ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD.

C.P.NO.S-878 of 2014

DATE ORDER WITH SIGNATURE OF JUDGE

Date of hearing: 23.01.2015

Date of order: 25.02.2015

Mr. Shaikh Muhammad Yousuf Khatri, Advocate for petitioner.

Mr. Ishrat Lohar, Adovcate for Deputy Commissioner, Hyderabad.

Syed Ghulam Nabi Shah, Advocate for Secretary, Land Utilization Department.

Mr. Ashfaque Nabi Kazi, A.A.G, a/w Mrs. Anita Shah, D.S.C.U Department.

Mr. Attaullah, Additional Deputy Commissioner-1, Hyderabad on behalf of D.C. Hyderabad and ASI Arshad on behalf of SHO PS Airport.

SALAHUDDIN PANHWAR, J:- The back-ground of the instant matter has been that present petitioner, in fact, had approached this court for issuance of direction for lodgment of FIR regarding illegal encroachment / occupation over subject matter i.e a religious place “Kali Maai ka Phera” and grave yard situated within the limits of Police Station Airport, thus in order to preserve the rights of minorities in view of dictum laid down by the apex court in Suo-moto case No.1/2014, the Deputy Commissioner Hyderabad was directed to inspect the site and submit his report. The report was taken on record which pointed out availability of government land measuring 32253-09 acres out of which allotments stood made leaving an area of 20000 acres only. Therefore, the matter was converted into petition for determination of following questions:-

i) determination of ‘Kali Mai ka Phera’ & that of grave-yard;

ii) determination of said to be one falling within meaning of ancient & monument;

iii) disposal of available government land for ‘public purpose’ within directive (s) issued by Honourable Apex Court;

iv) whether allotment of more than 12000 acres land, out of such government land, had been within parameters for such grant or otherwise;

2. Notice(s) were issued to Secretary Land Utilization Department so also to archeology department. The report submitted by the Secretary to Government of Sindh, Land Utilization Department, speaks that an area of 10260-20 acres was allotted for different housing scheme(s) of Societies or cooperative societies so also to others. In addition to this, a letter of the Land Utilization Department dated 11.9.2014, attached, also reflects that an area of 100 acres was allotted to Mr. Amanullah Siyal, Chairman M.S Mehran Co-operative Housing Society Ltd. Hyderabad. The perusal of the letter contains para-3 which reads as under:-

‘It may be stated that the Honourable Supreme Court of Pakistan has imposed complete ban on further transactions in Suo-Moto Case No.16 of 2011 passed on 28.11.2012. However, after lifting of ban of Honourable Supreme Court of Pakistan, till then the same letter may be treated as allotment order and as per also legal opinion of Chairman, Sindh Government Lands Committee vide No.CSGLC/083/2013, dated 28.08.2013 (copy enclosed)’

The above para makes it clear that the Land Utilization Department has been in active knowledge and notice of the pending proceeding before the Honourable Supreme Court of Pakistan and even that of order dated 23.6.2014 passed in Suo Moto Case No16 of 2011 which, for convenience, is reproduced hereunder:-

“We may at this stage clarify that this order staying the allotment / grant of long leases was meant to ensure that the land is not either leased out or allotted for reasons other than bonafide and to land grabbers and this would not prevent the competent authority in the Federal or Government of Sindh to allot or lease out land for a project approved by the concerned authority which directed towards establishment of any industry or automotive plant or power generating plant or any other initiative in public interest and in accordance with law and the relevant rules. The learned Advocate General Sindh shall convey this order to the Chief Secretary and all the provincial secretaries to ensure that the earlier order is not misconstrued and no such project is held up on that account’

3. What appears from the above order of the Honourable Supreme Court of Pakistan that stay order regarding allotment / grant was not lifted but through the above order the Honourable Supreme Court of Pakistan made it clear that ‘the earlier order is not misconstrued’ and earlier order (stay-order) should not be ‘misconstrued’ to delay or refuse legal grant / allotment of ‘no such project’. In other words, the stay order was relaxed for a project approved by the concerned authority, falling within meaning of:

i) establishment of any industry or automotive plant or power generating plant; or

ii)any other initiative in public interest:-

The terms ‘industry’, ‘automotive plant’ or even ‘power generating plant’ need no explanation so does the term ‘public interest’.

4. At this juncture, to show the importance of the term ‘public interest’ and the fact that how jealously the same is to be guarded, I would like to refer the order dated 11.9.2009, passed by the honourable Supreme Court of Pakistan in Suo Moto case No.14 of 2009 that:

“This Court rejected the petition for leave to appeal observing that he acquired these lands by virtue of the said leases. After the rejection of the Petitions for Leave to Appeal that the Court also made another important observation that the petitioner obtained the land grants against all the rules, conditions of allotment under the law, existing ban and also rules of business.”

