NIAMATULLAH KHAN Versus FEDERATION OF PAKISTAN
This matter involves various miscellaneous applications concerning urban encroachment, the protection of public amenity plots, and the management of public utilities in Karachi. The core legal questions address the legality of commercial encroachments on public land, the unauthorized alienation of Pakistan Railways' property, and the failure of public authorities to ensure essential service delivery. The Court held that all interim stay orders regarding encroachment suits on Gujjar and Orangi Nalas are vacated, mandating the clearance of these lands. It ordered the immediate demolition of commercial structures within public parks, including Aladin Park and Kidney Hill Park, directing their restoration for public use. Furthermore, the Court established that Pakistan Railways' land cannot be sold, leased, or transferred to private entities and must be reserved strictly for operational purposes. The judgment underscores the principle that public amenity lands and state assets must be preserved for their designated functions, with the state bearing an affirmative duty to ensure efficient administration and the protection of public interests against commercial exploitation.
- Can public amenity plots, such as parks and playgrounds, be converted for commercial use?
- Is the sale, lease, or transfer of Pakistan Railways' land to private individuals or entities permissible?
- Does the Supreme Court have the authority to vacate interim stay orders granted by an Anti-Encroachment Tribunal?
- What is the scope of the state's obligation regarding the management and operational integrity of Pakistan Railways?
ORDER
GULZAR AHMED, C.J.---
CMAs. Nos. 441-K and 549-K of 2021:
We have heard the learned counsel for the parties. For reasons to be recorded separately C.M.No.549-K of 2021 is dismissed.
2. All interim stay/injunction and status quo orders passed by the Anti-Encroachment Tribunal, Karachi in suits filed before it, respecting Gujjar Nala and Orangi Nala are hereby vacated/recalled and the very suits in which such orders have been `passed, stand disposed of. The Government of Sindh, NDMA and the Administrator, KMC shall ensure that all lands of both the Nalas and right of way are cleared and the occupants of the land are suitably compensated and rehabilitated. Adjourned for 16.06.2021.
C.M.A. No. 627-K of 2020:
3. None present. Dismissed for non-prosecution.
C.M.A. No. 671-K of 2020:
4. We have heard the applicant, in person, who is unable to satisfy us as to what right he has to make the application. Dismissed.
C.M.A. No.672-K of 2020:
5. Heard the applicant. No ground to maintain the application is made out. Dismissed.
C.M.A. No.586-K of 2021:
6. We have heard the applicant, in person, who is unable to satisfy us as to what right he has to make the application. Dismissed.
C.M.As. Nos.625-K and 576-K of 2021:
7. Mr. Munir A. Malik is stated to be in USA and is also on general adjournment. Mr. Salah-ud-Din, learned ASC, requests for an adjournment. Adjourned for 16.06.2021.
C.M.A. No.964-K of 2019:
8. We have heard the applicant who appeared in person. No case is made out. The application is dismissed.
C.M.A. No.74-K of 2020:
9. This application is with regard to providing of parking space for the Advocates and litigants, who come to High Court of Sindh, Karachi. As there is serious issue regarding availability of parking space, both Mr. Salah-ud-Din Ahmed, learned ASC and Mr. Omer Soomro, ASC shall sit down with the learned Advocate General, Sindh and try to sort out the issue in a most amicable way and at the same time, resolving the issue of parking. Adjourned to next Session.
Cr. M.A. No.199-K of 2018:
10. The learned counsel states that this application has been filed with regard to the National Museum Building, situated at the Burps Garden, Karachi. He states that this very purpose of the application has been achieved in terms of order of this Court dated 11.12.2018. Disposed of as such.
C.M.A. No. 86-K of 2020:
11. The Director General, KDA is directed to file a comprehensive report of his own regarding the plots alleged to have been allotted on the land retrieved from the Sea near Boat Basin, said to be numbering from COM-1, COM-4, COM-5, etc. Such report of the Director General, KDA shall be filed before the next date of hearing and he shall appear before the Court on 16.06.2021. He should also file the original plan of KDA regarding Clifton and Kehkashan Scheme. Construction activities on these plots are stayed. Notice be issued to purported owners of these plots for 16.06.2021.
Cr1. O.P. 8-K of 2021, etc. (Kidney Hill Park):
12. The Commissioner, Karachi is directed to implement the ant Court orders regarding removal of encroachments, of whatsoever nature, from the Kidney Hill Park. In case the Commissioner, Karachi fails to comply with the orders of Court, the Court will be constrained to pass coercive order. Adjourned for 16.06.2021.
