NIAMATULLAH KHAN Versus FEDERATION OF PAKISTAN

ORDER

GULZAR AHMED, C.J.---

Nasla Tower (Reports Nos.129-K, 131-K and 140-K of 2021)

The Commissioner, Karachi has submitted a Report No.140-K of 2021, regarding the demolition of Nasla Tower. The report is dated 03.12.2021. In the last para of the report the Commissioner, Karachi has made a following statement:-

"SBCA tried to stop demolition on various pretexts, which were not plausible. They were not ready to give their reservations in writing. They kept threatening the contractor and instill fear among labour. They allegedly demanded bribe from the contractor. They did not allow operation of Jackhammer WT-15 Tons on various occasions claiming it would dismantle the building."

2. This statement shows that Sindh Building Control Authority (SBCA) has tried to obstruct the implementation of the Court's orders dated 24.11.2021 and 26.11.2021 and apparently committed itself in a manner which amounts to defiance of the Court's orders, which attracts the provision of Article 204 of the Constitution read with relevant provisions of the Contempt of Court Ordinance, 2003.

3. The Director General, SBCA is in attendance. He has been confronted with the above statement of the Commissioner, Karachi. He states that such a statement of the Commissioner, Karachi is not correct.

4. Be that as it may, as there is a written proof of the fact that the SBCA has tried to defy of the Court's orders, noted above, as such it has made itself liable to be proceeded for commission of Contempt of Court and accordingly, the Director General, SBCA who is in attendance is issued notice as to why contempt proceedings should not be initiated against him for he being the official head of SBCA apparently is liable for the conduct of SBCA. The D.G., SBCA shall file reply in one week.

5. It is also alleged in the above para of the report of the Commissioner, Karachi that SBCA has also demanded bribe from the contractor, undertaking the work of demolition of Nasla Tower. In the circumstances, let the Chairman Enquiries and Anti-Corruption Establishment, Karachi register an FIR against the Director General, SBCA and also against all other officials of SBCA who have illegally conducted themselves in this regard proceed against them in accordance with law. The Chairman Enquiries and Anti-Corruption Establishment shall put up his report in one week before the Court regarding the action taken by him in this regard.

6. The Commissioner, Karachi present in Court, states that the work of demolition of Nasla Tower is going on. He states that five floors from upside down have already been demolished while remaining work is going on and the remaining building will also be demolished at an early date.

7. We expect that the work of demolition of the building shall be achieved by the Commissioner, Karachi within further one week's time and in this regard report shall be submitted by the Commissioner, Karachi to the Court. The Commissioner, Karachi should utilize all available resources of the Government, in order to comply with the Court's orders, noted above. No amount of laxity shall be allowed and if any is found the Commissioner, Karachi shall himself, be liable to be proceeded against by this Court.

8. During the course of proceedings, it was brought to the notice of the Court that the purported allottees of Nasla Tower have been left without any source from which they could be compensated and the owner/builder is not coming forward to make payment/compensation to the purported allottees. The purported allottees entitled to the payment/compensation is required to be protected and the only source available is the very Plot No.193-A, SMCH Society measuring 780 square yards is attached and the Official Assignee appointed to secure the said plot and not to allow any person to enter upon the same and also to inform all relevant offices about the attachment of the plot. The Official Assignee shall ensure that no person enters on the said plot except the persons, who are engaged in demolition work of the building. On completion of demolition the Official Assignee shall ensure that proper securing of the plot and put a board notifying its attachment by the Court.

9. We have already declared that Nasla Tower was illegally constructed vide order dated 16.06.2021. Pursuant to this order, the Court has passed further orders for demolition of Nasla Tower. Obviously, as stated before us the Nasla Tower was built after obtaining approval from the SBCA and other relevant departments, including the Sindh Muslim Cooporative Housing Society. The owner of the building and the builder and all the officials of the SBCA and other government departments, including SMCH are liable to be prosecuted for approving and allowing of illegal construction of Nasla Tower. In the first place these persons are prima facie guilty of the commission of offence under various provisions of the Pakistan Penal Code and they are liable to be proceeded against. An FIR against them is required to be registered.

