MUHAMMAD FAHEEM WALI, J.- We, through this single judgment, propose to decide the following writ petition along with the instant one, as a common question of law & facts is involved in all these petitions: 1) Writ Petition No.374-D/2018 with CMs No.418-D/2018 and 31-D/2021 Engr. Dawar Khan Kundi Vs. Govt. of Khyber Pakhtunkhwa & others 2) Writ Petition No.561-D/2021 with CMs No.894 & 895-D/2021 Zahid Latif Vs. Govt. of Khyber Pakhtunkhwa & others
2. Common facts of all the three constitutional petitions, filed under the mandate of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are that the petitioners have filed these petitions as public interest litigations to point out the violation of the provisions of Khyber Pakhtunkhwa Local Government (Site Development Schemes) Rules, 2005, by the developers as well as public functionaries while evolving residential and commercial activities in District D.I.Khan without adhering to legal procedure and requirement; which resulted in lack of basic amenities to the general public on one hand and loss to the government exchequer on the other hand.
3. In compliance of the order of this Court, the respondent No.5/Tehsil Municipal Administration D.I.Khan submitted para-wise comments wherein issuance of desired writ has been opposed.
Besides, this Court vide order dated 23.02.2021 constituted a committee consisting of District & Sessions Judge D.I.Khan and Senior Civil Judge (Admin) D.I.Khan to prepare a report containing following details: i. List the residential and commercial schemes in District D.I.Khan after the promulgation of Khyber Pakhtunkhwa Local Government (Site Development Schemes) Rules, 2005, which were established in contravention of these Rules; ii. Legal/Penal action taken against such schemes, if any; iii. Legal/Penal action if not taken, then the names & designations of delinquent authorities; iv. List of illegal societies and commercial schemes, where on-site construction is in progress after the order dated 09.10.2018. v. The Committee shall ensure that the Deputy Commissioner, D.I.Khan, and TMO D.I.Khan have stopped the construction work etc in all the illegal societies etc, in compliance of order dated 09.10.2018.
4. Accordingly, after thorough analysis the report has been submitted to this Court.
5. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
6. We, before discussing other merits of this petition, deem it appropriate to first resolve the objection of learned Assistant Advocate General that the public interest litigation is unnecessarily cluttering up the files of the Court and adding to the already staggering arrears of cases which are pending and it should not therefore be encouraged by the Court. Public interest litigation, to our mind, is an extremely important jurisdiction to be exercised by the constitutional Courts. The Courts in a number of cases have given important directions and passed orders which have brought positive changes in the Country. The Courts' directions have immensely benefited marginalized and ignorant sections of the society in a number of cases. It has also helped in protection and preservation of ecology, environment, forests, marine life, wildlife etc. The Court's directions to some extent have helped in maintaining probity and transparency in the public life. This court while exercising its jurisdiction of judicial review realized that a very large section of the society because of extreme poverty, ignorance and illiteracy had been denied justice for time immemorial.
Predominantly, to provide access to justice to the poor, deprived, vulnerable, ignorant and marginalized sections of the society, the public interest litigation seek to bring justice to these forgotten specimens of humanity. Pendency of cases in the Court cannot be a reason for denying access to justice to the poor, weaker and ignorant sections of the community. Courts of Pakistan are in-fact the courts for the poor and struggling masses, sensitised to the need of doing justice to the large masses of people to whom rights have been denied by public functionaries or the executive. Portals of the Court are open to the poor, downtrodden, ignorant and the illiterate, and their cases are coming before the courts through public interest litigation.
7. The public interest litigation is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few; the poor and ignorant people too have civil and political rights and the Rule of Law is meant for them also. While rendering this view, we are fortified by the dictum laid down by the Supreme Court of Indian jurisdiction reported as "Peoples Union for Democratic Vs. Union of India & Others" (1982 AIR 1473) and "Forward Construction Co. & Ors. Vs. Prabhat Mandal (Regd.) Andheri & Ors." (1986 AIR 391).
