2007 PLP 1823 (YLR)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

Both these petitions are connected together, therefore, are disposed of by consent through this consolidated judgment.

2. The facts giving rise to C.P. No.1171 of 2004 are that the petitioner is a registered Welfare Trust and purchased the amenity Plot bearing No. ST-23/4, Metroville Site Karachi. It was purchased in open auction from the respondent No.1 City District Government Karachi. The land is an amenity plot reserved for education purpose. The petitioner paid 50% price of land to respondent No.1 and remaining 50% had been deposited with the Nazir of this Court. Instead giving possession of the plot to the petitioner the respondent No.1 started constructing hospital on the plot. The petitioner being aggrieved preferred this petition challenging the construction on the plot by respondent No.1 and with further prayer for removal of the encroachment. The petitioners in C.P. D-937 of 2004, who are residents of the locality where the land is situated, have assailed the publication of notice in newspaper for auctioning the plot contending that plot is reserved for education purpose and have prayed that the respondents be directed to entrust the physical possession of the plot to Education Department Government of Sindh for utilizations of the same for the purpose of school and that the respondents be restrained from raising construction on the plot.

3. During pendency of the petitions, the petitioner in C. P. No, D-1171 of 2004and the City District Government Karachi entered into alternative dispute resolution and an offer was given by the respondent No.1 to the petitioner either to get another plot in the same locality admeasuring 4320 Sq. Yds. or to pay construction charges which has been incurred by the City District Government Karachi. Today the petitioner has accepted the offer of paying the cost of the construction incurred by the City District Government Karachi which amounts to Rs.4.181 millions. The petitioner has further submitted that although the plot was purchased for constructing a school thereon but in the changed circumstances when the City District Government Karachi has already started construction of hospital, it would not be feasible to demolish the existing construction and start fresh construction of a school. It has been submitted on behalf of the petitioner that the education and health both fall in the realm of welfare activity and the hospital constructed by petitioner shall be for the welfare of public, and health service shall be provided at the concessional rates to the poor and needy persons.

4. So far the C.P. No.D-937 of 2004 is concerned, the learned counsel for the petitioners has stated in reply to query made by the Courts as to what right they have to make a prayer that the plot be handed over to the Education Department, Government of Sindh, that when the petition was filed the petitioners were not aware that the City District Government has already started construction of hospital on the plot. Learned counsel has stated that petitioner apprehends that after taking over the plot the petitioner in C.P. No.D-1171 of 2004 shall utilize it for commercial purpose i.e. 'construction of market, shops, plaza or any other such purpose. He has stated that he has no objection if plot is utilized for the welfare of public-at-large.

5. In the above circumstances, by consent both the petitions are disposed of in the following terms: (i) The petitioner in C.P. No.1171 of 2004 shall pay an amount of Rs.4.181 million to the City District Government by depositing Pay Order with the Nazir of this Court within 90 days from today. (ii) After deposit of the Pay Order with Nazir as above, the City District Government Karachi shall hand over the physical possession of plot and existing construction thereon to the petitioner in C.P. No.D-1171 of 2004 within one month.? (iii) The petitioner in C.P. 'No.D-1171 of 2004 shall submit the Building Plan for the proposed hospital with KBCA, a department of the City District Government Karachi and KBCA shall approve the building plan for the construction of hospital in accordance with law and rules in that behalf. (iv) KBCA shall complete the scrutiny and approve the building plan within two months of submission of the building plan by the petitioner with KBCA. (v) The petitioner shall construct the hospital building only and shall run hospital on welfare basis, specially providing concessional services to the poor and needy persons and shall not utilize any part of the land for the construction of any shops, market, plaza or any other commercial purpose except the construction of pharmacy or canteen or any other allied and incidental purpose connected with the hospital. (vi) The contractor who has raised existing construction shall be at liberty to remove the room of the Chowkidar and the material lying at the plot within one month. The petitioner respondents and any other person acting on their behalf or under them shall not create any hurdle in removal of the said material. (vii) If contractors has suffered any actual loss on account of any fault on the part of City District Government Karachi the contractor shall be at liberty to claim the same from the City District Government strictly in accordance with law. (viii) The City District Government is entitled to withdraw the amount of 50% of the auction money deposited with the Nazir of this Court, as well as the amount of Rs.4.181 millions to be deposited by the petitioner after handing over the physical possession of plot to the petitioners.

6. All the interlocutory applicants pending in both the petitions have been rendered infructuous and stand disposed of accordingly. H. B. T. /M-59/K???????????????????????????????????????????????????????????????????????????????? Order accordingly.