1998 PLP 1568 (SCMR)

SAIDUZZAMAN SIDDIUQI, J.

The abovementioned 3 petitions arise from the order dated 10-3-.1998 passed by a learned Division Bench of the High Court of Sindh on a fax message which was received by the Hon'ble Chief Justice of the High Court of Sindh and was converted into. a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, issuing following direction to various authorities:- "On his part, Roland De Souza, one of the petitioners, says that the compliance of orders in this petition is not satisfactorily at all. He has been asked to pin point and identify the deviations and the persons responsible so that 'appropriate action can be taken. Meanwhile, Mr. Dasti Muhammad Ibrahim says that the K.B.C.A. is actively engaged in effective compliance of orders. Even so, we would like to emphasize in relation to the Karachi Water and Sewerage Board and the K.M.C. that discharge of functions on their part in accordance with law is crucial and unless they do what is expected of them, including compliance with orders passed by a competent Court of law, serious view of the matter would, be taken and those responsible would be firmly dealt with. Let copies of this order and the order dated 27-2-1998 be forwarded to the heads of department of all the agencies involved in these proceedings and let strict compliance be required at their respective ends. Put up on 19-3-1998 but on that date the Secretary, Government of Sindh, present today need not attend." As a result of the above order passed by the learned Division Bench of the High Court of Sindh the utility services provided to various buildings were either disconnected or were threatened to be disconnected by the Water and Sewerage Board, Sui Gas Company and the Karachi Electricity Supply Corporation (KESC). One of the above petitions (C,P.178-K/98) was placed before one of us in chambers on 31-3-1998 and after hearing the learned counsel for the petitioners, following interim order was passed:-- "The learned counsel contends that on a complaint received by the Hon'ble Chief Justice, High Court of Sindh, through fax sent by 'Citizens for a Better Environment Society', the fax message was converted into a Constitutional petition and notices were ordered to be issued to K.B.C. and K.D.A. After comments were filed by K.B.C. and K.D.A. before the High Court, a learned Bench of the High Court passed an interim order in the petition which amongst other contained the following observations:-- 'Besides, the KBCA would inform the KESC, Suit Southern Gas Company and the Karachi Water and Sewerage Board to, in relation to such offending buildings, forthwith discontinue the amenities provided by these agencies to them. Once, the KBCA instructions are issued such would be carried out without any demur on the part of the addressees. Likewise, the KBCA would ensure that in relation to the aforesaid buildings, no further construction, creation of third party interest or occupation comes about and in this regard the KBCA shall immediately seek due assistance from the I.-G. Sindh, the Commissioner Karachi and the District Magistrate concerned. The last of the above observations would apply to all unauthorized structures throughout the city of Karachi.' The learned counsel contends that on the basis of the above observations of the learned Bench of High Court of Sindh, as many as 35 buildings have been deprived of the Water, Gas and Electricity connections. It is contended that the fax message contained the allegation regarding. illegal construction in respect of about 35 buildings and there was no prayer for disconnecting the services provided to these buildings. It is also contended that neither the allottees/occupants of these buildings were heard nor the alleged violators of the building plans, before passing the interim order. After hearing the learned counsel, I am of the view that such an omnibus order should not have been passed at the initial stage without hearing the concerned violators/allottees and sub-allottees of the buildings. The operation of the order passed by the learned Bench of High Court of Sindh, dated 27-2-1998, in so far it directed the disconnection of Water, Sui Gas and Electricity is concerned, is accordingly suspended. The petition may be fixed at an early date, after obtaining orders, from the Hon'ble Chief Justice for hearing at Karachi, where a Bench will be available from 3rd to 17th of April, 1998." Thereafter, two other petitions (C.Ps. 153-K and 264 of 1998).were filed by the persons who were affected by the order passed by the learned Division Bench of High Court of Sindh dated 10-3-1998.

2. The learned counsel for the petitioners contend that the aforesaid order was passed by a learned Division Bench without hearing the concerned parties. It is also contended by the petitioners jointly, that in the fax message which was converted into writ petition by the Hon'ble Chief Justice, High Court of Sindh, the only complaint was regarding illegal construction of buildings but the Division Bench passed orders directing the agencies rendering utility services to, various buildings in Karachi to disconnect Water, Sui Gas and Electricity provided to them. This order has affected large number of buildings in Karachi whose occupants were condemned unheard. Apart from it, it is jointly contended by the learned counsel for the petitioners that an order of such a magnitude could not have been passed at an interim stage which deprived a large number of people from enjoying the utility services which they had enjoyed for years together. It is also contended that the learned Division Bench had no jurisdiction under Article 199 of the Constitution to entertain a request of this kind and to pass an order of such a high magnitude without hearing the affected parties.

3. The above contentions raised by the learned counsel require examination and we, accordingly, grant leave to appeal. However, as the petition is still pending before the High Court and it has not yet been finally disposed of, we are not-inclined to stay the proceedings before the High Court. The order passed by the -learned Division Bench, to the extent it directed disconnection of utility services namely, Water Supply, Sui Gas and Electricity energy to the buildings which are subject matter of the above petitions will remain suspended and if any action has been taken by the agencies responsible for supply of these utilities to the buildings, which are subject-matter of these petitions, the utilities will be restored immediately upon payment of dues, if any. M.B.A./Z-13/S , Order accordingly.