2004 PLP 1287 (CLC)

In these revisions the issues, inter alia, raised required consideration was whether Bhawanmal, the respondent (deceased) who is shown to have been the permanent tenant of Kotri Municipality in respect of plot which in fact was portion of footpath of Shahrah‑e‑Liaquat Road, Kotri, could be rented out the portion of the footpath by the Municipality and, whether Bhawanmal in turn can sublet such footpath to the applicant. The applicant on the other hand, claims to have possessory right on the portion of said footpath and had sought direction against Kotri Municipality to rent him out the said portion. During the hearing of the matters it was found necessary to examine the Municipal record in order to ascertain as to whether the deceased Bhawanmal was permanent tenant or not and whether witness Maqbool Ahmed, Tax Inspector of rotri Municipality, who was examined in these proceedings, has misled the trial Court that the dispute between the private parties pertained to the plot of Kotri Municipality though it was in fact a portion of footpath. Maqbool Ahmed‑ deposed on the basis of an entry kept in Municipal record which entry does not reflect the description of the plot. Therefore, in order to save Government properties from the clutches of these unscrupulous persons on the one hand and deprivation of civic amenities to the residents of the town on the other hand compelled me to direct the D.C.O. Dadu, T.M.O. (T.O. infra) and T.O. (Regulation) to appear with the record.

2. It appears from the record that entire assets of the Kotri Municipality has been sold and or rented out on permanent basis on meager amounts of rent unathorizedly by Municipal Officers, at times to favour the individuals at the cost of the general public to serve their personal interest without observing codal formalities. All, the, tenancy agreements or lease agreements entered into by these public officers on behalf of Kotri Municipality with the private tenants have no legal sanction as per record for want of approval from the Competent Authority. The record reflects that no permission from the Competent Authority has been sought while alienating the Municipal assets/properties resulting huge monetary losses to the Municipality. All such agreements by which the Municipality has let out its properties without the approval of Provincial Government are void. It has been pointed out by the officers present in Court, that the roads, streets and footpaths were rented out to the private individuals and in this connection they have pointed out one instance where on one of the roads near Malik Mehrab Park, Kotri, which too has been encroached by one of the sons of the employee of the Kotri Municipality and Pacca construction has been raised shortening the road width and .now attempts are being made to regularize it. It is unfortunate that the roads, streets and footpaths in Kotri are rented out and or allowed to be encroached upon by the Municipal Officers to benefit some individuals for consideration to the disadvantage of the residents of the Town who cannot walk or move freely in the too creating nuisance all around.

3. The footpaths, streets and roads can neither be rented out nor could they be allowed to be encroached upon being inalienable civic amenities which are meant and reserved for the public. The residents of the town cannot be deprived of their basic rights by the Kotri Municipal Officers to walk on the footpath nor the smooth flow of traffic can be hampered under the garb of allowing any individual to encroach upon civic amenity by allotment of any portion of the civic amenity either on rent or by way of Piri Tax. All such acts d6 the Municipal Officers are illegal and violative of the provisions of Sindh Local Government Ordinance, 1979, besides the provisions of Municipal Laws. These acts of the Municipal Officers falls within the mischief of `maladministration'.

4. The entry, in the present case, kept in the Municipal record pertaining to the subject property does not contain any sketch, plan plot number or specified area and or any other such description in order to identify the plot. All the details of the nature are necessary to rent out a premises. In fact from the pleadings of the parties it is clear that no plot of the Kotri Municipality is in occupation of either party. Entry on the basis of which finding has been given by the Courts below is the portion of a footpath. Both the private parties have no legal right to claim any right and or seek any relief through the proceedings of which these revisions are offshoot.

5. These revisions, therefore, stand dismissed with the observation that even Bhawanmal the deceased‑respondent in the above proceedings, had no legal right to file the suit claiming to be the permanent tenant of a portion of footpath which admittedly he had sublet to the applicant. Properties of Municipality cannot be allowed to be sublet unless the Government and or a lease containing such a clause is incorporated which is not the case in these proceedings, which in the present is note available.

6. During the examination of record, produced by the officers of the Municipal Committee, it appears that properties of the Municipality have been rented out without the sanction of the Government in violation of the law, without complying the codal formalities. Even the civic amenities like footpath, streets and roads have been allowed to be encroached upon illegally in order to benefit individuals. As observed hereinabove civic amenities ire meant to facilitate public and cannot be permitted to be rented out to the individuals. All such entries maintained/kept in the Municipal Committee on the basis of which footpath or other properties have been rented out by the Municipality have no sanction of law.

7. After examining the record with the assistance of the Municipal Officers present in Court, I found this is a case of extreme high handedness by the Municipal Officers in particular those who unathorizedly have deprived the residents of the Town from civic amenities by renting them out illegally besides disposing of the assets of Municipal Committee on the basis of entry which has no legal sanction. The Officers so indulged in this practice have abused their authorities being public functionaries and have also misled the subordinate Courts by believing such entries as lease, which at no point of time was granted lawfully to the individuals as in the case of Bhawanmal. The public functionaries are obliged in law to discharge their duties fairly but here the actions of the Municipal Officers referred to hereinabove clearly falls within the mischief of 'maladministration as defined under section 2(2) of the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991 (hereinafter referred to as the Act).

8. For the aforesaid exceptional circumstances, office is directed to immediately refer the matter to the Honourable Ombudsman under section 9 of the Act to investigate the aforesaid actions of the Officers of the Municipal Committee, Kotri in regard to the leasing out and or renting out the footpaths, streets to the individuals unauthorizedly beside the assets of the Municipality which have been alienated by these functionaries unauthorized without the sanction of the Competent Authority in violation of law and may pass an appropriate orders against such Municipal Officers in terms of the. Act as this matter ex facie falls I within the mischief of 'maladministration'.

9. Additionally, copies of the order be communicated to the Chief Secretary, Secretary Local Government Department Sindh, District Coordinating Officer, Dadu, Taluka Municipal Officer, Kotri besides the Advocate‑General, Sindh for information, action and compliance at their end.

10. These are the reasons of my short order, dated 6th October, 2003 by which I had dismissed both‑the revision applications. H.B.T./S‑32/K Revision applications dismissed.