8. All these listed constitutional petitions are filed under the big banner of the public interest litigation and the focal point of all these petitions is non adhering to the provisions of Khyber Pakhtunkhwa Local Government (Site Development Schemes) Rules, 2005 (the Rules), before developing any land into commercial or residential project.
9. The Government has provided a detailed and complete procedure in the Rules for site development which commence from submission of application for the sanction of scheme under sub-Rule (1) of the Rule 3, to the Tehsil Municipal Administration, after fulfilling the requirements as envisaged in sub-rule (2) of the Rule 3 of ibid Rules. Such requirements are: L Scrutiny fee @ Rs. 500/- per kanal of the proposed scheme; ii. Developer's ownership/ title documents in respect of land proposed for the Scheme along with khasra plan (Aks-e-Shajra) duly verified by the concerned District Officer Revenue; iii. A non-encumbrance certificate pertaining to the land proposed for the scheme duly issued by the competent authority with active participation of the Board of Revenue, 7[Khyber Pakhtunkhwa]; iv. A location plan and layout plan of the scheme including the division of the scheme into plots, provision for streets, drains and open spaces, reservation of land for public utility services to be ultimately transferred to the CD&MD or TMA, as the case may be on completion of the scheme by the developer to be prepared by a Town Planner keeping in view planning standards laid down in rule 8; v. Topographic/ site survey of the area; vi. Copy of the national identity card of the Developer or its authorized representative, as the case may be; vii. Details of land proposed to be acquired, if any, provided that land proposed to be acquired shall not exceed 20% of the total area of the housing scheme; viii. Statement of works that shall be executed at the cost of the Developer; and ix. Statement of the period during which the area shall be developed.
10. On receiving the application of a developer for site development, after meeting the above requirements, the concerned TMA shall refer the same to the scrutiny committee, established under rule 4, to examine the scheme, its designs and specifications in view of the following pre- requisites, as enumerated in Rule-5 of the Rules:
(a) that all the documents/ requirements as per rule 3(2) are complete;
(b) That width of access road is not less than 30 feet;
(c) That scheme is safe from the danger of flooding;
(d) That minimum area of the scheme is not less than 160 kanals;
(e) That land is not required or have been notified by Government for any other purpose; and
(f) That the land is free from any legal, repercussion and safe from any encumbrance to develop the scheme;
11. According to planning standards of a residential scheme, per Rule 8 of the Rules, the area of open spaces/parks should not be less than 7% of the total area of scheme, graveyard should be at 2% of the area, commercial area should not be less than 5% of the total area, maximum size of plots should be 1000 sq yards with at least 30 feet wide roads and 2-10% of the total area of scheme should be meant for public buildings. Besides, standards for Farm Housing Scheme have also been provided in the said rules but the same being irrelevant to the present controversy, needs not be discussed.
12. As mentioned above, a committee was constituted to answer the framed queries of this Court and accordingly a detailed, blow-by-blow & comprehensive report has been submitted by the Committee which reveals that the business of unapproved and illegal housing schemes continues to grow in D.I.Khan district as there are a number of unregistered and unapproved housing societies and the entire District, due to rapid urbanization, has succumbed to unplanned development and an acute failure of the administration to enforce the building bylaws and Local Government (Site Development Scheme) Rules 2005. As a result, irregular constructions have popped-up all over the district and there is a growing trend of building residential structures on agricultural lands in the outskirts without obtaining the requisite permissions. The increasing population and housing needs have already turned large swathes of green lands into concrete structures, which may have cascading effects on the food security in the years to come. Though the concerned authorities of District Administration have identified the illegal housing schemes but had so far failed to stop illegal business and could not take solid steps to devise a policy to stop the general public not to invest in these unlawful activities. People continue to purchase residential and commercial plots at exorbitant prices in the unapproved housing societies. The continuous business has been encouraging others to initiate more and more housing schemes with no obstruction from the authorities concerned.
13. The relevant excerpts from findings of the Inquiry Committee, in response to the queries of this Court, are reproduced hereunder: "Question-1: List of residential and commercial schemes in District D.I.Khan after the promulgation of Khyber Pakhtunkhwa Local Govt. (Site Development Schemes) Rules, 2005, which were established in contravention of these Rules. findings: Lists provided by TMOs, D.I.Khan, Paharpur and Paroa containing detail of illegal residential and commercial schemes in District D. I. Khan annexed.