Crl. M.A. 229-K of 2018:
KDA Officers Sport Cum Recreation Centre
13. The Administrator, KMC has been directed to clear all sort of buildings and the building material from the KMC playground situated at Kashmir Road, Karachi. All constructions, except swimming pool and tennis courts, will be removed from the said playground and thereafter, immediate plantation shall be made therein, and it will be opened to public and children for amusement use, for playing and for the purpose of exercise, etc., whenever they want. Appropriate walking track shall also be constructed. Except for security people, no other person shall be available there and no charges shall be made from the public for entering into the grounds. If anybody creates any obstruction for the people and children in entering into the grounds, same shall be considered as defiance of this Court's orders and shall be dealt with accordingly. To come up on 16.06.2021.
Aladin Water Park
14. We are informed that amusement park by the name of Aladin Park, which was established as water park on Rashid Minhas Road, Karachi, has now been converted into a Pavilion Club and shopping centre, where commercial activities are being conducted. The Pavilion Club is a members' club and members are inducted in this club by payment of huge membership fee. This was not the purpose for which the Aladin Park was made Aladin Park should be brought in the same condition and used as was originally planned and all sort of constructions of Pavilion Club and shops, set up for commercial purposes, should immediately be demolished and all Malba (debris) should be removed therefrom. The Administrator, KMC so also Commissioner, Karachi are directed to do so. The Police Department so also the Pakistan Rangers shall provide all assistance to the Administrator, KMC and Commissioner, Karachi for making compliance of the Court's order. The Administrator, KMC and Commissioner, Karachi shall ensure that this very exercise is completed by them within a period of two days. To come up on 16.06.2021 when the report along with photographs will be submitted by the Administrator, KMC and Commissioner, Karachi.
PLOT ST-14
15. It is informed that one Plot ST-14, Block-15, Scheme 16, situated on Rashid Minhas Road adjacent to UBL Cricket Ground is in the process of being encroached and some constrictions work is going on. Senior Director, Anti-Encroachment Cell, KMC is in attendance. He has been directed to ensure that this Plot, which is an amenity plot meant for park purpose, is got vacated from the encroachers and all constructions on plot ST-14 are demolished and removed immediately. The Administrator, KMC and Commissioner, Karachi are directed to ensure that proper park is built on this plot and no part of it is retained by any encroacher nor will it be used for any commercial purpose. Further, proper plantation and laying of grass shall immediately be commenced on this plot. A report in this regard be made available to the Court.
C.M.A. 185-K of 2020:
16. This application has become infructuous, in view of earlier Court order and is dismissed as such.
C.M.A. No. 423-K of 2021:
17. The matter regarding marriage halls has already been heard and reserved for orders. This application will also be decided along with those cases.
C.M.A. No. 621-K of 2021:
18. The Director General, FWO is not present. Let compliance be made by the Director General, FWO. Adjourned to 16.06.2021.
C.M.A. No.15-K of 2021:
19. There is a request on behalf of Mr. Raza Rabbani, ASC. Adjourned for 16.06.2021.
C.M.As. Nos. 446-K and 426-K of 2021:
20. Mr. Abid Zuberi, ASC requests that these applications may also be adjourned to be heard along with C.M.A. No.15-K of 2021. Adjourned for 16.06.2021.
C.M.As. Nos. 277-K and 278-K of 2021
21. Learned counsel for the applicant has informed that some meeting in the Governor House, Karachi has taken place, where the matter relating to the lands of Pakistan Railway, particularly in Province of Sindh has been discussed to be sold to the private developers.
22. We may note that in the one place Pakistan Railways is filing cases before various courts in the province of Sindh, including this Court, for obtaining of orders for vacation and retrieving of Railways' lands from encroachers, unauthorized occupants, illegal allottees and illegal lessees for Railways operational purposes. but on the other hand, the Pakistan Railways seems to be evolving some mechanism, by which the Railways' lands are planned to be doled out. Not an inch of Railways' land shall be sold, transferred. leased or by any means, given to any private person or to any of its employees. All Railways' land is required to be used for Railways' operational purposes and for no other purpose. We, therefore, direct that no Railways' land shall be sold by the Pakistan Railways or transferred, leased or allowed to be occupied by any person and shall be used only for Railways' operation purposes.
