1. ' WAJIHUDDIN AHMED, J.---Constitutional Petitions Nos. D-604 of 1994, D-1029 of 1994 and D-2258 of 1995 are inter-connected. The facts, as set out in Constitutional Petition No, D-604 of 1994, have a nexus with 22 petitioners therein, allegedly, acquiring rights in different plots of varying sizes in Survey Nos.34 and 35, Deh Okewari, Tapo Songal, Karachi, through respondent Al-Rehman Housings in the latter's purported project, known as Nasheman'. Such Al-Rehman Housings is stated to have secured the land from the Trustee, Pinjrapur Trust. However, when the said Al- Rehman Housings applied for approval of their plan from the K.D.A., the same is stated to have been declined for allegedly insufficient reasons. Attempts were made by the respondent-K.D.A., to dispossess the petitioners. The petitioners, in essence, seek protection. Hence their said petition.
2. Constitutional Petition No,D-1029 of 1994 was filed by six petitioners, the first of them being the said Al-Rehman Housings itself. The remaining petitioners do not appear to be common to Constitutional Petition No, D-604 of 1994. It proceeded on, more or less, similar pleas and grounds.
3. That petition was dismissed by us for non-prosecution today itself. In Constitutional Petition No,D- 2558 of 1995, 54 petitioners therein have sought regularisation on similar pleas. The list of the petitioners in such petition also includes the 22 petitioners of Constitutional Petition No, D-604 of 1994. Relevantly, the facts stated in paragraph-5 of the memo of petition are reproduced below:-- "5. That during the pendency of the abovementioned Constitutional Petition the petitioners named in the said Constitutional Petition and other occupants of their respective houses in the housing project had moved the respondent No,3 herein to regularize the possession of the petitioner which application was moved through the registered Association and the said respondent through its summary for the Chief Minister of Sindh recommended the regularization of the possession of the petitioners upon their respective houses upon the conditions (i) withdrawal of cases, (ii) undertaking not to claim services, road etc. (iii) payment of cost of land under rules, where after the officials of the respondent No,1 conducted physical survey of the houses in question, assigned new numbers to the houses of the petitioners, noted down the requisite particulars of the petitioners, the respective family members, the areas and construction/accommodation of the respective houses and a detailed list to the above effect was prepared by the officials of the respondent No,1, sent the same as well as its letter dated 5-9-1995 and lay out plan of the area covered by the houses of the petitioners, certifying that the houses of the petitioners were not affecting the 200 feet wide and the 60 feet wide water conduit reservation owned by the K.W. And S.B., photo copy of the respondent No, 1 's letter dated 5-9-1995 is annexed herewith and marked P/5, while photo copies of the list of occupants of the houses and other particulars prepared by the respondent No,1 is annexed herewith and marked P/6."
4. ' Apart for Declaration and Permanent Injunction, the petitioners also seek regularization, as above stated.
5. ' The Karachi Development Authority has repudiated the claims of the petitioner in the petitions under reference. The K.D.A. Maintains that the land in question belongs to it and that the petitioners have raised unauthorised constructions thereon, which are liable to be removed. The attempts as to regularization, as reflected in the paragraph reproduced above, however, do not seem to be pointedly disputed.
6. ' The facts gleaned from the pleadings indicate that the lands in disputes do belong to the K.D.A.
7. And the petitioners in these petitions are unauthorised occupants. Al-Rehman Housings did not, apparently, have any valid title, which they could pass to the petitioners. The petitioners have, however, to be suffered, for the time being, because of inapt conduct of the official respondents themselves. In the process, puce structures have come up at the site, which seem to have been provided with electricity and other amenities. The Excise and Taxation Department also is claimed to have assessed the same. Even so, illegalities cannot be cured by mere lapse of non-prescriptive time or inaction on the part of the officials bordering on collusiveness.
8. ' In this factual and legal background, we have heard the learned counsel. Having heard them, we are in a position to pass a consent order in the two petitions but such order would be subject to all rights and is to be read in conjunction with the other orders on record.
