appliances necessary for the safe navigation of the port and of the approaches thereto within a distance of three miles from the limits of the port; (and with the sanction of Government as to the funds to be contrib uted by the Board for the purpose, lighth ouses beyond the said distance at the mouths of the Indus and at Cape Monze or the maintenance and lighting thereof)
(4) Laying down moorings and the erection of cranes, soles and all means and appliance necessary for berthing, loading and unloading vessels;
(5) Reclaiming, excavating, enolosing and raising any part of the foreshore of the port vested in the Board.
(6) The construction procuring and application of dredges and other machine s for cleaning, deepening and improving any portion of the port or foreshores aforesaid;
(7) Procuring and employing (vessel) for lowing vessels into out of or within the port;
(8) The construction of such works without the limits of the port as shall be necessary for the protection of works executed by the Board within the port, and all such other work and appliances as may, in the opinion of the Board, be necessary or desirable for carrying out the purposes of this Act;
(9) The extinguishing of fires on the property of the Board and the equipment maintenance and use of engine for that purpose;
(10) The equipment of vessels (tugs) or, other boats and their use as well within the limits of the port as on the high seas beyond those limits, and whether in territorial waters or otherwise for the purpose of lowing or rendering assistance to any vessel whether entering or leaving the port or bound elsewhere, and for the purpose of saving or protecting life or property;
(11) The supply of water to shipping in the port and the equipment, maintenance and use of boats and barges for that purpose;
(12) The extinguishing of fires in the port, and the equipment, maintenance and use of engines for that purpose; Approval of the Board and Government for commencing new works; Provided always that no new work, the estimated cost of which exceeds [one million; rupees shall be commenced by the board until a plan and estimate of such work shall have been submitted to the Board and considered and approved by them, nor shall any new work, the estimated cost of which exceeds (two millions) rupees, be commenced until such plan and estimate shall have been submitted to, and approval by Government.
Section 29A of the KPT Act is as follows: - "Lease, transfer of work, etc, - The board may, for carrying out the works referre d to in Section 29 and for their operation and maintenance, entrust, transfer , lease or assign such work to any other person, agency , department, company or contractor on such terms and conditions as may be prescribed by the Federal Government.
Provided that such person, agency , department, company or contractor shall abide by all rules, regulations and instructions made, or issued, under this Act."
44. The cumulative reading of the above provisions, as contained in the KPT Act provide that the very KPT Act was made for vesting the Port of Karachi in a Trust to provide for management of the affairs of the Port by the Trustees.
The word "Port" has been defined as the Port of Karachi and the property/land has been defined to include the bed of the sea below high-water mark, and also things attached to the earth or permanently fastened to anything attached to the earth. Section 3 (supra) gives power to the Government, which is the Federal Government to define the limits of the Port for the purpose of this Act and from time to time alter such limits. Section 4 (supra) casts duty on the Trustees to carryout the provisions of this Act, subject to such conditions and limitations, in. a Board to be called "the Trustees of the Port of Karach i", which shall be a body corporate, having perpetual succession and a common seal and shall sue and be sued by its name. Section 18 (supra) of the Act makes the Board competent to lease, sale and transfer any movable or immovable property , which may, for the purpose of this Act, have become vested in, or been acquired by them and so for as it not inconsistent with the purpose and provision of this Act and subject to subsections (2), (3) and (4). Subsection (2) thereof provides that in the cases of every lease of immovable property for the term exceeding twenty five (25) years with an option to renew for a like period of twenty five (25) years and in the case of every sale or transfer of any such property , the previous sanction of Government is required. Section 25 (supra) deals with power of Board as to property and it provides that the Board shall, for the purposes of this Act, have power to acqui re and hold moveable and immoveable property within or without the limit of the Port or city of Karachi. Section 27 (supra) provides that the property specifie d in schedule-A shall vest in the Board. Section 29 (supra) provides works to be constructed and carried out by the Board and such have been mentioned in subsections (1) to (12). Section 29A of the KPT Act provides for lease, transfer of works, the remaining provisions of the Act deal with the landing and shipping of goods etc.