Thus, it shows that this was meant to make it clear that ‘grants’ were / are made by the ‘authority’ while departing from rules and procedure, therefore, in same order it was further held that:

“No one in authority, whosoever high office such person in authority may be holding, has any power, jurisdiction or discretion to distribute any public property or asset and in these cases extremely valuable lands, on nominal consideration, which land or asset essentially belong to the People of Pakistan. It was patently malafide exercise of power. This Court further ordered that the grants of lands to the petitioner specially in the manner, the same was done are prima facie violative of Article 3 (elimination of exploitation) Article 25 (equality clause) and Article 31 of the Constitution of Islamic Republic of Pakistan which requires the State to endeavour to promote observance of Islamic moral standards and Article 38 of the Constitution which interalia requires the State to secure the well being of the people by preventing concentration of wealth in the hands of a few to the detriment of general interest. The grant of lands to the petitioner in these cases were reprehensible acts on the part of the highest executive authority in the province, totally alien to the concepts of Islam.”

In another case, reported as 2014 SCMR 1611, it was held with regard to manner of exercise of powers by an authority regardless of its status that:

13. Looking at the powers of the Chief Minister for allotment of public property, here a reference to the case of Iqbal Hussain v. Province of Sindh through Secretary, housing and Town Planning Karachi and others (2008 SCMR 105) will be useful wherein this court has observed as under:-

“3. We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in (i) Abdul Haq Indhar v. province of Sindh (2000 SCMR 907 and (ii) Taj Muhammad v. Town Committee (1994 CLC 2214).”

(Underlining has been supplied for emphasis)

From above, following should, no more, be disputed:

i) State land is the public property, which can’t be disposed by Chief Executive of province being custodian, at his wishes.

ii) The authority is meant and believed to act to protect such property which includes disposal of such property at proper market rate/price;

iii) an illegal order, regardless of status of person, passing / issuing it, shall not have binding effect upon subordinate

The above proposition of law, permits me to say that the ‘authority’ is competent to create and generate ‘revenue’ through different modes, including disposal of the ‘State land’, so provided by the Law but such competence and jurisdiction should never be used nor should be allowed to be exercised in an arbitrary manner but must be shown to have been exercised bona-fidely in its true sense, keeping the “public interest’ at its place which is nothing but supreme to all other interests. A disposal of the State land shall not equate the term ‘public interest’ unless a mechanism is resorted to create a competition so as to generate maximum ‘revenue’ which, undoubtedly is expected from every owner (in case of State land the citizens of Pakistan are always believed to be acquiring such ‘status’). The power of the disposal of the government land should remain with competent authority but subject to a mechanism ensuring guarantee to ‘public interest’ and same should not be allowed to be preyed only on joining of hands by two.

5. In above back-ground, pertinent to say that a grant / allotment of government land, if made for housing scheme (s), shall not equate the term ‘public interest’ particularly when it is being made without ‘open auction’ because the ‘housing scheme’ may, undoubtedly, be under the plea to provide shelter to someone but patently the term ‘someone’ cannot equate the term ‘public at large’ hence interest of the ‘public at large’ could only be protected if the maximum ‘revenue’ is generated which, undoubtedly, is believed to be used for interest and betterment of ‘public at large’. The developer may earn money but not at the cost of ‘public interest’ i.e getting value of the government land fixed much less than its due (as was the object of order of Suo Moto case No.14/2009). Thus, the process of allotment of the government land should not start by making an application but should start from wide publication as is mentioned in the para-2 of condition-3 for grant of State Land for non-agricultural purpose, so published vide Notification No.09-294-03/SO-I/336 Karachi 25^th February, 2006 i.e:-

No land shall be disposed of—

(a) for commercial purpose except by open auction at a price not less than the market price;

6. Whereas, the requirement of ‘open auction’ is not attached for disposal of the State Land for other purposes including ‘incremental housing’ or ‘project’, so defined in above referred notification of ‘statement of conditions’ which is completely in negation of dictum laid down by honourable Supreme Court of Pakistan in Suo Moto Case No.14 of 2009 at para-2 with regard to the object of ‘Sindh Urban Land (Cancellation of Allotment, conversions and Exchanges) Ordinance, 2001’ as:

‘In the year 2001, the Sindh Urban Land (Cancellation of Allotment, Conversions and Exchanges) Ordinance, 2001 was promulgated, the purpose of which was to provide for cancellation of certain allotments, conversions or exchanges of urban state land obtained or granted for residential, commercial or industrial purposes at rates lower than the market value, in violation of law or ban from 1st January 1985 and to provide for matters connected therewith are ancillary thereto.

7. It is germane to state that the requirement of ‘open auction’ should have been in all cases of disposal of government / State Land, else the directive(s) of Honourable Supreme Court, issued in above referred case and Articles of the Constitution, dealing with rights of people and equal treatment shall fail. It is not a disputed position that ‘ban’ over allotment of government / State Land is continuing and relaxation has been allowed by Honourable Supreme Court of Pakistan only for specific ‘projects’ and a housing scheme does not, prima facie, appear to be one falling in such exception, therefore, allotment in name of ‘housing scheme’, in existence of ban and of directive (s) of Honourable Apex Court, seems to be a deliberate, pejorative and intentional attempt to deceive the purpose and objective of such ‘ban’ and ‘directives’. Needless to add that any such attempt shall create no binding effect upon the subordinate officials who, being custodian of public rights and interests, are believed to resist the same or least make the position clear to such an ‘authority’ as has been held by Honourable Apex Courts.