9. In the first place, we have tried to impress upon the learned counsel for the Karachi Building Control Authority (K.B.C.A.) the regrettable fact that the disputed structures at the site in question have come up largely on account of the inadequacies prevailing in the K.B.C.A. The K.B.C.A. Is a creature of the Sindh Building Control Ordinance (V of 1979). It has, in all circumstances, to enforce its statutory mandate. To begin with the K.B.C.A. Is not concerned with the title of any land. Irrespective of everything it has to be wary and watchful of all unauthorised and unlawful constructions within its area of operation. Title becomes material only, if and when an owner of a piece of land, moves the K.B.C.A. To accord approval of a building plan. An approved plan under the Ordinance of 1979, and the rules framed thereunder cannot be issued to any person without due title much less to an unauthorised occupant. Correspondingly, it is the bounden duty of the K.B.C.A., if it is at all to implement its mandate, to ensure that no unauthorised construction, without a duly approved plan, comes up within the area of its jurisdiction. All or any transgressions have to be visited with prompt and effective action on the part of the K.B.C.A. This, as a rule, should be adhered to by the K.B.C.A. In all respects pertaining to all areas covered by its jurisdiction. If any unauthorised constructions are still raised the K.B.C.A. Has full powers to have the same demolished. Where an unauthorised structure comes to be occupied, the K.B.C.A. Has jurisdiction to forcibly evict the unauthorised occupants. Unauthorised buildings can also be sealed pending further action. All the foregoing are supplemental to one another. Such, inter alia, is the effect of sections 6 and 7-A of the Sindh Building Control Ordinance, 1979. In short, the K.B.C.A. Has to implement the law, which has created it. Nothing short of that would justify its existence. See: Sardar Begum Faruqui v.
10. Rashida Khatoon, 1990 CLC 83.
11. ' In so far as respondent Karachi Water And Sewerage Board is concerned, it does not seem to be an affectee since its conduit water-line is at a safe distance from the disputed area.
12. ' Regarding the Karachi Electric Supply Corporation (KESC) its learned counsel, Mr.A.R. Akhtar, has stated that the KESC is not concerned with the authorised or unauthorised nature of a structure and all that it has to ensure is compliance of its own Rules, wherever supply of its electricity has come to be made. We have reservations about such a stance. If the KESC adopts such a position that may amount to conniving in wrong-doing where unauthorised structures are involved. This is not to be expected from any responsible public institution. With this caution, we would, in the circumstances, leave the KESC free to act according to law with reference to the area in question but, since the damage already seems to have been done, before any adverse action is taken by the KESC, in respect of any occupant, such would be preceded by due notice.
13. ' Relevant to the Evacuee Trust Property, Mr. M.G. Dastgir, the learned counsel for such trust, says that the property in dispute no longer belongs to the trust and has since been acquired by the K.D.A., rendering the trust as a non-interested party in the dispute.
14. ' On his part, Mr. M. Aslam Kiyani, appearing for the K.M.C., says that, at the relevant time, the K.M.C.
15. Was in the picture because it had the control of the K.W. And S.B., which position no longer prevails.
16. ' The only crucial parties, therefore, which are left in the field are the Government of Sindh and the Karachi Development Authority (K.D.A.) on the one hand and the petitioners on the other.
17. ' It does not appear to be disputed that the petitioners have occupied various segments of the land in the area from time to time and surveys have taken place, both at the level of the K.D.A. And by the Nazir of this Court. The K.D.A. Survey, which is on record, clearly shows 54 occupants in the disputed area with specific dimensions of land in their occupancies. The petitioners in the latest Petition namely, D-2258 of 1995 are also 54 in number. What is more, it does not seem to have been denied that coupled with the order of the then Minister of Housing and Planning, dated 13-4-1995, the following summary was floated for the Chief Minister Sindh:-- "SUMMARY FOR CHIEF MINISTER: ' Regularization of plots in Survey Nos.34 and 35 Deh Okewari Block No,10 Gulshah-e-Iqbal. Karachi.
18. ' On a note of Director-General, K.D.A., submitted to Minister for Housing Town Planning, Sindh regarding regularization of plots in Survey Nos.34 and 35 Deh Okewari, Block-10, Gulshan-e-Iqbal, the Minister was pleased to give the following orders (Annexure-A): ' The regularization can be allowed provided cost of land is paid to K.D.A., cases are withdrawn and undertaking is given that the land of water supply will not be affected since there is ban but this is a case of hardship.
19. ' Please put up summary for Hon'ble Chief Minister.
20. ' The matter has been examined by the Director-General, K.D.A., who has furnished the following report:
(i) That from the perusal of application it reveals that the applicants have purchased the plots from M/s Al-Rehman Housing Project, who announced their scheme on Survey Nos.34 and 35, Deh Okewari, Block-10, Gulshan-e-Iqbal, Karachi. After the purchase of the plots they approached the K.B.C.A. For approval of building plan but the same were not approved due to some dispute between the K.D.A. And the promoter of the above project. It has further been stated that promoter of the above project, Mr. G.H.Brohi who expired had filed suit against the K.D.A. And obtained stay order from the High Court of Sindh during his lifetime, which is still in force. The applicants have now approached with the request to regularize 1.8 acres of land which is in their possession and had raised pucca construction thereon and are living with their family members. They have also undertaken that they are ready to make payment of the cost of the above plots and are also ready to withdraw the suit from the Court if K.D.A. Assures regularization in their favour (Annexure-C).
