2020 PLP 622 (SCMR)

GULZAR AHMED, C.J.

Still we are not given any proper update about the operation of the Karachi Circular Railways (the KCR) as neither the Secretary, Railways nor the learned Advocate General, Sindh has any instructions, in that, they both state that it totally depends upon the provision of financing facility by the People's Republic of China and activation of the project by the Chinese contractors.

2. We believe that what has been said before us today by the Secretary, Pakistan Railways so also the Advocate General, Sindh gives a very grim picture about the KCR's revival and its operation. The Pakistan Railways seems to have unending paper work that needs to be done, including that of financing, before it actually starts working on the KCR, but the real issue for the people of Karachi is about making the KCR available to them and that too, at the earliest possible date, for that, transportation of the people from one area of the city to another area has almost become impossible due to absolute non-availability of road transport. The city is choked by motorcycles, on which, at times, the whole family of a poor person travels, which of course is very dangerous for their lives. Whatever other transport is there, it is altogether inhuman and below the dignity of a citizen. We note that no planning has been made so far for addressing the unending misery of the people of Karachi, as they are altogether starved of transportation. In the mega city of Karachi, with a bulging Population of about three crores, obviously this cannot be allowed to go on. The Pakistan Railways, Government of Sindh and even the Federal Government appear not willing to improve the situation and salvage the people. In the circumstances, this Court cannot allow such a devastating situation to prevail, in that it has to do its work of enforcing the Constitution of the Islamic Republic of Pakistan.

3. The preamble of the Constitution lays down, inter alia, that the State shall exercise its powers and authority through the chosen representatives of the people, wherein the principle of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and wherein shall be granted the fundamental rights, including equality of status, of opportunity and before law, social, economic, political justice and freedom of thoughts, expression, belief, faith, worship and association, subject to law and public morality. Article 3 of the Constitution provides that the State shall ensure the elimination of all forms of exploitations and the gradual fulfillment of the fundamental principles, from each according to his ability to each according to his work. Part-II of the Constitution deals with the fundamental rights and Principles of Policy and Article 9, thereof provides that no person shall be deprived of life or liberty save in accordance with law. Article 14 of the Constitution provides that the dignity of man and subject to law, the privacy of home shall be inviolable and Article 15 of the Constitution provides that every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and: move freely throughout Pakistan and to reside and, settle in any part thereof. Article 18 of the Constitution provides for freedom of trade, business and profession and Article 25 thereof provides that all citizens are equal before law and are entitled to equal protection of law, Article 37 of the Constitution provides for promotion social justice and eradication of social evils. Article 38 of the Constitution provides or promotion of social and economic well being of the people.

4. These are the provisions, which guarantee to the citizens the rights, as are noted therein and each of them as essential to the citizen and also interdependent on each other. Most sacred among them is the 'right to life' and such right to life is not restricted only to the prosecution of a person but the state is required, as mandated in the Constitution, to ensure that all aspects of citizens' life are protected and dealt with by the State.

5. The provision of drinking water, is a right to life; provision of electricity, is a right to life; provision of education, is a right to life; provision of health facility, is a right to life; provision of civic infrastructure and civil infrastructure, is a right to life; so is the subject of transportation of the citizens, is a right to life, for without transportation neither can the citizen get education, engage in his trade, business or profession, nor can a citizen reach the healthcare institutions nor can a citizen obtain necessities of life, like, food, clothes, etc. and such needs keep on going 'ad infinitum'. The: pivotal thing to be noted is that the State is required to provide citizens, safe, humane and dignified means of travelling, from one destination to another, within and outside the Cities. This is also essential to ensure equality of the citizen and also as a social justice, to eradicate social evils and to promote social and economic well being of the people. The State and its Organs cannot, as per mandate of the Constitution, abdicate, ignore or abandon this most important function of theirs and leave the citizens to fend themselves, which only drives the citizen towards anarchy. This is what happening in Karachi today.

