IN THE HIGH COURT OF SINDH AT KARACHI
C.P.No.D-1455
of 2008
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
1.
For
hearing of Misc. No.9223/2008.
2.
For
Katcha Peshi.
3.
For
hearing of Misc. No.6962/2008.
-.-.-.-.-.-.-.-.-.
28.09.2012
Mr. Rizwan Ahmed Siddiqui and Mr.
Azizuddin Qureshi Advocate for the petitioners.
Mr. Falak Sher Advocate for the
applicants/proposed interveners.
Mr.
Ahmed Pirzada Advocate and Mr. Syed Sultan Ahmed Advocate for KMC alongwith
Iftikhar Kaimkhani Sr. Director Master Plan, Najamuzzaman Director Lands-I, KMC
and Mazhar Khan Deputy Director land Orangi Town KMC.
-.-.-.-.-.
The
petitioners, through the instant petition, sought the following reliefs:-
(i)
That the
actions of the respondents 2 to 4 to try to allot the land reserved for PARKING
according to the layout plan of Orangi Township in front of petitioners plots
to the land grabbers is malafide, illegal, without lawful authority and
apprehension of powers.
(ii)
That the
respondents have got no jurisdiction to deprive the petitioners from their
fundamental rights which are guaranteed under Article 4 of the Constitution of
the Islamic Republic of Pakistan 1973 to use the parking space adjacent to
their plots.
(iii)
That the
actions of the respondents are arbitrary, unjustified without lawful authority
and have no legal consequences and have got no authority to issue the said
illegal challans/ allotment/ transfers and all acts done by the respondents
have no effects.
(iv)
That the
direction to the respondent No.7 be issued to take immediate enquiry against
the respondents No. 2 to 4 for the issuance of illegal challan/ allotment/
transfer orders on the basis of forged/fabricated documents with the collusion
of land grabbers in respect of the land reserved for PARKING in the layout plan
of Orangi Township and located in front of the plots of the petitioners
commercial plots and submit their report before this Hon’ble Court.
(v)
That
prohibitory writ/injunction restraining the respondents, their officer,
servants, representatives, subordinates, agents, attorneys, assigns etc. or any
other person or persons claiming through and under their behalf from issuing
illegal allotment/transfer orders and or respondent No.6 not to register lease
deed/sale deed to the land grabbers and disturbing the open land reserved for
parking space in front of the petitioners plots and directed the said land to
be intact in accordance with the layout plan of Orangi Township as assure by
the then EDO (Revenue), CDGK and DCO, CDGK in their note and make ensure that
encroachment if any made on the basis of illegal allotment/transfer orders and
by creating so called plots on the basis of forged/fabricated and unlawful part
plan/drawing and from doing all such acts, deed and things by the respondents
by which the rights of the petitioners are prejudiced in any manner and from
creating third party interest in the reserved parking land of the petitioners.
It is stated that the
petitioners, who are the auction purchasers/ allottees of plots bearing Nos.LS-10,
LS-11, LS-15, LS-16, LS-19, LS-20, LS-21 and LS-24, Sector 5, Orangi Township
Scheme No.28, Karachi, which plots they have purchased in an open auction
conducted by the defunct KDA in the year 1971-72. The petitioners have
purchased the plots in question keeping in view the fact that in front of their
plots there was 150 feet wide road and across the road, an area was earmarked
for parking. Certain peoples started encroaching upon the said land reserved
for parking. Upon enquiry, the petitioners were told that various plots in the
parking lot have been allotted to the persons trying to encroach upon the land.
During the pendency
of the petition, applicants, numbering 13, filed an application for
intervention in the proceedings. They claimed that they are bonafide
purchasers/owners/transferees and allottees of commercial plots bearing
No.LSC-01, LSC-02, LSC-03, LSC-04, LSC-05, LSC-06, LSC-07, LSC-08, LSC-09,
LSC-10, LSC-11, LSC-12, LSC-13, LSC-14, LSC-15, LSC-16, LSC-17, LSC-18 situated
at ST-3, Sector 05, Orangi Town, Karachi. Annexed to the application is a
photocopy of a purported Part Plan showing that several plots have been created
on the land, which the petitioners claim to be a parking lot. The plan, it
seems, was purportedly prepared in the year 1970. The number of the purported part
plan is P.B-28/76.