10. The Deputy Inspector General of Police, East (DIG) is directed to ensure that FIR is registered against all the above noted persons and they are proceeded against in accordance with law. The DIG shall submit his report before the Court within one week noting down the action taken against the persons involved in the matter. At the same time the Chairman Enquiries and Anti-Corruption Establishment shall also register the case against the officials of SBCA and all other government departments, who have indulged, connived and abated in granting of approval for construction of Nasla Tower as such building was allowed to be constructed in gross violation of law and each and every officials of SBCA and other government departments involved in the affairs should be proceeded against by the Enquiries and Anti-Corruption Establishment. The officials of the SBCA and other government departments so involved shall also be proceeded departmentally and strict action be taken against them, after complying with all codal formalities. The Chairman Enquiries and Anti-Corruption Establishment, Karachi shall put up a report in one week describing the action taken by him. The D.G., SBCA so also the Heads of other government departments whose officials have conducted themselves wrongly shall also put up their reports showing the action taken by them against the respective officials of their respective departments.

Tejori Heights (Report No.133-K of 2021)

11. It seems that main structure of Tejori Heights has been demolished and now basement and foundation has to be removed. The builder has originally undertaken the demolition of the building but from the report submitted today before the Court, it seems that the structure of basement and foundation has not been removed as yet. The Commissioner, Karachi states that if he is given the permission to demolish and remove the basement and foundation, he will carry out the same.

12. In the circumstances, where the builder seems to be reluctant in removing the basement and foundation of the building, the Commissioner, Karachi is directed to demolish and remove the basement of the building as well as the foundation. The cost of such demolition and removal of debris incurred by the Commissioner, Karachi shall be paid by the builder and in case the builder defaults in making of payment, the Commissioner, Karachi shall submit a report before the Court and Court shall make appropriate orders in this regard.

13. The builder shall provide funds in the sum of Rs.2.5 million to the Commissioner, Karachi upfront within two days. The Commissioner, Karachi shall put up a report and such report shall be made available to the Court in one week's time. The Commissioner, Karachi shall give proper account about the cost incurred by him regarding the work performed at the building site.

Gutter Baghicha (Report Nos.128-K and 135-K of 2021)

14. The Administrator, KMC, has been appearing in this case and instead of assisting the Court on each occasion, he has tried to make a political statement. We have time and again warned him not to do so but he keeps on deviating from the work of the Administrator to that of going into the realm of politics and agitate his political party's issues before the Court. Such we believe, that the Administrator, KMC has to be a person who has to conduct himself in a manner where the work of the people are handled and conducted in a neutral way and not on political basis. Incidentally, we find that the Administrator, KMC, could not disconnect himself from his own political party to which he belongs and comes up with the political statements which apparently, are not allowing him to perform his functions in a neutral manner, which is required by his Office. Today also, he has deviated from his task of doing the work of an Administrator and making statements and saying things before the Court, as if he is representing the case of a political party. This state of affairs could not be allowed to take place and the Administrator seems to be totally acting more like a politician than an Administrator, which is the job, requiring him to perform for the good of the people, particularly of the City of Karachi. He has showed anger in Court, which is totally unbecoming of an Administrator. He is not a fit person to remain as an Administrator of KMC. In the circumstances, we direct the Chief Minister, Government of Sindh to remove him from the post of the Administrator, KMC immediately and to appoint a fit person who is capable to deliver the people as an Administrator of the City of Karachi.

15. We have noted that some about 200 acres of land of Gutter Baghicha, which is the land meant for park for the City of Karachi has been allotted to KMC Officers Cooperative Housing Society. The Chairman, KMC Officers Cooperative Housing Society has appeared before the Court and we have heard him. There is no dispute at all that the land of Gutter Baghicha is meant for park and it comprises of 1016 acres of land and it seems that not only the KMC has allotted 200 acres out of such land to its officers, a big portion of the land is encroached upon some industries have also occupied the land of Gutter Baghicha. The whole Gutter Baghicha land has to be retrieved as it is an amenity plot and meant for the park. We are informed that on the said land there are following installations:

1) KDA Treatment Plant TP-1;

2) Incinerator Plant;

3) A Pumping Station; and

4) Various Graveyards.