6. The mega city like Karachi, where the bulk of the population of the province of Sindh is settled, needs optimum and immediate attention by the State to provide these constitutional rights and safeguards to the people. The State by rendering such services to the citizens, does not give any favour to them but such is the right of the citizens under the Constitution, which the State and its organ are duty bound to perform. The State and its organ have no option but to perform their constitutional obligation and there is no flight from the same.

7. In the face of these mandatory constitutional burdens upon the State, what we see and find is that the KCR, which was once operating in Karachi, providing easy, accessible, and dignified mode of conveyance to the people of Karachi, with reasonable charges, was forsaken. The Japan International Cooperation Agency (the JICA) offered to revive and operate the KCR some more than 20 years back with no strings or burden, and constantly sought government's approval to do the job, but was not allowed to do so. Subsequently, the Pakistan Railways took up the issue and it also failed. However, when the matter was taken up by this Court on 10.11.2018, some work was started and deadline for its revival and its operation were given but due to the very apathy of the Pakistan Railways it did not meet any of the deadlines. Yet we find that the Pakistan Railways is at the planning stage and proposals after proposals are being considered and nothing concrete has been brought on the ground. On top of all these rigmaroles and non-attentive attitude of Pakistan Railways, it has sought refuge now, that the project will be completed by the China-Pakistan Economic Corridor (CPEC). CPEC means discussing the feasibility of revival and operation of the KCR with the Government the Peoples' Republic of China, for obtaining of finances from China, then inviting contractors from China, who will give their own proposals about feasibility regarding revival and operation of the KCR and after unending paper-work, spanning over years, whether the Chinese Government or the contractor agree to go on for the revival and operation of the project of the KCR, will remain hanging in the balance with no guarantee whatsoever that such will be done by the Chinese Government or its contractors. This is altogether not acceptable and we find it very hard to accept that the Pakistan Railways has no resource and capacity in it to revive and make operational the KCR, which merely comprises of 42 kilometers. We believe that the Pakistan Railways has the resources, the capacity and even the funding, where it can revive and operate the KCR of 42 kilometers and we cannot let the Pakistan Railways off the hook from complying with this constitutional legal, social and moral obligation. The Pakistan Railways with the aid and assistance of all agencies in Pakistan has to revive and operate the KCR and it shall do so positively within a period of (06) six months, otherwise, all relevant Government Executives and Officials of the Pakistan Railways shall put themselves in a perilous situation, as the Court may take action against them, not only that of contempt of Court but even that of not complying with the mandatory commands of the Constitution.

8. The Secretary Pakistan Railways has admitted before us that a major portion of the lands of Gulshan-e-Iqbal Railway Station has been turned into Pakistan Railways Employees Housing Society and the remaining land has also been allowed to be encroached upon with subsequent interest. Not only this, but both sides of the Railway land starting from Kemari and up to Landhi, are totally encroached upon and even businesses have also been allowed to be constructed on them including that of petrol pumps, marriage halls, restaurants; show-rooms and offices, etc. Furthermore, the portion of land of Railways, which go all around Karachi, has also been encroached upon.

9. We have gone through the Railways Act, 1890, Railway Board Ordinance, 1959 and also the Railway Regulatory Authority Ordinance, 2002 and have not been able to find any provision in them, where the Railway can allow any of its lands or infrastructure to be converted into that of a private housing society. There is no provision in these laws, where the Railway may have been allowed to acquire land for making of a private housing society for its employees. If there is any provision for acquiring of a land, the same has to be for the purpose of Railways, its operation, and infrastructure and nothing beyond that. The Railway apparently seems to have been allowed making of residential colonies and dwelling houses but such residential colonies and dwelling houses have to be the property of the Railway itself and not private property of the Railways employees. Any employee living in such residential colonies or dwelling houses will merely be a licencee and shall occupy the same for the period as provided by the Railways Act itself or as the terms and conditions of the service provide. The making private housing society by the employees of the Railway on the Railway land apparently not permissible under the law.

