1. ' KHILJI ARIF HUSSAIN, J.---By this petition, the petitioner seeks the following relief: "It is, therefore, prayed that this Hon'ble Court may be pleased to issue direction to the respondents Nos.2 and 3 immediately open the closed roads for General Public and Walls, Iron, Iron Rod, erected/fixed by the respondents Nos.2 and 3 immediately removed/demolished/broken." (sic)
2. ' Brief facts for the purpose of disposing of the petition are that the petitioner, who is a resident of Chanesar Goth, Karachi, questioned the closure of street by the respondent-society, stated that the Chanesar Goth is a thickly populated area and where there is graveyard for the people of that area situated in Defence Housing Authority and closure of the main road which was connecting Defence to Chanesar Goth. The respondents Nos.2 and 3 without prior permission from the Authorities closed the, road by constructing permanent structure. The said respondents upon inquiry verbally informed the petitioner that due to the security reason this road has been closed and cannot be opened for general public. The respondents filed reply and admitted the closure of the road; however, stated that the land belonged to respondents Nos.2 and 3/Society and the said Society is Governing Authority of the said road and has exercised his power in accordance with section (9)(2)(ii) & (ix) of the Ordinance.
3. ' Heard Mr. Ch. Muhammad Jamil, learned Advocate for respondents Nos.2 and 3, Mr. Muhammad Sarwar Khan, learned Addl. A.-G. And Mr. Syed Zaki Muhammad, learned DAG.
4. ' Mr. Ch. Muhammad Jamil, learned Advocate for respondents Nos.2 and 3 relied upn section 9(2)
(ii) and (ix) further argued that the respondents Society can in his own discretion close street or road as it deemed fit and the petitioner has no locus standi to question the same.
5. ' Mr. Syed Zaki Muhammad, learned DAG as well as Mr. Muhammad Sarwar Khan, learned Addl. A.G.
6. Frankly conceded that no one has any authority to close or obstruct street or road as roads are made for the use of general public.
7. ' We have taken into consideration the arguments advanced by the learned Advocates for the respondents as none was present on behalf of the petitioner but we have decided to dispose of the petition on merits in view of the importance of the General Public as important question of law is involved in the matter. In order to appreciate the contention of the learned Advocate for the petitioner it is worth first to reproduce Inspection Report of the Commissioner appointed by this Court vide order dated 7-5-2003 which reads as follows: "From the site it was clear that impediment/hurdle has been created, which according to the information provided by the person, named above had been made by DHA and is there for-the last about one decade.
8. ' The nature of impediment/hurdle is that it is on the brink of 1st North Street, DHA, Karachi, leading to the main Mahmood Abad Road/Parsi Gate and no vehicular traffic of any nature whatsoever is possible. Even the movement of pedestrians is difficult because of presence of round swinging gate installed at the impediment/hurdle.
9. ' It will be advantageous to note that the 1st North Street is 40 feet wide; one end of which starts from the point of the impediment/hurdle and leads upwards to the circular avenue and if the impediment/hurdle would have not been there, free vehicular and pedestrian traffic would have been possible."
10. ' From the perusal of the report as well as photographs annexed along with the petition it is clear that the respondent-society has closed the road by raising permanent structure on it and the said road was connecting the respondent-society with the main road of Mahmoodabad. By an Indenture of Lease dated 25th March 1965, President of Pakistan granted lease for a term of 92 years in respect of 196,121 acres of land to respondent-society excluding the area of 66.32 acres utilized for municipal services, namely, roads, parks, schools, mosques, and playing grounds etc. It is worth to mention here that the Government of Pakistan has not charged any premium in respect of 66.32 acres of land to choice mark for using roads, parks, schools, mosques etc. And the said area was meant for municipal services. One of the terms of the lease was that respondents- society was required to carry out at his own cost land survey and prepare layout plan showing alignment and width of the proposed roads, streets, lanes, paths etc., and building lines on each side of Greater Karachi, topographical characteristic and natural features of the site shall be used to the full advantage and no road or street led in the said area shall be less than 40 feet if intended for vehicular traffic, less then 20 feet if intended pedestrian traffic. Respondent-society was required to prepare the plan showing detail of construction of roads, street, lanes, paths and sidewalks apart from other features. The said pan was to be approved by the lessor viz., Federal Government. Respondent-society was required to complete the scheme after due approval of the same by the authorities. From the perusal of the Indenture of Lease it appears that after approval of the layout plan by the authorities respondent-society cannot modify, amend or alter the same without prior approval of the authorities. It is an admitted position that the respondent-society prepare the plan which was approved by the authorities and the roads in question erected was constructed in accordance with the plan. The said road has an opening from respondent-society to the main road of Mahmoodabad. Section 192 of the Cantonment Act, 1924 prohibits that the Board shall not permanently close any street or open any new street prior sanction of the competent authority. Section 283, Pakistan Penal Code provided danger or obstruction to public way or line of navigation, who opts created obstruction in any public way for public land or navigation punishable with a fine which may extend to two hundred rupees. Chapter IV of Sindh Local -Government Ordinance, 1979, prohibits obstruction in the street required for removal of any such obstruction. It, is an admitted position that the road in question is not a private road for any private individual but public road in use for public convenience. In the case of State of U.P. v. Ata Muhammad, AIR 1980 SC 1785.
11. "When a street is vested in a Municipal Council, such vesting does not transfer to the Municipal Authority the rights of the owner in the site or the soil over which the street exists. It does not own the soil from the centre of the earth usque ad ceelurn, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above, the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a necessary action against trespassers."
12. ' In the case of Ranjit Singh and others v. Ram Nath Singh and others (AIR 1976 Allahabad 417) the Allahabad High Court recognized the right of access to the pathway at all points where the house adjoining the pathway belongs to the owners of the house and that they could sue for removal of the obstruction or interruption of the right. In the case of Abdullah and another v. Ahmad Khan and 10 others 1988 CLC 1301, it was held: "The perusal of the cases noted above would show that the Courts in the Sub-Continent have consistently held that a person in the immediate neighbourhood entitled to use a local public thoroughfare has a special cause of action irrespective of the fact that he has proved special damage or not. The principle is that a person of immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss. The inhabitants of the vicinity or thoroughfare or residents of the village are entitled to seek removal of the obstruction without proving special damage."
13. We are of the view that the easement right has been created in favour of the General Public to use roads and streets constructed by the local bodies, societies, etc., for the general convenience of the inhabitants of the city and no one has authority to take away such right of enjoyment and to deprive the general public from convenience permanently except in accordance with law. The authorities are expected to act in the interest of General Public by providing amenities as light, education, health and road facilities and not to take away such rights. The right of way and right to use road, street is a right in rem available against the whole world and it is attached with lands and can be described as a right against land itself irrespective of the person to whom the land belongs.
14. ' For the foregoing reasons we allow the Petition and direct respondents Nos.2 and 3 to remove structure which they have been raised on the road.
15. ' These are the reasons of our short order dated 13-4-2004.