16. The Administrator has sincerely apologized for his conduct and states that he will not repeat his such conduct before the Court nor before any other forum or people for whom he has been appointed as an Administrator and that he will conduct his office independently free from political interference and whole of his interest will be to ensure that he serves the people of city of Karachi without being influenced by politics or his affiliation with a political party. We emphasize that the office held by the Administrator is a trust, which the people have reposed in him and he has to discharge his duties in a neutral manner as he can without being influenced at all by any political affiliation whatsoever. The function is to serve the people and not any individual. We therefore, on showing of remorse by the Administrator, recall our order of asking the Chief Minister to remove him from the office and to appoint some other person in his place as an Administrator of the city of Karachi.

17. In the matter regarding Guttar Baghicha, at the outset the Administrator states that he will ensure that there is an urban forest planted in 168 acres of Guttar Baghicha land and he also gives a timeline that plantation will start in the month of March, 2022 for developing an urban forest. In respect of the KMC Officers Cooperative Housing Society, who claims that it has been allotted 200 acres of land from Guttar Baghicha, the Chairman of the Society is present and requests that he may be allowed to engage a counsel to plead the case before the Court.

18. Adjourned for tomorrow i.e. 28.12.2021.

Report No.137-K of 2021

19. It looks that 38 acres, including 17 acres of land comprising of old Sabzi Mandi, Karachi was apparently given to the Headquarters Engineers-5 Corps, Liaquat Barracks, Karachi for maintaining it as a park. The agreement attached with the statement shows that it has no date. Even the land and its measurement is not mentioned nor the site plan of the land is attached with the agreement.

20. C.M.A. No.1087-K of 2021 was filed before this Court by one Naveed Ahmed Khan, Chairman of Human Rights Protection International, claiming illegal usage of the land of the park for commercial activities in violation of Adaption Agreement. It is pointed out in the application that in the park commercial activities are being undertaken comprising of market having shops and Marriage Halls. Report No. 137-K of 2021 has been filed by the Deputy Director, Head Quarters, Land Department, KMC, where it is specifically mentioned that the park shall be a public park meant for public recreation and it is also liable to be resumed by the then City District Government, Karachi, presently the Administrator, KMC.

21. C.M.A. No.1238-K/2021 has also been filed on behalf of Headquarters Engineers-5 Corps, Karachi Chaudhry Muhammad Iqbal, learned counsel was appeared and stated that C.M.A. No.1238-K of 2021 has filed on instructions of Lt. Col. Zubair. The C.M.A. shows that for generation of revenue, food court, snake bars, parking/entrance fee and children rides have been established in the park and one Marriage Hall was also created, which as stated in the application, has now been stopped. Further, it is noted that on the order of this Court open space previously used for different outdoor gatherings/functions have been restored to the green park and is open for public for their recreation and enjoyment. It is also stated in the application that there are 88 shops but the Army has nothing to do with it, neither they have been constructed by the Army nor the Army claims ownership over the said shops/market. It is also stated that currently no business activity is being undertaken in the shops and they are lying vacant. It is also mentioned in the application that the Court may decide its fate as deems appropriate as the shops are closed on the orders of City District Government, Karachi. In Para-8 of the application, it is specifically stated that the park land is the property of CDGK/KMC. We note that the very agreement contains clause where the park land can be resumed by the CDGK/KMC. The Administrator, KMC states that the park needs to be resumed by KMC and maintained by it and KMC shall ensure that the park is fully kept and maintained for public use and no charges are put on the people for using the same. All activities, like that of holding of functions outdoor or indoor, Marriage Halls in the park shall immediately be stopped and, if any, construction in this regard has been made, such construction shall be removed by KMC. The 88 shops which are stated to be built on the land of the park shall also be removed by the KMC. Learned counsel for HQ-5 Corps states that if the KMC wishes to resume the park, the same will be handed over to the KMC. In the circumstances, let the park be handed over to the KMC within two weeks from today, who will ensure that it is run as a park. The application so also report in the above terms stand disposed of.

