1995 PLP 345 (MLD)

"Finally, it is clarified that in so far as the above‑referred open spaces for residential use are concerned such would be transferred on ownership basis but the lease money will be fixed at the minimum possible level in the Baldia Township namely, at Rs.62 per sq. yd., as disclosed. In deserving cases easy instalments shall also be allowed. Regarding the commercial tenements to be allocated such would be allocated without any unnecessary delay and as soon as possible but the rights of the persons to be accommodated would be those of tenants, the rentals being fixed, again at a minimum level, disputes if any referable to the Official Assignee. No premium whatsoever would be charged for renting out such shops from the persons found entitled hereunder. The terms, as far as possible, would be the same as such are applicable to other commercial premises rented out by the K.M.C. in the city of Karachi. In the event before any of the allocations are made, whether of a residential or commercial character, a person entitled is shown to have expired his legal representatives would inherit his rights, without any unnecessary question being asked:' Following upon the passage of the aforesaid preliminary decree, the outstanding claims were examined and determined but that consumed several dates of hearing Commitments in the form of statements were also taken from the representatives of various agencies including the two defendants, the K.E.S.C., the Karachi Water & Sewerage Board and Pakistan Railways etc. for duly abiding with the rights conferred on the affectees and assuring due implementation of the scheme of rehabilitation following upon, the displacement from the Nusrat Haroon Town aforesaid and Frere Town, which also was found to be involved. In this context, on 28‑11‑1993 tote under-noted order came to be passed:‑‑‑ "Meanwhile, it has already been observed in the earlier orders of this Court that till such time as minimum amenities are provided in the area where the residents of the Lily Road Over‑Bridge affectees are to be shifted orders of shifting will have to be held back. However, such orders as remain to be passed are of a formal character because substantive orders were passed as far back as the time of passing the preliminary decree in the suit. Even so as a first step Karachi Water & Sewerage Board would initiate immediate measures for making the facilities of water available in the area where the affectees are to be rehabilitated. As soon as it is done shifting should start and with that KESC would commence providing street lights because this they cannot do immediately as according to the officer present electricity wires and other material would be exposed to theft without the availability of some or more of the residents there. In so far as electricity connections to the plots are concerned such would be provided according to the KESC Rules and Regulations once the plots are occupied and adequate constructions are raised. Regarding sewerage the position taken is that in the whole of that area effluent is being disposed of by providing soak‑pits by the plot holders: The same can be done by the rehabilitated people. On the other hand even though orders were earlier passed that necessary payments for allotments of plots to the residents be made so as to expedite the work of shifting of residents no details have been provided to the Court as yet either by Mr. A.R. Mirza or by Mr. Dewan Bashir Ahmed. This they should do within a week's time." On 12‑12‑1993, as regards the provision of water in the area to which the residents were to be shifted, it was recorded as follows:‑‑‑ "Mr. M. Yasin Kiyani has just now shown me a copy of the letter dated 11‑12‑1993 from the Executive Engineer‑IV, K.M.C., indicating that one surface water tank, in the area where the residents are to shift, will be completed within a week's time and the second would also be completed likewise." On 23‑t2‑1993, an order for balloting was passed in the under-noted terms:‑‑‑ . "As to the resident affectees it is stated that most of them have obtained and paid for the challans for seeking allocation of plots under the terms of the preliminary decree and the various orders passed in this suit. To those, however, who have not yet made full payments one further week's time is allowed to obtain due challans and make payments therefor. This being done, the persons who have obtained and paid for the challans would make appearance, before the Official Assignee at 11‑00 a.m. on 2‑1‑1994 and present photostat copies of paid challans to the Official Assignee. Representatives of the defendants would also be present at the time and if there are errors in the challans which have been issued 'such errors would be rectified and a final list would be prepared and a copy would immediately be handed over to the representative of the K.M.C. so that necessary corrections can also be made in the Bank record. At this stage, it may be clarified that the allotments to the affectees would be made‑in Sector 12‑F, Baldia Township, Karachi and Mr. M. Yasin Kiyani has assured this by providing