2009 PLP 149 (YLR)

MUNIB AHMAD KHAN, J.

C.M.A. No.8962 of 2008 is an application for urgent hearing filed in Constitution Petition No.D-1009 of 2003, which is granted.

2. Nazir's report dated 14-11-2007, filed in Constitution Petition No.D-532 of 2006 is taken on record.

3. Letter dated 18-9-2008, written on behalf of Check and Watch Environmental Foundation and Nazir's report, dated 14-3-2007 in Constitution Petition No.D-253 of 2007 are taken on record.

4. Keeping in view the-involvement of issues which effect the general public and require attention of Government functionaries/bodies this matter was taken up after interval so all the concerned Government officers appear and submit their views but no senior police officer or the Home Secretary did appear, therefore, matter was delayed till 1-00 p.m. and thereafter proceeded without attendance of these two officials as the police officers mentioned above demonstrated themselves to be competent to have a say in the matter.

5. We have heard all the learned counsel and respective parties, present in person, in all the three matters.

6. We record the difficulties of K.B.C.A, which have been put forward by Mr. Shahid Jamiluddin and Manzoor Qadir, Chief Controller of Buildings, K.B.C.A as well as Mr. Manzoor Ahmed, EDO (Law) for C.D.G.K. They state that after persuation through Court's orders in some litigation as well as per demand of public although by a Notification bearing No.POL-HD/7-6/88 dated November 10, 2007, a police station has been established by the Sindh Government for C.D.G.K. and K.B.C.A purposes but it is ineffective as even the arms and ammunition by the police officials are to be drawn and deposited on daily basis while out of a strength of 35 constables only 15 police officials are available as a working force while 4 are handicapped and others are on leave or on deputation. Moreover, the said police station has no power to register an F.I.R. while it is meant for three big organization like K.B.C.A., C.D.G.K including K.D.A Wing as well. They further submit that it will be in the interest of general public that the illegal constructions are to be stopped in accordance with K.B.C.A. law and besides taking action for their removal some restraining and punitive measures are to be adopted in terms of section 19 of K.B.C.A. Ordinance, 1979 by lodging F.I.R. but that cannot be done as even the police force is not provided in the area by the concerned police station when the Deputy Controller of Buildings of the area approach them.

7. Mr. Shahid Jamiluddin has referred orders, dated 27-2-1998 and 13-2-2007, passed in Constitution Petition No.D-160 of 1998, reported judgment 2000 SCMR 1748 and stated that illegal construction and activities have always been deplored by the superior courts and certain measures were proposed for their remedies. They request that keeping in view increasing grievances from the general public and numerous petitions by the Non-Governmental Organizations ("N.G.Os.") the K.B.C. A. has established its Committee to decide the grievances within a shorter period of two months while it will be appropriate and adequate, in terms of the Government of Sindh's Notification bearing No. POL HD/7-6/88 dated November 10, 2007, that the Police Station of C.D.G.K. is to be given full-fledged powers with police mobiles to be provided by the Government of Sindh with other normal facilities, which are a requirement of Police Station and that a Magistrate as well as the power to lodge F.I.R. under relevant criminal laws be also given to the C.D.G.K. police station so it become more effective like the K.E.S.C. Police Station and its exclusive Magistrates.

8. Learned Advocate-General Sindh after going through the Notification referred to above submits that although the police station has been provided but it is in respect to the offences of Sindh Local Government Ordinance, 2001, Sindh Building Control Ordinance, 1979 and Sindh Public Property (Removal of Encroachment) Act, 1975 but it cannot take action under other laws, therefore, F.I.R. under criminal laws may not be allowed to be registered by them. He submits that C.D.G.K. Police may take other action in the laws mentioned in the Notification but lodging of the F.I.R. in P.P.C. or other criminal law will amount to taking up jurisdiction of the general Police Station. He further submits that the contents of the petitions, taken up today, are not public interest litigation and that this type of litigations may not be entertained by this Court. He further submits that any reference to the K.E.S.C. example may not be given as the K.E.S.C. has now been privatized. Mr. Ahmed Pirzada has almost argued in the same way.

9. The police officers present, after examining the above referred Notification, submit that they are ready to provide police assistance as and when required provided some days's advance notice is given to them by the K.B.C.A. They further submit that the C.D.G.K. Police Station is also there and it can be assisted by the area police where the action against the illegal construction and/or building is to be taken.

