2017 PLP 232 (CLCN)

KHADIM HUSSAIN M. SHAIKH, J.

Record reveals that this petition was disposed of vide order dated 29.01.2008 in the following manner:- "The dispute arising in this petition is in respect of 13 plots, which have been auctioned by respondent No.4. The petitioner has challenged location of these plots on the ground that if these plots are allowed to be constructed then amenities of the public, residing in the vicinity i.e. Lines Area will seriously be effected. Learned counsel submits that beneath the proposed plots to be constructed, there are 15" and 6" water pipe lines while the storm drain nala running through these plots. His further contention is that available wide road of 150' will be narrowed by about 10' as per report of Deputy Nazir, hence the petitioner apprehends that if all these provisions of amenities are buried under the construction then their repair or removal will be impossible, keeping in view the apprehension of the petitioner commissioners were appointed and Deputy Nazir has submitted his report dated 28.02.2007 and thereafter Mr. Moinuddin, Deputy Registrar was again appointed as commissioner to inspect the site and he has submitted his detailed report dated 20.03.2007, wherein he has pointed out available access to the Lines Area including petitioner from different ways. Both the above reports are on record. After hearing all the learned counsel as well as keeping in view the apprehension of the petitioner, it is ordered that available road of 150' will not be narrowed in any way by the proposed construction on the plot, while the purchaser of the plots. Mr. Mushtaq Memon, learned advocate undertakes that his clients will undertake that the water line of 15" and 6" if any under the commercial plots are to be removed and shifted by providing better material under the instructions of Chief Engineer, Karachi Water and Sewerage Board and likewise the storm water drain, providing sewerage, is also to be shifted in a way that it will not effect the flow of water nor it will cause any inconvenience to the residence of Lines Area. The said undertaking is made part of this order. It is further ordered that any amenity of utility is replaced then it should be with better material without effecting its utility at present and in future. It is further being observed that, if Mr.Arif, Chief Engineer, present in court, is of the opinion that some necessary precautions are to be carried on then the proposed construction will follow it. With the above observations, this petition is disposed of".-

2. It further reveals that in pursuance of the orders passed by this Court, a joint inspection report of the Chief Engineer KW&SB and KMC bearing No.CE/EAST/&SOUTH/KW&SB/2013/06 dated 21.01.2013, was submitted by the learned advocate for the respondent KW&SB, through his statement dated 25.04.2013, which reads as under:- "With reference to the above Constitution Petition and in compliance to the subsequent orders of Hon'ble High Court of Sindh passed on 26/9/12 a joint inspection of site was conducted by the undersigned Chief Engineers of KMC & KW&SB for disposal of interlocutory matter for identification of storm water drain/Nallah and Sewerage system along line plan of such amenity service in the locality, it is submitted that there are no water or sewerage services of KW&SB effected with reference to the contention raised in the referred petition, as already stated in the previous report of this office submitted bearing No.CE/ East/ W&S/ KW&SB/2012/136,dated 27/8/12, wherein last para of this report it was clearly mentioned that there are no acute problem of sewerage disposal at present as observed. As far as the storm water drain/nallah of KMC is concerned, the referred drain became defunct /abandoned during course of construction of FTC flyover and its disposal is now diverted to the Nallah running alongside of Shara-e-Faisal while de-linked portion of storm water drain has been linked with 24"dia trunk sewer laid in 2003 from Sector 8-C upto Lucky Star, and later 12" dia and 15" dia sub-sewer for Sectors 8-A and 8-B were laid and connected with referred 24"dia Trunk Sewer of KW&SB for disposal of sewerage of this area."

3. Nazir after inspecting the site and taking the measurements submitted his report dated 23.04.2014, which reads as under:-

1. In compliance of Court's order, undersigned along with staff reached at site with Agha Attaullah attorney of petitioner. At site Mr. Rashid Hussain Deputy Director Lines Area Redevelopment Project, Mr.Irfan Ahmed Zai Additional Director Engineering Planning of Lines Area, re-development project with staff were present.

2. At site the master plan was presented by Additional Director LARP. The first point for determination was to ascertain, after taking measurements, as to whether or not road/street has been encroached and, if so, to what extent and what sections.

3. In order to determine encroachment on the public road/street the undersigned with the assistance of the officials of LARP took measurements from three different sections.

4. The measurement of first section was taken from the boundary line of plot No.C-10 to ZC-6 (Photograph Nos.1 and 2). The total measurement from the both points was 164'feet (see diagram). As per master plan the size of the road was 150' feet wide, however, 14' feet excess land was available at site, which per officials of LARP was Government land where the encroachment was found. Upon this section business of masonry blocks and concert material was going on.

5. The second point of measurement was taken from plot No.C-10/2-1 to ZC-4 (see diagram) the total area from the boundary line of both ends was 160' feet. The size of the road, as per plan was 150' feet and excess land was around 10'feet infront of plot No.ZC-4 (see photographs 3 and 4). The encroachment was found upon the land in this section which came to around 10'feet where temporary structure consisted of shed of "CHIPPA" built with iron roads and covered with cloth sheets (CANOPY) under which generator and some ambulances were parked. This section is mainly encroached by "CHIPPA" on the excess land available adjacent to the road.

