IN THE HIGH COURT OF SINDH AT KARACHI

C.P.NO.D-5129/2013

Present:

Mr. Justice Aqeel Ahmed Abbasi.

Mr. Justice Muhammad Junaid Ghaffar

Syed Tariq Ali Shah --------------------------------------------------Petitioner

Versus

Malik Riaz and others ----------------------------------------------Respondents

Date of hearing: 11-11-2014

Petitioner: Through Mr. Umer Farooq Khan, Advocate

O R D E R

MUHAMMAD JUNAID GHAFFAR, J:- Through instant petition, the petitioner has prayed as follows:-

1. It is most respectfully prayed that Respondents No.1, 2, and 3 may be restrained not to construct a 70 storied multi-rise building adjacent to the Mazar of Abdullah Shah Ghazi for whom the people of Sindh have great respect and people of Pakistan have also a great respect.

2. The permission for construction of two Cinema Houses, Club and 5-Star Hotels may graciously be cancelled.

3. The Respondents No.4, 5, 6 and 15 may be restrained not to give any water, electricity and Sui gas to the I-con Complex situated adjacent to the Mazar of Abdullah Shah Ghazi, the Great Saint of Pakistan.

4. To direct the Respondent No.9, 10, 11 and 12 to enquire and investigate the legality of the Project and the legality of sale deed/lease deed acquired by the respondents No.1,2, and 3 in respect of I-Con Project.

5. To pass any such other order, orders which this Hon’ble Court may deem, think, fit and property under the circumstances of the case.

2. Petitioner, who claims to be the Chairman of Senior Citizens Welfare Association, through instant petition has challenged the construction of a High-rise building, being constructed by the Respondents No.1, 2, and 3 by alleging that the same is being done on a piece of land, which has not been acquired by the said respondents in accordance with law, and further, that the said land is situated just next to the Shrine of Abdullah Shah Ghazi (R.A) and raising of such construction would annoy the disciples of Late Abdullah Shah Ghazi (R.A.).

3. Mr. Umer Farooq Khan, learned Counsel appearing on behalf of the petitioner contended that the said construction is being carried on without obtaining any permission from the relevant authorities and such construction of a High-rise building, if allowed to be continued would amount to great disrespect to the shrine of Abdullah Shah Ghazi (R.A), which may cause annoyance to his followers. Learned Counsel further contended that the Respondents No.1, 2, and 3 also intend to construct 5-Star Hotel with Cinema Houses which may exhibit films and movies, whereas, a Club is also being constructed and such activities, if allowed to be carried on, the same may also be a cause of annoyance amongst the disciples of late Abdullah Shah Ghazi.

4. We have heard the learned Counsel and perused the contents of the petition filed on behalf of an Association through its Chairman. On examination of the same it is noted that instant petition has been filed by the Chairman of Senior Citizens Association, whereas, no byelaws or Articles and Memorandum of Association or any other authority or document of whatsoever nature has been annexed with the instant petition, so as to enable this Court to see the locus standi of the petitioner Association to file instant petition with such relief(s) as stated hereinabove. On a query by this Court in this regard, the leaned Counsel for the petitioner could not give any satisfactory reply. In a more or less similar situation a Division Bench of this Court in the case of Universal Welfare Organization through General Secretary Versus Muhammad Sabir and another reported in 2014 MLD 882 has been pleased to dismiss the petition on the ground of its non-maintainability, even though the byelaws of the Association were filed along with the petition, but such byelaws did not specify any aim or object of the Association with regard to filing of the said petition. It has been observed by the Division Bench in the above judgment that various Associations are filing petitions before this Court, especially in Building and Construction matters, without having any such authority being available in the aims and objects of the Associations. Such practice needs to be curbed by the Courts, as it has increased the amount of frivolous and unnecessary litigation at the cost of serious and genuine litigants. The relevant finding of the learned Division Bench is as follows;

“It is not open to any member or members of the society or indeed even for all the members for the time being, to, in effect, toss aside the stated goals and objects and go off after what, in law, would be regarded as an extraneous goal, no matter how noble and desirable that objective may be. This, in our view, is a fundamental principle of the law relating to organizations, and is part of the substantive law applicable to them. With respect, we find ourselves unable to accept learned counsel’s invitation to cast it aside, no matter how worthy the result sought to be achieved through the present petition may appear to be”.

5. Insofar as the allegations with regard to the alleged unlawful or illegal occupation of the land and the construction being raised on the said Plot is concerned, again no documents of whatsoever nature, have been annexed with the instant petition, in support of such allegations by the petitioner. Learned Counsel appearing on behalf of the petitioner could not give any satisfactory reply and even during the arguments could not bring or place on record before this Court any supporting documents, which could be looked into, as to the veracity of such bald allegations. Learned Counsel was also put to notice to satisfy the Court as to the maintainability of the instant petition and further to explain the delay / latches in filing instant petition, as apparently the project, against which the instant petition has been filed, is now in its completion stage, however, no satisfactory response was furnished in this regard. Learned Counsel for the petitioner was also confronted as to how, the National Accountability Bureau (NAB) has been arrayed alongwith several other respondents including FIA, Anti-Corruption and Police Authorities, in the instant petition, whereas no relief has been sought against such respondents. However, once again the learned Counsel for the petitioner could not come up with any satisfactory response.

6. It may be noted that the jurisdiction vested in this Court under Article 199 of the Constitution of Pakistan, 1973, is discretionary in nature and can only be exercised in favor of an aggrieved person, once it is established before the Court, that refusal to exercise such discretion would seriously prejudice the aggrieved person and the grievance of the aggrieved person cannot be redressed in any other manner. In the instant matter, we have not been able to persuade ourselves or to arrive at a conclusion, that any substantial question of law has been raised before us, rather disputed questions of facts without any corroborating material and /or evidence have been raised, which are merely assertions of the petitioner for which a probe and or detailed investigation is required, which we cannot enter into in writ jurisdiction. The petitioner’s contention is based merely on apprehension with regard to future use of the project under construction without any substantial evidence, rather no evidence, as the petitioner has failed to file or annex any documents whatsoever, to substantiate such apprehension. It is further observed that instant petition has been filed at a very belated stage, as it appears that the property in question is now in its completion stage and any objection raised with regard to any alleged violation of law, cannot be looked into by this Court at this stage. The learned Counsel while confronted with the maintainability of instant petition specially as to the nature of the petition whereby multiple grounds and declarations have been sought, and various unnecessary parties have been impleaded as respondents, could not satisfactorily respond to such query of the Court. In our view instant petition prima facie appears to be motivated and based on surmises and conjectures, which this Court cannot look into in its Constitutional jurisdiction. The petitioner is primarily seeking declaration against private persons, who have launched the subject project, however nothing has been brought on record in this regard as to whether the said project has been launched without any approval or in violation of any law, and has rather sought further probe and investigation in the matter through instant petition.

7. In view of hereinabove facts and circumstances, we did not find any substance in the instant petition which was accordingly dismissed in limine along with listed application(s) vide our short order dated 11.11.2014 and these are the reasons for such short order.

JUDGE

Talib