10. In such a situation and finding that in the past, police stations and even the Magistrate has been provided to K.E.S.C. to tackle with the electric theft while the problem of illegal construction is more alarming, therefore, we order that the Home Department, Government of Sindh, and Inspector General of Police, Sindh, will coordinate with K.B.C.A. and entrust full-fledged powers' upon the C.D.G.K. Police station with adequate force and power to register F.I.R. in terms of Notification of November 10, 2007. The ancillary requirement, including police mobiles, etc. for the police station, are to be fulfilled by the K.B.C.A and C.D.G.K. The police Station of the area will also provide all assistance to the K.B.C.A. police and will ensure that action taken in respect of a building should not be undone.

11. We have also been intimated by K.B.C.A's officials that proper place for police station has been provided having strong-room and lock up and if there is any deficiency then it will be met with. We order that the police station will remain under the control of City Nazim, City District Government, Karachi and District Co-ordination Officer of the Karachi, as mentioned in the referred Notification. The investigation of cases would be carried out under the supervision and direction of DIG Investigation, Sindh Police, Karachi, for which proper arrangement may also be made by the concerned departments, which include hiring of services of technical expert in the construction.

12. We have also been intimated that after illegal construction of the buildings/ floors/tenements; water; electricity and gas connections are being provided to the parties concerned and after occupation of the building by unaware purchaser or other persons the builder(s) normally disappear. Mr. Aasim Iqbal, for S.S.G.C. states that the company is bound to supply gas connection at the request of the applicant. In support of this contention, he has referred Rule 13-A of the Natural Gas Rules, 1960. It is pertinent to point out that the word "applicant" used in this rule connotes "applicant who carries with him proper title" and proper title in this respect can only be when the person is occupying the premises in a proper and legal way. Mr. Muhammad Ali Mazhar, for K.E.S.C. states that K.E.S.C. is ready, to cooperate with K.B.C.A. while it is facing great difficulties in illegal connections. In such a situation, it is ordered that the gas and electricity connections are to be provided only when the approved building plan(s) is/are being issued by the K.B.C.A. and to the premises only which are mentioned in the said approved building plan. Moreso, if these connections are being illegally extended to other unapproved structure(s) then these authorities, at the request of K.B.C.A., would immediately disconnect the same.

13. It has further pointed out that after construction of the building sub-leases are being registered by the builder(s) and these are accepted by the Sub-Registrar of properties without examining as to whether the building has been constructed legally or illegally, therefore, it is ordered that only those sub-leases from the builders will be admitted, executed and registered by The Sub-Registrars properties of the concerned area, which are in accordance with the approved building plan from K.B.C.A. and in case of doubt their authenticity to be checked from the K.B.C.A. which should be done within seven days' time by the K.B.C.A. The Registrar of Properties to take care of the directions. In case of water supply similar position is to be adopted and water connection is to be provided only to the premises which have legally been constructed keeping in view the approved building plan.

14. It has further been noted that all the Deputy Controllers of Buildings of the K.B.C.A, who appeared in Court, when ask about the illegal construction then they gave unsatisfactory reply by stating that he has been transferred just only 2/3 months before. This state of affairs cannot be tolerated as by this act they shift their responsibility to other person hence they cannot be left scot-free. In such a situation, the K.B.C.A. is directed to take proper action in this respect and ensure that the D.C.B should remain on one seat for appropriate time and no transfer/shifting is to be made frequently, moreover at the time of transfer the D.C.B. to and from a Town to furnish a detail of illegal construction in his area he has noticed and action taken.

15. This order was dictated in Court on the day of hearing i.e. 25-9-2008 with opportunity to all the learned counsel for the respective parties including the learned Advocate-General Sindh to submit any document or authority but none except Mr. Shahid Jamiluddin, submitted photo-stat copies of orders and authorities, therefore, this order as been signed on the date of signature. In view of the above order C.M.A. No. 8963 of 2008 in C.P. No. D-1009 of 2003 and Misc. No.963 of 2007 in C.P. No. D-253 of 2007 have become infructuous which are accordingly dismissed. Adjourned to a date to be fixed by the office. Meanwhile, office is directed to send copies of this order to all concerned quarters. H.B. T. /K-33/K Petition dismissed.