45. On a detailed examination of the provision of the KPT Act, it is crystal clear that nowhere in the Act, the Board of Trustees of the Port of Karachi have been given power or authority to lease out, transfer or T sell KPT property/land for residential purpose to its employees i.e. its officers and servants. The Federal Government has created by statutory instrument, the KPT and has vested in the Board of Trustees the management of the affairs of the Port. Thus, the Board of Trustees of the Port of Karachi act as Trustees on behalf of the Federal Government in respect of management of the affairs of the Port. The power of managing the affairs of the Port does not give power and authority to the Board of Trustee to arrogate to itself or to any officer and servant of KPT, the very land of the Port which is vested in trust with the Board of Trustees. The term "Port" as defined in the Act does not include anything other than the Port of Karachi. The term land also does not go beyond the term of Port, which is below high-water mark, and things attached to the earth.
46. Learned ASC for the KPT has heavily relied upon sections 3 and 18 of the Act, which have already been reproduced above. Section 3 (supra) gives power to the Federal Government, by Notification in the official gazette, to define the limits of the Port for the purposes of the Act and from time to time, alter such limits. Section 18, as noted above, gives powers to the Board to lease, sell or otherwise transfer movable or immovable property but such has been given to the Board in respect of property which for the purpose of the Act has been made available to it and such power is not to be exercised which is inconsistent with the provision and purpose of the Act and also subject to the restrictions contained in subsections (2), (3) and (4). The very availability of the land to the Board vested in it to be used in accordance with the provision of the Act and none of its property is to be used or applied in the manner which is inconsistent with the provision and purpose of the Act. As noted above, the Act does not provide or make provision where the Board of Trustees may have been given power to lease out, sell or transfer the land/property of the Board for Housing Society of the KPT Officers and Servants. The powers of the Board as to property have been laid down in section 25 of the Act, which provides that the Board shall, for the purpose of this Act have power to acquire and hold move able and immoveable property within or without the limit of the Port or city of Karachi. Section 27 of the Act provides transfer of Government property to the Board, with certain powers to the Government to demarcate the boundaries and power of the Federal Government to resume land for public purposes from the Board. Section 29 of the Act provides for power and duties of the Board works to be constructed and such works are provided in subsection (1) to subsection (12). Though the Board of Trustees have been authorized in terms of section 23 of the Act, to make appointment of officers and servants for the Board.
Section 21 gives power to the Board to prepare from time to time and sanction a schedule of staff, officers and servants, whom they shall deem necess ary and proper to maintain for the purpose of the Act and the schedule shall also set forth the amount and nature of salaries, fees and allowances that the Board may sanction for each of such officers and servants. Thus, under the KPT Act, officers and servants are only entitled to be paid salaries, fee and allowances and not the very property/land of the Port.
47. Although it was argued before us by the learned ASC for the KPT that sanct ion of Federal Government has been obtained for leasing, transferring or selling of KPT property/land for housing societies to its officers and servants but in the very report of the Chairman, filed before this Court by way of C.M.A. No.34-K/2019, there is no mention of obtaining of such approval from the Federal Government nor copy of such Notificat:on(s) or order(s) of the Federal Government is attached with the application. However , Notifications dated 23.12.1875, 02.05.1940 and 05.10.1991, have been attached with the application, which apparently have been issued by the Federal Government under section 3 of the KPT Act, whereby limits of the Port of Karachi have been declared. Thus, what appears from the reading of the KPT Act, the Board of Trustees of the Karachi Port have nowhere been given power to lease out to its own officers and servants the property/land of the Port of Karachi for 99 years or otherwise and apparently , such leasing, transferring or selling of the KPT property/ land by the Board of Trustees, seems to be in excess of the powers vested in it to manage the affairs of the Port. The Boar d of Trustees, being Trustees of the property/land of the Port, could not have breached the trust that was vested in it by the Federal Government for managing the af fairs of the Port.