Question-2: Legal/penal action taken against such schemes if any?
Findings: As per reports of Bailiffs, construction work in so many illegal colonies was in progress.
As on eye-wash action only three fine receipts were annexed with Annexure-D of TMO, D.IKhan, according to which the fine was imposed upon the property dealers namely Sohail Rajpoot, Mr. Arshad Baig & Mr. Rashid Anwar but not upon the owners of the said illegal housing societies and no further record was found to show as to whether any legal action was taken against the owners/ proprietors independently or not, by the responsible authorities i.e. DC, DPO, AC 's and TMOs etc. Similarly, despite the issuance of muraslas by the TMOs, to the concerned police stations, the matter was not properly pursued for taking legal action (i.e. lodging of FIRs) against the delinquents, or if police was reluctant for register FIRs, the quarters concerned could have approached the Court of Law U/S 22-A Cr.PC for lodging of FIRs against all the delinquents/owners of the illegal housing societies, but in fact issuance of muraslas by TMOs was merely aimed to shift their burden on the shoulders of other departments.
The offices of DPO, DC and all the ACs concerned of D.I.Khan District was in knowledge of the said muraslas but all the quarters have not shouldered their respective responsibility showing no interest in taking legal action against all the delinquents under the law.
The TMOs concerned and other relevant departments remained silent spectators, playing no positive role in the matter, which clearly shows malafide on their part.
Question-3: Legal/penal action if not taken, then the names and designations of delinquent authorities.
Findings: The under mentioned authorities are responsible for not taking proper legal/penal action against the owners of illegal housing societies:
1. The Deputy Commissioner, D.I.Khan.
2. The DPO, D.I.Khan.
3. All the ACs concerned.
4. All the TMOs concerned.
In this regard, directions have been issued to DPO and DC, D.I.Khan vide letter No. 1856- 57/SCJ- Admin dated 08/12/2021 & letter No. 1858/SCJ-Admin dated 08/12/2021 respectively for provision of the names of the above cited incumbent officers along with their tenure at D.I.Khan District, during the issuance of order dated 09-10-20189 by the Hon 'ble Peshawar High Court, D.I.Khan Bench, who were responsible for not taking legal/penal action against the owners of illegal housing societies.
In response to the communication, the DPO, D.I.Khan has provided the said information vide letter No. 1854 dated 09-12-2021, as under: NAMES OF DPOs & TENURE AT D.I.KHAN Mr. Zahoor Babar Afridi (PSP), From 23-6-2018 to 28-01-2019.
2. Dr. Muhammad Iqbal, From 29-01-2019 to 06-03-2019.
3. Mr. Salem Riaz, From 06-03-2019 to 23-07-2019.
4. Mr. Dilawar Khan Bangash, From 25-07-2019 to 30-11-2019
5. Capt (R) Wahid Mehmood, From 30-11-2019 to 26-10-2020
6. Mr. Arif Shahbaz Khan Wazir, From 12-11-2020 to 12-03-2021
7. Capt (R) Najam ul Hasnain Liaqat, From 13-03-2021 till date.
The DC, D.I.Khan has provided the requisite details vide letter No. 84/BC dated 26-01-2022, which is as under: NAMES OF ADMINISTRATIVE OFFICERS & TENURE AT D.I.KHAN DEPUTY COMMISSIONERS, D.I.KHAN: Mr. Nouman Afzal Afridi (Died), from 01-12-2017 to 28-11-2018.
Mr. Barkat Ullah Khan, from 29-11-2018 to 20-04-2019.
Muhammad Umair, from 21-04-2019 to 26-10-2020.
Mr. Arif Ullah Awan, From 27-10-2020 till date.
ASSISTANT COALVISSIONERS. D.I.KHAN: Mr. Rooman Burhana, From 27-06-2018 to 13-11-2018.
Mr. Cap: (R) Aun Haider Gondal, From 14-11-2018 to 02-12-2019.