Report No.139-K of 2021 and C.M.A. No.1142-K of 2021

22. On behalf of PECHS, C.M.A. No.1142-K of 2021 has been filed in response to C.M. Appeal No.16-K of 2021, filed by Haji Abdul Razziq Khan. In report No.130-K of 2021, copy of the Layout Plan of PECHS has been filed. Similar, Layout Plan of PECHS has also been filed by Shehri. The Layout Plan shows that on the main Tariq Road, plot No.AP-30 is shown as a park, while plot No.AP-31 is shown as a Club. The park is known as Dilkusha Park, while the Club is Dilkusha Club. On the plot of the park i.e. AP-30, a huge Mosque appears to have been constructed and it is not known as to how the park land came to be occupied by the Mosque and this aspect needs to be addressed. Let notice be issued to the occupants of the Mosque to appear before the Court by tomorrow i.e. 28.12.2021 and also the Administrator Auqaf, to appear before the Court by tomorrow and explain as to how the park has been converted into a Mosque. As regard, plot No.AP-31, which is shown as a land of the Club, it is stated in the report of the PECHS that this land of the Club which comprises 989.35 square yards has been encroached and some Madaressa has put up its board on it. Shops have also been constructed and PECHS has given them notice to vacate the same but such vacation has not been made by them. The Assistant Commissioner, Ferozabad, Karachi (East) was also requested by PECHS to obtain removal of the encroachment from this plot but no assistance was provided by the Assistant Commissioner. In the circumstances, despite notice, no one has put up appearance on behalf of the occupants of plot No.AP-31. In the circumstances, the Assistant Commissioner, Ferozabad, Karachi (East) is directed to remove all encroachments from plot No.AP-31 shown on the Layout Plan of PECHS as a site of a club and to have it vacated. It seems that the club land is not being used by the club and no one from the side of the club has put up appearance in the Court. The Assistant Commissioner, Ferozabad, Karachi (East) shall ensure that this land on having it vacated from all encroachments is converted into a public park and allowed to be used by the public. Tree plantation and laying of grass shall be undertaken by the said Assistant Commissioner and its cost shall be obtained from the Government funds. This action shall be undertaken by the Assistant Commissioner within one week's time and shall submit the report to this Court that not only the encroachment has been removed but also process of laying a park has also been started and photographs of the same shall also be attached with the report.

C.M. Appeal No.16 of 2021

23. The Assistant Commissioner shall ensure that the park is properly protected and iron grills on its boundary are affixed so that the people can use it safely for their recreation purposes. This C.M. Appeal is disposed of.

24. The matter regarding Jheel Park, Hill Park Land and Kidney Hill shall be taken up tomorrow i.e. 28.12.2021. The Administrator, KMC is also directed to appear before the Court with its report.

C.M.A. No. 1141-K of 2021, C.M.A. No. 1236-K of 2021 in C.M.A. No.941-K of 2020

25. Mr. Khaiid Javed, learned ASC for the Respondents, namely, Muhammad Aslam Abro and Muhammad Akram Abro, requests for adjournment as he states that he could not go through the report, which has been filed by the Deputy Commissioner, Jacobabad in Court today.

26. Adjourned to a date in the next session. Shumail Riaz Malik, Senior Superintendent of Police, Jacobabad, shall ensure that the applicant, namely, Maliha Malik, is allowed safe passage for making appearance before the Court.

C.M.A. No.1161-K of 2021 in C.M.A. No.933-K of 2019

27. Notice to the Administrator, Defence Housing Authority, Karachi, for a date in office during the next session.

C.M.A. No.510-K of 2021

28. Notice to the learned Advocate General, Sindh for next session.

Reports Nos.138-K and 142-K of 2021 in C.M.A. No.773-K of 2021 in C.M.A. No.826-K of 2020, C.M.A. No.1251-K of 2021 in C.M.A. No.522-K of 2020

29. The above-mentioned cases are adjourned for tomorrow i.e. 28.12.2021.

MWA/N-20/SC Order accordingly.