48. In the case of Habibullah. Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47), this Court has observed that "it is a well settled principle of law that all public functionaries must exercise public authority , especially while dealing with the public property , public funds or assets in a fair, just, transparent and reasonable manner , untainted by mala fide, without discrimination and in accordance with law, keeping in view the Constitutional Rights of the Citizens". Further in the case of Messrs Metalex (Private) Limited v. Government of Sindh through Secretary , BOR (PLD 2010 Karachi 414), the learned Single Judge has observed as follows:- "11. The purpose of enacting Karachi Port Trust Act, 1886 was to manage the affairs of Karachi port in an orderly manner through a Board described as "The Trustees of the Port of Karachi". To achieve this objective, the Board was conferred with various powers and duties. These are defined in Part V, sections 29 to 59 of the Karachi Port Trust Act. The powers and duties of the Board relate to the running of Karachi seaport which in turn required control over an area as well as on certain immovable properties. Under section 27 (1) of K.P.T. Act, certain specified immovable properties of the then Karachi Harbour Port were transferred by the then Government of India to the Board and upon such transfer they stood vested in the Board. These immovable properties are listed in Schedule A to the K.P.T. Act. Apart from so acquiring immovable properties, the Board was empowered to acquire immovable properties directly or through the process of acquisition under Land Acquisition Act. Such powers are contained in sections 25 and 26 of the K.P.T. Act. In order to carry out the purposes of the Act, the Board was also empowered under section 18 (1) of the Act to lease, sell and transfer immovable properties that vested in it. To deal with immovable properties that vested in the Board, the K.P.T. Act imposes certain restrictions as in evident from the provisions of sections 18 (2) and 27 of the. Act. For convenience sake, sections 18(1), 25, 26 and 27 are 'reproduced hereunder:
(18) Competency of the Board to lease, sell and transfers .---(1) The Board shall be competent, subject to the restrictions contained in subsection (2) to lease, sell or otherwise transfer any moveable or immovable property which may, for the purposes of this Act, have become vested in, or been acquired by them and so far as is not inconsistent with the provisions and purposes of this Act, and subject to the restrictions contained in subsections
(3) and (4), to enter into the perform all such contracts as they may consider necessary or expedient in order to carry into ef fect the said provisions and purposes.
(25) Power of Board as to property .--The Board shall, for the purposes of this Act, have power to acquire and hold movable and immovable property within or without the limits of the port or city of Karachi,
(26) Procedure to be observed when the Board are unable to acquire, by agreement, any immovable properly .
When the Board are unable to acquire, by agreement, any immovable property required for the purposes of this Act, the Federal Government may order proceedings to be taken for acquiring the same on behalf of the Board as if such property were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (I of 1894).
The amount of compensation awarded and all other charges incurred in the acquisition of any such property shall be forthwith defrayed by the Board and thereupon the said property shall vest in the Board.
(27) Transfer of Government property to the Board .--The property specified in schedule A shall vest in the Board; Provided that:-
(i) If any question arises between the Federal Govt. and the Board as to the boundaries of any portion of such property , Govt. may define and demarcate such boundaries, and the decision of Government in respect to such boundaries shall be conclusive.
(ii) Any portion of the land specified in the said schedule which shall be required by the Federal Government for a public purpose may be resumed by the Federal Government, without claim to compensation on the part of the Board, except of buildings or other permanent structure erected thereon.
(2) Nothing in clause (ii) of the proviso of subsection (1) shall apply to land reclaimed from harbour waters, and the Board shall be compensated for any improvements ef fected by it on any land resumed under that clause.
(3) The railway now under construction between the Bander Station and the Kemari Station may be constructed by Government along the foreshore or on reclaimed land and any other work which the. Federal Government may consider necessary in the public interests may be executed by Government in or upon any of the property specified in the said schedule without claim to compensation on the part of the Board except for building or other permanent structures which it shall be necessary to clear away for the purposes of such railway or work.
