P L D 2009 Karachi 309 (PLP)

MUSHIR ALAM, J.

Through the instant petition the petitioner has sought direction against the official respondents No.1, 2 and 4 for exercising powers and functions under the Sindh Local Government Ordinance 2001 (hereinafter referred to as SLGO) and against the respondents Nos.5, 6 and 7 for exercising powers under sections 139 of Police Order, 2002 (hereinafter referred to as Police Order). It is the case of the petitioner that the road connecting Orangi Town leading towards Banaras Chowk has been encroached and obstructed by the unscrupulous vendors thereby virtually rendering the road inoperative for the commuters travelling between the roads, causing tremendous inconvenience to the public at large on the one hand and to the lawful shopkeepers on the other, on either side of the road, which obstructs their fundamental rights to carry on their business in a lawful manner. By and large, the respondents do not dispute rampant encroachment on the footpath and obstruction caused by the vendors on the road rendering it unserviceable. Learned counsel for the respondents 1, 2 and 3 urged that in terms of sections 54(1), 76 and 88(f) of SLGO the functionaries are responsible to remove encroachment but they are not able to undertake any exercise for removal of the obstruction on the road which is rampant in the instant case. It was pointed out that the obstruction on the road is cognizable in terms of section 139 of the Police Order read with section 141 thereof. Sections 54(1)(f) (2)(e), 76 and 88 (f) of SLGO as well as sections 139 and 141 of Police Order are reproduced hereunder:-- "

54. Functions and powers of the Taluka Municipal Administration.--(1) The functions and powers of the Taluka Municipal Administration shall be to-- (a)

(b)

(c)

(d)

(e)

(f) prevent encroachments; (g)

(h)

(i)

(j)

(k)

(l)

(m)

(n)

(o)

(p)

(q)

(r)

(s)

(t)

(u)

(v)

(2) The Taluka Municipal Administration may- (a)

(b)

(c)

(d)

(e) prevent and remove encroachments; (f)

(g)

(h)

(i)

(j)

(k)

(l)

(m)

(n)

(o)

(p)

(q)

(r)

(s)

(t)

(u)

(v)

76. Functions of the Union Administration.

The functions of Union Administration shall be:-- (a)

(b)

(c)

(d)

(e)

(f)

(g)

(h) * * * * * (i)

(j) To improve and maintain public open spaces, public gardens and playgrounds; (k)

(l) To maintain the lighting of streets, public ways and public places through mutual agreement with the Taluka Municipal Administration; (m)

(n)

(o)

(p) To assist the relevant authorities in disasters and natural calamities, and assist in relief activities, including de-silting of canals; (q) to co-operate with the public private or voluntary activities similar to those of the union; (r)

(s)

88. Functions of the Union Council.

(1) The functions of the Union Council shall be to-- (a)

(b)

(c)

(d)

(e)

(f) mobilize the community involvement in maintenance of public ways, public streets, culverts, bridges and public buildings, de-silting of canals and other development pursuits; (g)

(h)

(i)

(j)

(k)

(l)

(m)

(n)

(o)

(p)

On perusal of above provisions, it is clear that Town Municipal Administration, Union Administration and Union Council in their respective domain are not only required to prevent and remove encroachment but also to improve and maintain public open spaces, public gardens and playgrounds. It is the responsibility of Union Council to mobilize the community involvement in maintenance of public ways, public streets, culverts, bridges and public buildings, de-silting of canals and other development pursuit. It may be observed that there is general slackness rather negligence on the part of functionaries under SLGO to discharge their obligation. It is not that they lack in resources, it is the will and determination that is often found lacking. "Police Order 2002 "

139. Causing obstruction in a street.

No person shall cause obstruction in any street or public place

(a) by allowing any animal or vehicle, which has to be loaded or unloaded, or take up or set down passengers, to remain or stand in the street or the public place longer than may be necessary for such purpose; or (b) by leaving any vehicle standing or fastening any cattle in the street or the public place; or (c) by using any part of a street or public place as a halting place for vehicles or cattle; or (d) by causing obstruction in any other manner.

141. Penalty for offences under Articles 138 to 140.

Any person who contravenes any of the provisions of Articles 138 to 140 shall, on conviction, be punished with fine, which may extend to ten thousand rupees, or, in default of payment, with imprisonment for a term not exceeding thirty days." Conventionally police is considered to be responsible to maintain law and order and to keep a vigil on criminals. They need to he trained and kept abreast of the new developments and enlarged responsibilities under the law enforced from time to time. It may be observed that Police Order is seldom used and or invoked to contain growing tendency of encroachment. Learned A.A-G. has drawn our attention to the comments filed by the respondents Nos.6 and 7 to urge that action has been taken against those vendors obstructing the road, a number of persons were arrested. It may be observed that public functionaries are not only expected but public street and causing obstructions on thoroughfare is rampant on account of the oversight purposefully for extraneous reasons or on account of lack of will, which encourages such unscrupulous persons to defy the law blatantly. Stern timely action may avoid creating this menace into a perpetual nuisance. If the menace of encroachment is not nipped in the bud, it grows out of the proportion, that requires substantial resources to remove it and at the same time it creates law and order situation. Since admittedly not only the road has been occupied thereby creating obstructions for the commuters and the passersby cognizable under Police Order but it is also evident from the photographs attached and the comments filed that the public street. Footpath have also been occupied by the miscreants bringing the issue within the domain of authorities under SLGO. Menace of encroachment being composite both on, road and public street needs to be addressed by concerted joint efforts of the functionaries under SLGO and Police Order and passing on the responsibility will not solve the problem. It is the joint responsibility on the administration under SLGO and the police functionaries under the Police Order to clear the public road and street from obstruction. Under the circumstances, we would direct the respondents Nos.1, 2 and 4, (functionaries under SLGO) on one hand, and respondents No.6 and 7 (functionaries under Police Order) on the other, to undertake a joint effort for factual removal of the obstruction/encroachment that may be found on the road and the public street or footpath thereof in a planned and concerted manner extending mutual cooperation and logistics to each other. Such exercise to be' carried out in a planned manner after holding of meeting between the public functionaries amongst themselves and then chalk out a plan to carry out such exercise preferably within a period of 30 days as agreed by all concerned present in Court and submit compliance report to this Court. Functionaries under SLGO may also solicit support of community to local area as provided under section 88(f) of SLGO 2001 to avoid any untoward happening and/or resistance in such exercise. Let a copy of the order be supplied to Mr. Manzoor Ahmed, Advocate, to Mr. Muhammad Idrees, Advocate and to learned A.A-G, Sindh for communicating to the authorities concerned for compliance. The petition stands disposed of in the above terms. M.H./M-84/K Order accordingl