In their counter
affidavit, KMC has categorically stated that the land in question was reserved
for parking.
Today Mr. Sultan
Ahmed Advocate has submitted a statement alongwith a photocopy of the
original/genuine part plan of the area in question, which clearly shows that,
as claimed by the petitioners, the land, across 20 feet wide pedestrian way in
front of the petitioners plots/ shops, has been reserved for parking and
numbered as ST-3. The part plan bears drawing No.PB-28/74 and is dated
10.08.70.
Mr. Sultan Ahmed
learned counsel for KMC submits that, as evident from the above part plan, the
land in question is in fact, a parking lot and the purported part plan relied
upon by the proposed interveners is a forged and fabricated document. Mr.
Sultan Ahmed further submits that Town Planner at the relevant time being Mr. Sabahat Ali Khan has signed
part plan as annexed with his statement, whereas, his signatures have been
forged on the plan relied upon by the proposed interveners. Learned counsel
refers to the Drawing number in the plan annexed to the statement being PB-28/74,
whereas the date as mentioned in the said plan is 10.08.70 whereas the Drawing
number as mentioned on the purported plan relied upon by the proposed
interveners is P.B-28/76 and the date of the document is mentioned as 18.09.70,
and the date below the signatures of the Assistant Town Planner is 18.09.1976.
Learned counsel submits that on the one hand, the purported document is shown
to be of August 1970 and on the other hand, the signatures appended thereon
bears 18.9.76, as the date. He submits that this discrepancy alone clearly
shows that the document is forged and bogus one. Learned counsel further
submits that applicants/proposed interveners claim ownership of the land in
question, but neither have they filed any allotment order nor any other
document to show that the land/ plots in fact were purchased by them or
anybody, who may be their predecessor-in-title, although they have not
disclosed as to whether they were allotted the land directly or have purchased the
same from some allottees. Mr. Sultan Ahmed further submits that right from the
inception, commercial plots have never been allotted without open public
auction. He submits that neither the applicants have claimed that the plots
were auctioned nor have disclosed any date of such auction. Mr. Sultan Ahmed in
order to show that the purported part plan does not form part of the relevant
record pertaining to the area in question has referred to the list of various
files/ records maintained by the Respondents which though mentions revised part
plan in respect of plots/ lands, but does not mere mention of the purported
part plan. They have also not filed any document pertaining to the auction of
the land in question.
When confronted with
the above, the learned counsel for the applicant/proposed interveners submits
that he cannot say anything beyond the applicants’ claim that they are
transferees and does not possess any document other than the transfer letters.
Mr. Sultan Ahmed
submits that even the transfer letters are forged and bogus documents.
Be that as it may,
since firstly as noted above, the purported part plan relied upon by the
applicants/proposed interveners for their claim that the land in question is
not a parking lot and in fact comprises of commercial plots, as shown by Mr.
Sultan Ahmed is a forged and manipulated document and even otherwise status of
any land designated for a certain amenity cannot be changed and secondly, the
applicants/proposed interveners have miserably failed to explain as to how and
through what means and in what manner they have acquired the plots, they have
simply filed photocopies of certain transfer letters without any other
supporting document as discussed above, we, have no other option but to declare
the land in question as a parking lot and the proposed interveners’ claim as
bogus and unfounded.
The petition
alongwith pending applications stands disposed of in the foregoing terms with
directions to the relevant authorities to remove whatever encroachments have
been created on the land in question and to ensure that no encroachment takes
place in future also. The Administrator KMC is directed to conduct an enquiry
and find out as to whether the transfer letters in question have in fact been
issued by KMC/KDA and if so, as to which of its functionaries are involved in
such dishonest and illegal act and initiate appropriate departmental action
against them. Criminal proceedings may also be initiated against all those found
responsible for the above.
JUDGE
JUDGE
wsim ps