12. Now except for the above discussed modes of acquisition of immoveable property i.e. through transfers made under section 27(1) at the time of enacting the K.P,T. Act and subsequent acquisition of immovable properties under the provisions of sections 25 and 26 of K.P.T Act, no immovable property can vest in the Board. Even land reclaimed by the Board at its own cost and expense from harbour waters can be resumed by the Government at any time under the provision of sections 27(1)(ii) and 27(2) of the Act without payment of any compensation to the Board except for a claim for the value of buildings or permanent structures that may have been raised or any improvements made by the Board.
13. Reading sections 18 and 27 of the Act together , it becomes quite evident that certain restrictions have been imposed on the Board even on immovable properties that vest in the Board. This is so because ownership of immovable properties was conferred on the Board, keeping the sole purpose in mind i.e. to enable it to run and manage the affairs of the Karachi Port as defined in the K.P.T. Act and nothing more. The K.P.T. Act never intended to create Karachi Port Trust into a land owning body like co-operative societies whose members are granted absolute proprietary interests in the land with the liberty to deal with the same for their own benefit.
49. The legal position that emerges is that the Board of Trustees were not autho rized by law to create housing societies for its officers and servants and lease, transfer or sell the property/land of the Port to its officers and servants and such act of the Board of Trustees of creating housing societies for officers and servants is contrary to the very mandate of the KPT Act and is thus, declared to be wholly illegal being void ab initio. All leases, transfers or selling of property/ land of the Port of Karachi by the Board of Trustees to its officers and servants are, thus, declared to be illegal and such leases, transfers or selling of the Port property/land are hereby cancelled. The whole of the property/land leased, transferred or sold to the officers servants/workers will immediately revert to the Port of Karachi to be used strictly in accordance with the KPT Act. The Board of Trustees is only required to manage the affairs of the Port as laid down in the KPT Act and nothing more. The officers, servants/workers are only entitled to payment of their salaries, fees and allowances to be sanctioned by the Board for their services and nothing beyond it is provided in Section 21 of the KPT Act as noted above. If any amount has been received by the KPT from any of its officers, servants/workers in respect of lease, transfer or sellin g of the Port land, the Board of Trustees of KPT shall immediately refund such amount to their offices, servants/workers and shall also pay, as compensation, the difference between the values of the money when the same was received and the value of money currently prevailing. The Federal Government, who has opposed granting of lease, transfer or selling of the KPT land to the officers servants/workers of the Board shall look into the matter and deal with the Board of Trustees in accordance with law .
50. This C.M.A. No.34-K/2019, filed by the KPT is disposed of in the above terms.
51. Needless to observe that this Court while exercising jurisdiction under Article 184(3) of the Constitution has all the powers and jurisdiction to declare acts of public functionaries, which are beyond the power and in utter violation of the law under which they were required to perform their duties to declare it to be unlawful, and void ab initio and cancel the document of transaction of lease, transfer or selling of property/ land and in this regard reference is made to the cases of Suo Motu Case No.10 of 2009 (2010 SCMR 885), Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others (PLD 2013 SC 641), Imran Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistani Member National Assembly , Prime Minister's House, Islamabad and 9 others (PLD 2017 SC 265) and Ishaq Khan Khakwani and another v.
Railway Board through Chairman and others (PLD 2019 SC 602).
Defence Housing Authority
52. The learned counsel for Pakistan Railways states that two pieces of open land adjacent to Kala Pul are the properties of Pakistan Railways, which shall be converted by Pakistan Railways into Parks for the use and benefit of the people of Karachi and will ensure that boundary walls on these plots are demolished and iron grills are affixed. The Park shall contain all amenities which are necessary to be provided for a public park and shall be developed with proper consultation with persons expert in parks and professional horticulturist. This exercise shall be done by the Pakistan Railways within a period of three months and report be submitted to this Court thereafter .
To come up in next session.