Muhammad Mohsin Sala-ud-Din, From 04-12-2019 to 27-11-2020.
Mr. Nawab Sameer Hussain Laghari, From 15-12-2020 till date.
ASSISTANT COMMISSIONERS, KULACIH: Mr. Ishfaq Ahmad, From 01-07-2018 to 23-10-2018.
Mr. Naimat Ullah Khan Kundi, From 26-10-2018 to 01-01-2020.
Mr. Kiramat Ullah Khan, From 14-01-2020 to 27-09-2021.
Mr. Aziz Ullah Jan, From 29-09-2021 till date.
ASSISTANT COMMISSIONERS. PAHARPUR: Mr. Pir Muhammad Mehsud, From 26-07-2017 to 21-01-2019.
Mr. Asif Kamran Mehsud, From 13-03-2019 to 25-09-2020.
Mr. Rao M. Hashim Azim, From 28-09-2020 to 23-07-2021.
Mr. Noor Muhammad Afridi, From 26-07-2021 till date.
ADDL: ASSISTANT COMMISSIONERS/ll. DRABAN: Mr. Jawad Sardar, From 07-08-2017 to 26-06-2018.
Mr. Kiramat Ullah Khan, From 26-06-2018 to 13-11-2019.
Mr. Shah Behram, From 01-01-2020 till date.
ADDL: ASSISTANT COMMISSIONERS/I, PAROA: Mr. Asif Kamran Mehsud, From 07-08-2018 to 25-06-2018.
Mr. Habib Ullah Wazir, From 26-06-2018 to 03-05-2019.
Mr. Shah Wazir, From 03-05-2019 to 03-03-2020.
Mr. Ahad Yousaf, From 18-03-2020 to 30-07-2020.
Mr. Shah Nadeem, From 10-08-2020 to 24-06-2021.
Mr. Yadullah Khattak, From 26-07-2021 to 14-09-2021.
Mr. Kiramat Ullah Khan, From 27-09-2021 till date.
ASSISTANT COMMISSIONERS. TSD, DRAZINDA: Mr. Sami Ullah Khan From 14-04-2017 to 13-01-2020.
2. Mr. Tariq Saleem, From 14-01-2020 to 06-04-2021.
Mr. Sami Ullah Khan, From 07-04-2021 to 27-09-2021.
Syed Gulfam Abbas Shah, From 01-10-2021 till date.
TEHSIL MUNICIPAL OFFICERS, D.I.KHAN Mr. Naveed Khan, From 20-04-2018 to 14-06-2019.
Mr. Umar Khan Kundi, From 15-06-2019 till date.
TEHSIL MUNICIPAL OFFICERS. PAHARPUR: Mr. Hameed Ullah Khan, From 11-07-2017 to 03-02-2020.
Mr. Anwar Muhammad Shah, From 04-02-2020 till date.
TERSE MUNICIPAL OFFICERS, KULACHI.
Mr. Arif Waseem, From 13-03-2018 to 12-02-2019.
Muhammad Avub, From 16-02-2019 to 14-07-2020.
Mr. Munir Akhtar, From 15-07-2020 to 26-10-2020.
Mr. Aman Ullah, From 17-11-2020 till date.
TEHSIL MUNICIPAL OFFICERS, DARABAN: Mr. Aman Ullah, From 19-03-2018 to 21-01-2021.
Mr. Sohail Mumtaz, From 21-01-2021 to 24-04-2021.
Mr. Munir Akhtar, From 27-04-2021 to 09-07-2021.
Muhammad Sayya m, From 05-08-2021 till date.
TERM MUNICIPAL OFFICERS. PAROA: Mr. Shahzad Sohail Mumtaz, From 20-12-2017 to 10-12-2018.
Mr. Anwar Muhammad Shah, From 11-12-2018 to 03-02-2020.
Mr. Hameed Ullah Khan, From 04-02-2020 till date Question-4: List of illegal societies and commercial schemes, where on-site construction is in progress after the order dated 09/10/2018: Findings: Lists provided by the TMOs concerned are attached. Verification reports of Bailiffs are annexed. Detail of Bailiff's reports highlighted in the tabulated format are attached.