8. Let me add a little more that the work of the ‘leasing authority’ does not come to an end by passing on ‘lease or grant’ but since such grant / lease is always in shape of a ‘contract’ hence the authority continues with full and complete responsibility to have a continuous watch to examine whether ‘lessee’ standing well with the purpose and object of the ‘lease / grant’ or otherwise?. This is so, for simple reason that a lease only creates those rights which the contract permits and, in no way, dress the ‘lessee’ up with status of ‘absolute owner’ who is entitled legally to enjoy property as per his wishes. It is not the status of the ‘lessee’ which may be company, person or department even, but it is the object of the lease/grant which matters. The ‘lessee’, regardless of its status, may have a right to create a sub-title but cannot change the object and purpose for which the lease / grant was made, which is to be protected by the ‘lesser’ under all circumstances. The ‘lesser’ (government authority, being custodian of rights and interest of the public) is not supposed to be a silent spectator but is believed to knit a blanket, assuring the subject (people), the guarantees of their rights, interests and claims, under it. This can never be achieved unless the officials starts treating all cases on scale of ‘equity’ and start daring to resist an illegal order, even if, it is passed by the superiors. A breach or an illegality always continues to be a ‘breach / illegality’ and a mere lapse of time shall, in no way, be sufficient to convert an ‘illegality’ into a ‘legality’ hence the Land Utilization Department was/is believed to make it sure that no breach or illegality of grant / lease goes unchecked particularly when the ‘contract’ permits penal action, including cancellation of lease / grant, against the ‘lessee’.

9. Further, report of the Utilization Department, submitted, reveals that there have been made number of allotments / grants, even after 28.11.2012 i.e order passed by honourable Supreme Court of Pakistan in Suo Moto Case No.16 of 2011 and most of them for ‘housing schemes’ and even to individual. Such act shows that such allotments are in negation of order passed by apex Court in Suo Moto No.14/2009, which, otherwise, is of binding effect upon all organs of the State.

10. Accordingly, the Land Utilization Department is directed to enquire in the matters of allotments and un-do all the illegal allotments in respect of State land including the allotments mentioned in report submitted before this Court with compliance report. Such report shall also indicate the steps taken in case of breach / violation of the lease. Compliance report should be placed within two months through Additional Registrar of this Court.

11. Further, the report submitted by Secretary Land Utilization, also shows the ‘remarks’ regarding entry No.8 of VF VII-A (at Sr.No.9 of list of allotted / granted lands, prepared by Mukhtiarkar & Assistant Commissioner Latifabad Taluka) to be ‘Bogus entry’. A Bogus entry is not to be kept in record nor should be allowed to be used to exploit right, title and interest of government land hence where revenue authorities themselves claimed an ‘entry in record of rights’ as ‘bogus’ then same should always be processed to give it its natural fate. Therefore, the Deputy Commissioner is directed to initiate legal process in this respect with further direction to submit the details whether there has been any breach of the allotment or statement of conditions by the ‘lessees’. Such report should reach to this office within a period of one month.

12. The Utilization Department is also directed to strictly follow the directions of honourable Apex Court so also factum of ‘ban’ over allotment of the State Land which be not deceived by disposing of State land even by colouring it as conditional allotment for housing schemes etc, so it appears from allotment of 100 acres to Mr. Amanullah Siyal, Chairman M.S. Mehran Co-operative Housing Society Ltd. Hyderabad despite ‘ban’ and pendency of Suo Moto Case No.16 of 2011. The Land Utilization Department is supposed and believed to strictly work within directives of Honourable Supreme Court of Pakistan hence should not attempt to create its own new room with an object to over-steps such binding directives of Honourable Apex Court.

13. Regarding points no.(i) & (ii), the archeology department reported that ‘Kali Mai Ka Phera’ does not enlisted in protected Heritage / Antiquity under the Antiquities Act 1975 or Sindh Culture Heritage (Preservation) Act-1994 and further reported that no traces of ‘grave-yard’ were found. Here, it is necessary to make clear that Antiquity Act 1975 or Ancient Monument Preservation Act 1904 are not meant to protect only those which are so declared under the relevant law but shall also include other thing, so defined as ‘Ancient’ or ‘Antiquity’, therefore, the archeology department shall revisit the site to find out existence of ‘Kali Mai Ka Phera’ or to report non-existence of any such claimed thing.

14. Since the SHO, PS Airport has submitted the report wherein categorically mentioning that present petitioner had no legal document of ownership hence the petitioner is not entitled to seek direction of lodgment of FIR against encroacher, however, such encroachment, shall be removed by the quarter concerned in accordance with law under intimation to this Court. The Deputy Commissioner shall ensure proper legal measure to remove encroacher (s) from government land but strictly in accordance with law.

15. Office shall send facsimile copy of this judgment to Chief Secretary, Member Board of Revenue, Secretary Land Utilization, Commissioner(s), and Deputy Commissioner(s), all over the Province, for compliance.

The petition stands disposed of in above terms.

JUDGE

A.K