a copy of letter dated 18‑12‑1993 from the Senior Director, Land and Estate, K.M.C. to the M.D., KESC and the M.D. Karachi Water and Sewerage Board, which copy has been brought on record. The foregoing having been done balloting for the plots would 1,3e held at 11‑00 a.m. on 4‑1‑1994 at the office of the Official Assignee at which time interested persons meaning thereby the parties or their representatives may "be present. The method of ballot to be adopted would be such so as to obviate all possibilities of subsequent objections. Plan of the area, however, would first be placed before the O.A. Coming to the commercial affectees of the area, they or their representatives would be expected to be present before the Official Assignee at 11‑00 a.m. on 1‑1‑1994 and thereupon final list of such persons would be prepared. Balloting for allocation of shop premises to such affectees would take place at the office of the Official Assignee at 11‑00 a.m. on 5‑1‑1994 and the procedure followed would be the same as in relation to the residential affectees. Here it may be clarified that some grievance has been made today before me to the effect that the area underneath the proposed bridge which has been earmarked for raising the commercial units is not the best located area and better areas are lying vacant with the ostensible objective of disposing them of upon obtaining maximum possible financial profits to the agencies. Regarding this Mr. M. Yasin Kyani has stated that in all there is a provision for 107 shop units under the bridge and out of that No.104 are to be made over to the commercial affectees and such apprehension therefore is totally ill‑founded. There is no reason to doubt what Mr. M. Yasin Kiayani has stated. However, to make assurance doubly sure, it is specifically directed that in the event any other commercial complex is programmed under the bridge the commercial affectees would have the first option to seek allocation thereof in lieu of what is being provided to them, if they so choose." The order dated 23‑12‑1993, of which a part has been reproduced, was challenged through High Court Appeals Nos.4, 5 and 6, all of 1994 and such order was, by consent, set aside on 2‑2‑1994, resulting upon a remand for reconsideration in the light of submissions of the contestants. On remand necessary hearing was again accorded. No objection to the order dated 23‑12‑1993 was taken except that necessary publication, pursuant to the grant of the application under Order 1, rule 8, C.P.C., was taken out. It was pointed out to the learned counsel that such application in the High Court, on its Original Side, is filed, considered and granted, if need be, by the Additional Registrar (O.S.) and compliance in the way of public advertisement etc. is also to be made at that level by the applicant. The default, therefore, if any, in taking out the requisite publication was that of the plaintiff‑applicant and yet it was the plaintiff, who was one of the appellants. The plea for publication, at the belated stage, was strongly opposed from the side of the defendants; more‑ so, because the lack of publication through newspapers was a default preceding the preliminary decree, which had attained finality. It was also said that because of the more than one surveys of the area all possible interests were duly notified in person of the filing of the suit. These objections were well -founded. Personal intimations, which is an alternative postulated by rule 8 of Order I, C.P.C. itself, on account of successive surveys of the area, may also have come to transpire, satisfying the requirements of law. Even so, in the interest of justice, on 6‑3‑1994, I allowed necessary publications in the press. In spite of this, the plaintiff defaulted in payment of costs for the relevant publications. Still time was extended. Following upon the publications some more appearances were made. Relevant interests were examined and appropriate orders were passed. In the meantime, the commercial occupants have been removed but in circumstances which have led to filing of more than one contempt applications, on which notices have been issued but the applications are still unripe. Contempt being a severable matter from the main proceedings, it is unnecessary to hold off the proceedings till the matter of contempt is taken in hand and disposed of. As such, it has been decided that the contempt proceedings would go on separately and the main suit, meanwhile, can be taken up and disposed of. Regarding the claim in the suit, which, in the circumstances, has to be decided in a representative character, the plaintiff has pleaded title by adverse possession, defendant K.M.C. in turn denying. Admittedly the occupied land is State property and even if all requirements of title founded on adverse possession are satisfied such possession, dating back to the year 1947, would still fall short of the minimum requisite period of 60 years, envisaged in Article 149 of the Limitation Act, which is the limit of time within which the Federal or a Provincial Government can file a suit. The plaintiff, in the alternative, may have based