Question-5: The Committee shall ensure that the Deputy Commissioner, D.IKhan and TMO, D.I.Khan has stopped the construction work etc in all the illegal societies, in compliance with the order dated 09/10/2018: Findings: As per reports of Bailiffs, the construction work was going on in most of the colonies/commercial areas, and the concerned departments were well aware of this violation.
In this regard, separate letters were issued to different quarters. Letter No. 1538/SCJ-Admin dated 15-10-2021 to DC, D.I.Khan and Letter No. 1540-42/SCJ-Admin dated 15/10/2021 to all the TMOs, wherein they were strictly directed to ensure stoppage of construction work in the said illegal housing societies, in the light of directions of the Hon 'ble Peshawar High Court, D.I.Khan Bench.
In response to the above cited directions/ letters, the DC, D.I.Khan submitted his detailed report vide letter No. 8071/DC/AG-IV dated 10/11/2021 along with its enclosures/reports of all TMOs, which is as under: REPORT OF TMA. D.I.KHAN: vide No. 2395/TMA/DIK dated 09-11-2021:
1. The operation was launched against the delinquents/proprietors under the leadership of the ADC and DC, D.I.Khan.
2. The TMAs D.I.Khan, Paharpur & Paroa took strict legal action against the illegal colonies i.e. demolished boundary walls, site offices, electric poles & main gates etc (photocopies of the pictorial operation are annexed).
3. The offices of property dealer's was sealed bythe TMA, D.I.Khan, who were involved in sale/purchase of plots.
REPORT OF TMA, PAHARPUR: Vide No. 1403/TMA, Paharpur dated 25/10/2021:
1. TMA, Paharpur deputed staff to stop the works in the illegal housing societies situated in the jurisdiction of TMA, Paharpur.
Pana-flaxes regarding their non-registration (Copies of the pictorial operation are annexed).
REPORT OF TMA, PAROA: Vide No. 3585/TMA Paroa dated 22/10/2021:
1. Notices/muraslas have been issued against delinquent owners/proprietors etc for stoppage of construction work.
2. The matter has been communicated to DSP, Paroa Circle vide letter bearing No. 3208/TMA Paroa dated 18-03-2021 for lodging of FIRs against the delinquents/ illegal housing societies within the jurisdiction of TMA, Paroa.
NOTE/FINDINGS The aforesaid belated action/operation of the concerned departments does not seem a genuine effort in the matter, therefore, the Committee is totally dis-satisfied with the role played by the concerned authorities throughout and it shows that the responsible authorities negligently disregarded the directions of the Hon'ble Peshawar High Court, D.I.Khan Bench and did not take proper action against the violators of law in the subject matter."
14. In view of the provisions of Khyber Pakhtunkhwa Local Government (Site Development Schemes)
Rules, 2005, as it was the duty of Tehsil Municipal Administration to receive the application from a developer with all the documentations and scrutiny fee @ Rs.500/- per kanal and placed the same before scrutiny committee consisting of the following: (a)District Coordination Officer of the District concerned Convenor (b)Executive District Officer (Works & Services) of the District concerned Member (c)District Officer Revenue of the District concerned Member (d)A representative of Housing Authority established under Khyber Pakhtunkhwa Housing Authority Ordinance, 2005Member
(e) Member (f)A representative of the Environmental Protection Agency; and Member (g)T.O. (Planning) of the concerned TMAMember/ Secretary Thereafter the Scrutiny Committee is required to invite public objections under Rule 6 of the Rules, 2005, and then the T.M.A. upon examining the application of developer in the light of public objections or suggestions, if any, and the planning standards, shall convey their observations/ objections, if any, to the Developer within thirty days who shall resubmit the same after attending the same. The process of final sanction of the scheme and its communication and its supervision & control have been provided under the Rule 9 & 16 which reads as under:
9. Sanction and its Communication.- (1) The Scrutiny Committee Shall forward its recommendations in respect of each application received by it under 3(4) to the TMA or CD & MD as the case may be, on completion of scrutiny.
