ISLAMABAD: The Supreme Court was requested on Monday to constitute a full court consisting of all the existing judges to review its June 14 directive to the Sindh government to clear both sides of Karachi’s Gujjar and Orangi nullahs of human settlements — an order which resulted in the dispossession of over 50,000 people.
The request was made in a set of four similar applications, moved by counsel Faisal Siddiqui on behalf of an individual, Naimutallah Khan, the Pakistan Railway Employees Cooperative Housing Society, the management of Alladin Park and some officers of the Karachi Development Authority (KDA).
All the applicants requested Chief Justice of Pakistan Gulzar Ahmed to consider forming a larger bench of the Supreme Court to hear the petitions.
The Pakistan Railway Employees Cooperative Housing Society moved the application since the directive questioned the legality of a piece of land leased out to it by the federal government.
The application argued that the Supreme Court had adjudicated upon, and upheld, the legality of the lease, title and possession of the applicant on railways land through a decision delivered on Nov 11, 1991.
‘Fundamental and complex questions’
The petition explained that “fundamental and complex questions” of constitutional and legal importance were at issue. One of the questions, for instance, is: what were the jurisdictional and procedural parameters (scope, powers, limitations, rights and duties) in the exercise of jurisdiction under Article 184 (3) of the Constitution.
Second, is there a criterion for the structuring of judicial discretion about the choice of cases of public importance involving the enforcement of fundamental rights under Article 184(3). “What are the parameters, rights and extent of due process rights of affected parties in the exercise of jurisdiction under Article 184(3) and what is the scope of the exercise of review jurisdiction under Article 188 of the Constitution.”
The petition moved by Naimutallah Khan highlighted that the June 14 order had resulted in the demolition of thousands of houses and buildings, causing dispossession of over 50,000 people without any immediate compensation or rehabilitation.
The apex court had given the demolition order for cleaning of the Gujjar and Orangi nullahs, as well as for the construction of 30-feet wide roads on both sides of the nullahs.
The petition pleaded before the court to set aside its June 14 order asking the Sindh government, the National Disaster Management Authority (NDMA) and Karachi’s Administrator to ensure that all lands on both sides of the Gujjar and Orangi nullahs and the right of way were cleared.
By naming 43 respondents, the petition pleaded that these applicants were legitimate leaseholders who had approached the apex court in order to be treated in accordance with the law.
The petition argued that the June 14 order was silent on whether demolitions could be conducted by the government for building roads on both sides of the Gujjar and Orangi nullahs.
The petition contended that the Supreme Court had not directed the government to demolish any house or building at the two places in a verdict delivered on Aug 12 last year.
The court’s silence on the matter has allowed the authorities to carry on demolitions without disclosing any plan, based on law, the applicants observed.
In view of the fundamental rights guaranteed under Articles 23 and 24 of the Constitution, no acquisition of property through demolition, for purposes of building a road could take place, except under the Land Acquisition Act of 1894.
This means the June 14 order suffers from errors apparent and floating on the face of the record, the review petition contended.
The order, the petition further argued, was based on unverified presumptions. These “unverified presumptions” are a general order regarding the clearance of land for both Gujjar and Orangi nullahs and its right of way, without any finding or determination as to the length and breadth of such nullahs and their right of way.
This determination was critical because without an authentic mapping of the dimensions of the two nullahs, no general order could be passed for wholesale demolition of houses and buildings.
In other words, only those structures could be demolished which were encroaching on the nullahs, the petition said.
Published in Dawn, September 21st, 2021