ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
C. P. No. D – 100 of 2019
|
Date
of hearing |
Order with signature
of Judge |
Hearing of case (priority)
1.
For orders on
office objection at Flag-A
2.
For hearing of CMA
No.403/2019 (S/A)
3.
For hearing of
main case
22.01.2019
Mr. Sarfraz A.
Akhund, Advocate for the petitioner.
Mr. Khuda Bux Chohan, Advocate for Sukkur Municipal Corporation along
with Pir Wahid Bux, Municipal Commissioner, Sukkur Municipal Corporation.
Mr. Ahmed Ali
Shahani, Assistant Advocate General Sindh.
.-.-.-.-.-.-.-.-.-.-
Para wise comments have been filed
by respondents No.5 and 6, which are taken on record.
The subject matter of this petition
is the existing concrete structure within Ghazi Abdul Rasheed Park claimed by
the petitioner. It is the case of the petitioner that under the name and style
of “Tanzeem-e-Fikr-o-Nazar Sindh” was registered under the Societies
Registration Act, 1860 and the Commissioner was informed about the aims and
objects of its creation. The petitioner intended to establish a centre for
itself for which Federal Government had agreed to provide necessary funds for
construction of the centre and Provincial Government was required to provide
necessary piece of land free of cost at Sukkur.
The Commissioner’s letter that was
reduced into writing on 12.05.1984 disclosed that they required an area of 20,000
square yards and the petitioner was shown different places. Ultimately, the
petitioner agreed to utilize the plot that is meant for a park known as Ghazi
Abdul Rasheed Park. The letter further disclosed that around 1,000 square yards
had already been granted to Habib Bank Limited. 10,000 square yards were required
for construction of the High Court building and rest of the area i.e. 16,076
square yards was provided to the petitioner. Although the High Court was never
constructed on the said amenity plot but it shows that out of the park i.e. Ghazi
Abdul Rasheed Park, 16,000 square yards were provided to the petitioner and the
park was virtually eliminated from the master plan.
This was neither mandate of the
Commissioner Sukkur nor permissible under the Sindh Local Government Ordinance
or any other law enforced at the relevant time. An amenity plot meant for a park
will only remain as an amenity plot for park unless due course is adopted, if
permissible under the law to change the purpose of amenity. The meeting was chaired
by Commissioner, Mayor Municipal Corporation Sukkur, Assistant Commissioner
Sukkur, Abdul Majid Arain, Superintendent Engineering Public Health Engineering
Khairpur and Asadullah Bhutto, the General Secretary of the petitioner. They
were neither competent to handover park to a private organization for their own
benefit nor they could have any recourse available under the law for converting
subject park.
In our view, the construction of a building
to carry out the aims and objects of a private association / society cannot be
catered in the way as conducted by the participants of the meeting held on
12.05.1984. The execution of an agreement for 99 years is without mandate of
law, which registered agreement is void ab initio. The petitioner does not
dispute that the land which was granted to the petitioner was in fact a park,
but claims that since a registered instrument had already been executed,
therefore, all acts have been legitimized in view of the registration of the
agreement for 99 years.
We do not approve the act of execution
of the agreement for 99 years as a lawfully executed instrument nor was it mandate
of the authority i.e. Municipal Commissioner of Sukkur Municipal Corporation as
he was not authorized or empowered to lease out permanently a plot meant for
park to a private entity. Hence, the petition has no force and is misconceived
and accordingly dismissed along with the listed application with
direction to the official respondents to act strictly in accordance with law,
with special cost of Rs.10,000/- (ten thousand) to be deposited with High Court
Clinic.
J U D G E
J U D G E
Abdul Basit