23. Learned Attorney General is present in Court has been put on notice to seek instructions from the Federation about the running of affairs of Pakistan Railways, more particularly, in the light of accidents, which are taking place every now and then, in which huge loss of life is incurred.
24. We are informed that Pakistan Railways' tracks from Khanpur to Kotri and from Sukkur Division to Karachi are altogether unserviceable and dangerous for the operation of Railways and until it is refurbished by new tracks, new surveillance system and other new infrastructure, the operation of Railways on these tracks will always remain under threat of major accidents. We also note that very functionality of the Pakistan Railways is not in a professional hands, rather is being operated by questionable officials, who have no capacity, capability or will to run the Railways and marred by corruption, making the operations of the Pakistan Railways altogether impossible. This state of affairs in Pakistan Railways prevailing from top to bottom and despite orders passed by this Court, nothing seems to have been done by the Federal Government. It is high time for the Federal Government to immediately look into the affairs of Pakistan Railways. Eventually, the Federal Government should immediately' get rid of all officials of Pakistan Railways, from top to bottom, who are incapable of delivering the services to Pakistan Railways and providing safe, secure and dignified travel to the people.
25. The Federal Minister of Pakistan Railways, after the train incident at Ghotki, has also made irresponsible statement, in that, he has stated that he will resign if the lives lost in the incident are resurrected. This is a mocking of people by the Railways' Minister, which is not expected from a person holding such a responsible position. The Minister of Railways so also the Secretary Railways and the Administration of Railways is directed to immediately refurbish the Railways track from Khanpur to Kotri and from Sukkur Division to Karachi by laying new tracks, new signalling system and providing all new infrastructure, and this positively has to be done with no amount of slackness. The Federal Government should also immediately step in for overhauling the Railways' administration. Learned Attorney General for Pakistan, who is present in Court, has been asked to seek instructions from the Federal Government addressing all the above issues and provide to the Court interim report on 16.06.2021.
C.M. Appeal No.37 of 2021:
26. Adjourned for 16.06.2021.
C.M. Appeal No.38 of 2021:
27. The applicant has appeared in person. She does not press this application as she has been asked to contact the Advocate General, Sindh, for redressal of her grievance. Disposed.
C.M.A. No.941-K of 2020:
28. A copy of this application has been supplied to the Advocate General, Sindh, who seeks time to obtain instructions. The Commissioner, Larkana as well as the Deputy Commissioner, Jacobabad as well as Ijaz Jakhrani, Sajjad Jakhrani, Aslam Abro and Riaz Jakhrani of Jacobabad, shall appear before the Court on 16.06.2021. The DPO, Jacobabad, shall ensure that all these persons make their presence before the Court.
C.M.A. No.770-K of 2020:
K-EElectric
29. Notice to the Chief Executive Officer of K. Electric for 16.06.2021.
30. The matter regarding the supply of water has been taken up. The CEO, Cantonment Board so also the Managing Director, Water Board, states that neither the Cantonment Board is able to supply water to the residents of the Cantonment Board in Karachi nor the Water Board is able to supply water to the residents of Karachi. On the other hand, what we see is that water business by way of supplying through tankers is going on and huge money is charged from the residents of Karachi for supply of water to them by the water tankers. These water tankers take their water from the supply lines of the Water Board itself. Even in Cantonment areas and DHA, there is no supply of water to the residents and thereto water is being supplied through the water tankers. The reason given by the officials of the Cantonment Board is that the Cantonment Board is not getting its share of water from the Water Board, as was agreed in 1999 i.e. 9 Million Gallons per Day (MGD).
31. Be that as it may, there is ample supply of water made to the Karachi i.e. 450 MGD from Indus River/Keenjhar Lake and 100 MGD from Hub Dam. The Managing Director, Water Board, states that there is a need of 1200 MGD in Karachi and K-4 project has been initiated since 2007 from which additional supply of 650 MGD will be made to Karachi and on phase-1 of this project Rs.25 billion was approved, out of which Rs.11 billion have been spent and now the project has been taken over by WAPDA on the intervention of Federal Government. Let the Chairman, WAPDA as well as Project Director, K-4, shall appear before the Court and give a report regarding the status of K-4. Adjourned to 16.06.2021. Notice be issued to the Chairman WAPDA as well as Project Director, K-4 today.
32. Rest of the matters are adjourned for 16.06.2021.
MWA/N-18/SC Order accordingly.