6. The third point of measurement was taken from the alignment of C-10/2-1 to ZC-3 which was around 161' feet wide (see diagram). The size of road as per master plan was 150' feet the excess land was 11' feet which was encroached by "CHIPPA" for parking of Ambulances as well as motorcycles (photographs Nos.5, 6 and 7). At this section there was "Dastarkhawan" built for serving meal for the poor people being managed by CHIPPA (photograph No.8). The "Dastarkhawan" was mainly built of iron rods with iron shed (photograph No. 9) where people were seen in good numbers having meal. The encroachment upon the public road in this section was around 8' feet which fall within "Dastarkhwan" established by CHIPPA.

7. At the time of inspection the attorney of petitioner submitted that center point of the road was existing and polls were existing between 150' feet road, hence the road could be measured as to see whether 75' feet width on each side which was open and not covered by any encroachment of construction of building. Since the road leading from MAKRO Market to Shahrah-e-Faisal was 75' feet but this portion adjoining the ramp has not been measured and the actual illegal constructions exist of this portion.

8. The objection raised by attorney of petitioner was not considered for the reason at site there was no fixed midpoint of the road due to construction of ramp of FTC Flyover, therefore, difficulties arose in ascertaining the midpoint which even did not exist in the master plan presented by the officials of LARP. This position is very clear from the diagram. The purpose has been served by taking measurement from boundary lines of both ends in three different sections which is very clear from the diagram. For the convenience of the Honourable Court the undersigned had taken pictures of the area and prepared diagram which are enclosed herewith for kind perusal.

4. We have heard the learned counsel for the parties as well as A.A.G. for the Government and have gone through the material available on record.

5. Record reflects that notice on the contempt application listed at serial No.1, which is pending since 10.11.2014, was never pressed by the learned advocate for the petitioner for the reason that there seems to be no violation or dis-obedience of the order dated 29.01.2008, passed by this Court, disposing of the above matter. It needs no reiteration that the contempt proceedings cannot be initiated at the desire or whim of a litigating party and before proceeding against the alleged contemnors the Court has to be satisfied as to whether the alleged contemnors have done any act, coming within the mischief of the law of contempt. The learned advocate for the petitioner has not been able to satisfy the Court as to the maintainability of the contempt application. Accordingly, the instant contempt application, which is pending since 10.11.2014, without any progress, being misconceived and not maintainable, is dismissed in limine.

6. The application listed at serial No.4, filed by the respondent No.3 and the applications listed at serial Nos.5 and 6, filed by the petitioner, are interlocutory applications, under the provisions of Order XXXIX, Rules 1 and 2, C.P.C., seeking ad-interim injunction. Admittedly the petition stood disposed of vide the aforementioned order dated 29.01.2008 and in our view the ad-interim injunction being ancillary to the relief sought in the main case, can only be granted in a pending case, when it is established that there exists three ingredients namely prima-facie case in favour of the applicant, balance of convenience also does lie on his/her side and he/she shall suffer irreparable loss, if the injunction, prayed for, is not granted. Since this is a disposed of matter, therefore, these three applications in hand are patently misconceived and not maintainable. Reference can be made to case of Hazrat Khan v. Amanullah Khan and others (1996 SCMR 1217), wherein the Honourable Supreme Court of Pakistan has held that:- "So far as Civil Revision No.143 of 1989 is concerned as already stated the only grievance of the petitioner is that ad interim order of injunction should not have been passed by the learned District Judge which ought to have been set aside by the learned Single Judge. It appears to us that the effect of the order is that, as explained by the learned Advocate-General, the relevant authorities must give effect to the timing prescribed by the Court in its order. There appear no reasons in the order of the District Judge for having adopted this extraordinary course, to grant ad interim injunction when he was remanding the case to the Trial Court. Having disposed of the appeal, we see no reason why the District Judge felt it just and reasonable to issue orders of temporary injunction himself. He should have left the matter to the Trial Court before which the suit stood remanded. The effect of the order passed by the learned Single Judge was indeed to bless the order of temporary injunction as well, for which we see no justification at this stage. Without, therefore prejudicing any party, we are of the opinion that the learned Single Judge should have modified the judgment and order of the learned District Judge by setting aside the order of temporary injunction contained in the judgment." In case of Ram Sarup and others v. King Emperor (AIR 1924 Oudh 345), it was held that:- "One aspect of the matter which does not appear to have been emphasised or considered is the fact that the Subordinate Judge's order was passed after the suit had once been dismissed and before it had been restored to the file. There was, therefore, no suit pending at the time before the Court and it had no jurisdiction to pass any order. I am of opinion that the injunction granted by the Subordinate Judge was void ab initio and having been made without jurisdiction it can, therefore, be no bar to the release of the property. The order under which that property was originally attached was an entirely illegal order. I accordingly allow this application and direct that the property be released from attachment in favour of the applicants by the Deputy Commissioner of Bahraich." In view of the above, these three applications being not maintainable are dismissed.

7. The rest applications listed at serial Nos.2, 7 and 8, being infructuous, are dismissed as such.

8. However, the petitioner may avail remedy, if any, available to her, by filing appropriate proceedings before the Court or Forum of competent jurisdiction in accordance with law, if she so chooses. ZC/F-16/Sindh Petition dismissed.