10. All these societies and encroachments appear to be illegal on their very face, for that, the Railway land could not be used for any purpose other than the Railway purposes. The employee of Pakistan Railways also cannot get themselves allotted the land of the Railways, which in law is only meant for the operation and use of Railways. Thus the Secretary, Pakistan Railways is directed to issue notices to all the occupants of the Railway land to vacate the same. Such notices shall be issued within a period of two weeks from today to each of the occupants of the Railway land. In the meanwhile, both Pakistan Railways so also Government of Sindh shall chalk out a program for relocation of the persons affected by this ejectment and will settle them in a decent manner, as is possible providing facility of water, electricity, gas, sewerage, road connectivity, schools, hospitals, colleges, play grounds and parks etc. but in the first place, action should be taken for removal and resettlement and securing the land obtained from removal of-encroachments.

11. It is informed by the learned Advocate General, Sindh that some interim orders have been passed by the High Court of Sindh in Suit No.540/1991 regarding these lands. It appears that these orders have been obtained from the High Court through misrepresentation by unscrupulous persons and land grabbers and also by the Pakistan Railway Employees Co-operative Housing Society, on the basis of an unregistered agreement of lease, and false and fictitious documents. Prima facie, it appears that those interim orders are based on fraudulent forged, fabricated and illegal documents and thus, we do not consider that interim orders by any means creates a legal obstruction or any sort of bindingness upon this Court, more so, when this Court exercises jurisdiction under Article 184(3) of the Constitution of Pakistan. However, let notice be issued for next date of hearing to the President and General Secretary of the Pakistan Railway's Employees Co-operative Housing Society to appear before the Court and explain their position as to how they can maintain Pakistan Railways Employees Co-operative Housing Society on the Railway land.

12. The Railway Authorities so also the Government of Sindh are allowed to carry out the operation of removal of encroachments from all Railway lands, except the land of Pakistan Railway's Employees Co-operative Housing Society, all over Karachi and such action be carried on with the aid and assistance of all security forces, that are available in Pakistan and it should continue unabatedly. Weekly progress reports in this regard shall be made available to the Court. This matter is adjourned to 06.03.2020, when the Secretary, Pakistan Railways, the Secretary Planning, the Chief Secretary Government of Sindh and the Attorney General for Pakistan so also Advocate General, Sindh shall appear before the Court to further deal with the issue. The report shall contain further development activities undertaken by the Pakistan Railways for revival and operation of the KCR for achieving the deadline noted above and also the exact areas of the Railway lands from which the encroachments have been removed. C.M.A. No. 74-K of 2020.

13. Notice to the Advocate General, Sindh and the Chief Secretary, Government of Sindh, who shall file a report giving solution of the issue raised in the application. C.M.A. No. 83-K of 2020.

14. Let notice of this application be given to the Secretary, Pakistan Railways. The Secretary shall file reply to this C.M.A. and such reply shall be with the approval of the Federal Minister of Railways.

15. We may note that the Federal Minister of Railways during the proceedings at Islamabad has made a statement that if this subject plot is allowed to be sold by the Pakistan Railways today the amount recovered from it can revamp the whole structure of the Pakistan Railways. C.M.A. No. 84-K/2020. 16, We have seen the contents of this application. The applicant-Muhammad Akhlaq Memon, despite being on Court notice has proceeded to Canada. No reply so far has been filed. Learned counsel for the applicant states that some reply has been filed but such has not been put up by the office. Notice of this application be issued to the Advocate General Sindh so also KMC, KDA, Commissioner Karachi and KPT.

17. It is stated by the learned counsel that Suits Nos.1520/2017 and 1516/2017, are pending in the High Court of Sindh, Karachi, regarding this very property. Let files of such suits be requisitioned from the High Court nd be attached with the present C.M.A. The office is directed to place, before the Court the record pertaining to Civil Appeal No.104-K/1981, which appears to have been decided by a judgment of this Court dated 14.09.1989. Such record also be attached along with the C.M.A. to considered on the next date. Adjourned to 06.03.2020. MWA/N-5/SC Order accordingly.