(ii) That Survey Nos.34 and 35 stand taken over/handed over by the K.D.A. From the Evacuee Trust Property vide their decision taken in the joint meeting held with the K.D.A. In pursuance of the decision, necessary payment was also made by the K.D.A. To Evacuee Trust Property Board. The major part of the above Survey No, has already been planned and consumed by K.D.A. Except two strips of land in between the conduit reservation of 200' wide and 60' wide as shown in the green colour of the attached map prepared after survey by the Executive Engineer, Scheme No,36. The applicants have filed suits! Constitutional Petition before the Court/High Court of which the suit No, SMA/87 of 1988 (Correct C.A. 87 of 1988) and 704 of 1994 stands disposed of decided wherein the Constitutional Petition No,1029 of 1994 is still operative and stay is operating against the K.D.A..
(iii) That the site was inspected jointly by the Director (D&HC) and the Director, P&UD, K.D.A. And it was found that both conduits are not affected because of the construction of those houses. The land in between two conduits is available at one side and along with the K.D.A.'s drain on the other side as shown in plan.
(iv) That Chief Minister's Inspection and Evaluation Team has earlier conducted investigation in connection with the removal of encroachments/unauthorised constructions from Karachi Water and Sewerage Board's Water conduits in Karachi, copy placed at (Annexure D) for kind perusal. The said report has identified the various encroachments but there is no mention of land in question.
21. ' The Karachi Development Authority has furnished points for consideration in the matter as under:- -
(i) There are cases pending in the Courts of law against K.D.A. And
(ii) In fact, the reserved space for water conduit reservation and H.T. Line should be 200' and 20' (as shown in the working drawing No,PB-24/191 Revision No,1, dated 16-10-1972) respectively, the available space is 221. But there is no space available for services/roads which would be required for these houses. It is pointed out that a space of 14' wide is required to lay the underground service such as Water Supply, Sewerage, Gas and Telephone and Electricity. One row of the houses is abutted to the nullah at one side. The other rows of the houses about 60 conduit reservation on one side and 221' wide space on the other side (This 221' space includes conduit, H.T. Line and encroachment in the shape of lawn and compound wall of the bungalow by 10' to 20') Submitted for further orders please.
22. (Sd.)
23. (SAFDAR ALLY AGHA)
24. Secretary to Govt. Of Sindh Housing Town Planning & Environment Department.
25. ' Order of the Minister H.T.P:-- "Regularization is recommended subject to the following:-- (i) Withdrawal of the cases
(ii) Undertaking not to claim services, road etc.
(iii) Payment of cost of land under rules.
26. (Sd.)
27. 13-4-1995"
28. ' The current and prevailing position is that the matter rests with the Chief Minister Sindh but orders are still awaited.
29. ' Examining the controversy, in its broad perspective, we have come to the conclusion that, rightly or wrongly, the petitioners are located on the disputed land and have also incurred valuable commitments in the way of raising structures, which are to be found in the area as a fact to be contended with. On its part, the K.D.A. Is required to develop and dispose of lands largely on market values and on competitive basis. If the disputed land had not been encroached upon that is what the K.D.A. Would have in any case done namely, it would have prepared a scheme for the area and disposed of the plots in a just, fair and competitive manner on market prices. That the K.D.A. Is not precluded from doing even now. Indeed, we are informed that the area is already covered by the Gulshan-e-Iqbal Scheme. Thus, if there is no impediment in regularizing the petitioners, surely, the petitioners can be charged the prevailing market values at the time of regularization. We under- score the words "market values at the time of regularization" for the summary seeks only payment of the cost of land, which would be much lower in monetary terms and should amount to premium on wrong-doing and thus clearly impermissible. If market price at the date of regularization, if any, is charged that would prejudice neither the revenue nor the petitioners, who, in such a situation, would be able to protect the expenditures, which they have willfully incurred on the land. At the same time, if and when such a regularization comes into play, the K.D.A. Would ensure that the constructions are adapted to the applicable statutory requirements and the rough edges are smoothened. Only such amenities, however, need be provided as can legitimately be made available.
30. ' With the order in the foregoing terms, all the learned counsel are satisfied and, in fact, subscribe to by way of consent. For appropriate orders, to be passed duly and in accordance with law on the above summary, we fix a period of six weeks. During such period the petitioners would not be evicted from their holdings.
31. Having said as much, we expect that no further encroachments nor any additions to the already existing encroachments would be undertaken by any one in the area and the Nazir of this Court would remain Commissioner in respect of the disputed land till final orders, such as they may be, are passed at the governmental level. It will be the Nazir's duty to see that no further transgressions take place. Nazir's fee is, tentatively, fixed at Rs,5,000 to be deposited by the petitioners within one week.
32. ' Petitions disposed of together with applications pending in it.