the claim on the doctrine of Promissory Estoppel but that did not become necessary as the defendants chose to provide alternative spaces or structures for accommodation. As seen, pursuant to the foregoing, various protections have been allowed to residents in the Nusrat Haroon and. adjacent Frere Town. Correspondingly, balloting has been held and allocations of various plots have been made to such residents in the alternative area, which, according to the Official Assignee's report dated 20‑4‑1994, falling in Sector 12‑F, Baldia Town, is favourably located, as regards proximity to amenities such as electric and gas supplies and availability of transport. On my query, the contestants have taken no objection to the balloting except that the allocations have been made not in one block of land but many a people have been scattered and thus distanced from one another. This is hardly any objection so long as the allotted plots carry the same measurements and the shiftees are housed more or less in the same location. The objection is overruled. Another objection is that high‑tension wires are passing through the area which would pose a possible health hazard to the shiftees. The Official Assignee was required to conduct a survey and has reported that the plotting of the area is at a minimum distance of 40 ft. from the poles carrying high‑tension wires and such is not likely to expose the occupants to any unnecessary health hazards. In the event further scientific research warrants re‑consideration that option would always remain open. As to provision of water, undertakings have already been taken and 20 bowsers would be provided each day to the over‑ground tanks, both of which are stated to have been completed, for distribution to the shiftees. Undertakings have also been given from the side of the KESC to put up the electricity lines and poles within a month's time from the date of shifting. In this situation, keeping in full view the above‑quoted precautions, the Official Assignee would supervise the shifting of the residents in a smooth and orderly manner. It would also be ensured that, before the entire shifting is completed, the electricity poles and wires are in place and at least street‑lights are provided before the last affectee is shifted. Correspondingly, KESC functionaries would ensure that electricity connections to the new plot‑holders are extended without any loss of time, violation being deemed transgression of an order of injunction granted by this Court. Copies of this order shall immediately be forwarded to the Managing Director, KESC, as well as to the individuals, who had, earlier, rendered the undertakings in Court. Relative to sewerage facilities because of the non‑availability of sewage lines, to start with, the residents would make arrangements of their own soak‑pits but sewage lines would be provided as soon as the same are available in the area. Like would be the case of water pipelines. Reverting to the commercial occupants of Nusrat Haroon and Frere Towns, they too would be provided the alternative accommodations of shops already allocated to them within the time span spelled out in the earlier orders of the Court and on terms already stipulated and agreed upon, transgression, if any, again being violation of an order of injunction of the Court and likewise actionable. It may, however, be added here that the periods time for completion of the Bridge Project, stipulated in the undertaking(s), would commence from the date the commercial occupancies have been taken over and clearance of the whole area for the purpose would have no relevance. There has been a specific provision, incorporated in an earlier order of the Court, requiring issuance of due slips to the commercial shiftees at the time of taking over possessions from them. If such has not been done, defendant K.M.C. shall effect compliance within a month and the Official Assignee, who, till full implementation of the decree shall continue as Commissioner, would ensure this, much as would be expected from him in relation to other matters in the suit requiring his attention. Lists of commercial and residential occupants (107+101) with details of alternative accommodations to be made available have been prepared under the hand and seal of the Official Assignee and would be provided for being appended herewith. Likewise, photostat copies of the plans, incorporating the details of the residential and commercial units allocated to the affectees, would also be placed by the Official Assignee on the record and shall as well be duly annexed with this final decree. All Official Assignee's references, objections thereto and all pending applications except those for contempt are accordingly disposed of. The details of such matters, some of which already stood duly dealt with, as reflected in the‑order sheet dated 2‑6‑l994, have been proved by the Official Assignee through a note, duly signed by him, which is taken on record. Official Assignee may suitably claim such further fee for his services as be admissible. The final decree in the above terms would follow. A.A./R‑280/K Suit decreed.