(2) The CD & MD or TMA as the case may be, shall notify the final approval based on such recommendation of Scrutiny Committee.
(3) In light of the recommendation of Scrutiny Committee, CD & MD or TMA, as the case may be, shall call upon the developer to complete the following:-
(i) Deposit the scrutiny fee provided in clause (a) of Sub-rule (2) of rule 2 for sanction of the scheme; (ii). Submit transfer deed for transfer of the area under roads, open spaces/ parks and graveyard to the CD & MD or TMA as the case may be. The area so transferred shall not be used by the transferee for any other purpose; (iii). 20% of the saleable area shall mortgage with the CD & MD or TMA, as the case may be, as a security for the development works or bank guarantee of National Bank of Pakistan or the Bank of Khyber equivalent to the total cost of development works shall be provided by the Developer; and (iv). Transfer 1% of the total scheme are for public buildings, excluding the area of Mosque, to the CD & MD or TMA, as the case may be. The area so transferred shall not be used by the transferee for any other purpose.
(4) CD & MD or TMA, as the case may be, shall, at the Developer's cost, cause to be published in two daily national newspaper public notice giving the details of plots mortgaged with it, if any, providing that such plots shall not be purchased or disposed of until the same are released after satisfactory completion of the development works.
(5) The developer shall include the following in the advertisement.
(a) Total area of the approved scheme along with its location;
(b) Total number of residential and commercial plots of various sizes as approved by the competent authority;
(c) The detail of plots mortgaged with the CD & MD or TMA, as the case may be;
(d) Period for completion of development works;
(e) Name of sanctioning authority and letter of sanction, and
(f) In case of location of plots through ballot, it shall be indicated in the development works.
(6) No scheme shall be advertised or published in any forum, media and press, nor shall plots or houses be offered for sale in any scheme prior to its sanction. In case of violation a fine of Rs.
1000/- per day from the date of appearance of the advertisement till the sanction of the scheme shall be imposed on the developer.
16. Supervision and Control.-(1) The Provincial Government may call for and examine the record of any proceedings for the purpose of satisfying itself to the correctness, legality or proprietary of sanction of Scheme, recommendations observations, penalty or order recorded or passed as to the regularity of any proceedings.
(2) On examining the record the Government may pass such orders as it deems fit, but before cancelling or recalling sanction of the Scheme. Government shall provide the developer an opportunity of being heard.
15. In view of the above extracted provisions of the K.P. Local Government (Site Development Schemes) Rules, 2005, coupled with the report of the Committee, there is flagrant violation of the law on the part of officials of the District Administration which not only resulted into loss to the government exchequer, but also a nonfeasance, and failure on their part in the performance of their mandatory official functions and thereby betrayed the sacred trust of the public of D.I.Khan.
The Deputy Commissioners and Tehsil Municipal Officers & Tehsil Officers (Planning) of D.I.Khan district, including all concerned officials & officers at the level of Tehsils, after promulgation date of the ibid Rules i.e. 08.10.2005 till date, are responsible for non-registration of the housing societies and failure in maintaining the required standards and fulfilling prerequisites of such schemes as required by the ibid Rules from 8' October, 2005 till date. The matter is, therefore, referred to the Chief Secretary, Government of Khyber Pakhtunkhwa, to take stern action against all the delinquent officials including registration of criminal cases under the Prevention of Corruption Act, 1947; and legal action should also be taken against illegal housing societies established after 08.10.2005 within the purview of Rules 9 & 16 of K.P. Local Government (Site Development Schemes) Rules, 2005 and any other law for the time being enforced in Pakistan governing the matters of housing societies and commercial buildings. Follow-up report should be submitted to the Additional Registrar of this Court on fortnightly basis.
16. All the listed writ petitions and CMAs stands disposed of in the above terms. In the last, we appreciate the efforts of learned District & Sessions Judge D.I.Khan and Senior Civil Judge (Admn)
D.I.Khan in preparing a comprehensive report after thorough probe besides discharging their assigned judicial and administrative duties.