KARACHI, Sept 9: The Sindh High Court dismissed on Tuesday a petition challenging a compromise in respect of the 62-acre Kidney Hill Park but allowed the petitioner organization to institute a suit as the issue involved a factual controversy.
The kidney-shaped hilly area was declared a park in the early 1960s but the Overseas Pakistanis Co-operative Housing Society claimed that it was allotted to it by the Karachi Development Authority, since merged into the city district government. The dispute was litigated for decades without any work on the proposed public park till a compromise was reached between the claimant society and the city district government in the Supreme Court in 2006. The proceedings were joined by the non-governmental organization Shehri-Citizens for Better Environment, which pressed for maintaining the amenity status of the plot in the public interest.
Under the compromise, the CDGK was given 20 acres for laying a park while 40 acres were allocated to the society for allotting residential plots to its members. One acre was to remain with the Karachi Water Sewerage Board, which earlier had eight acres for constructing a reservoir.
Shehri, however, challenged the compromise in the high court as the CDGK and the housing society could not reach a settlement in derogation of law. It said the compromise was reached behind its back though it was a bona fide party to the dispute. The law was now well entrenched that an amenity plot could not be converted into a commercial or residential complex.
Appearing for the petitioner organization, Advocate Abdul Rehman said the claimant society had fraudulently obtained a lease deed in its favour. In any case, once a plot had been earmarked for development of a public park, it could not be put any other use.
The housing society produced the lease deed and other documents to substantiate its claim. The city district government submitted through its counsel, Advocate Manzoor Ahmed, that it was interested in the development of the area so that it was saved from encroachments. The compromise was reached to end the prolonged litigation and protect whatever land could be saved for development of a park. He pointed out that according to the approved plan, the housing colony in the area would have a hospital, a mosque and other amenities. The CDGK wanted to start work on the 20-acre park in right earnest, he said.
Dismissing the petition for raising a factual controversy that could only be decided by recording of evidence, a bench consisting of Justices Azizullah M. Memon and Arshad Noor Khan advised the petitioner organization to file a suit to seek its remedy. The interim injunction granted against the impugned compromise was also vacated. The judgment, which was reserved by the bench that heard the petition, was announced by another division comprising Justices Munib Ahmed Khan and Rana Mohammad Shamim.
By another judgment announced by it, the bench asked the Karachi Building Control Authority to decide within two months the regularization application of the builders and developers of Greenbelt Residency adjacent to China Town in Clifton.
Shehri had challenged the 10-storeyed residential-cum-commercial complex as grossly violative not of the building and town planning regulations but also of the plan the respondent builders got approved by the KBCA. Advocate Abdul Rehman argued on its behalf that the unauthorized complex did not fall within the purview of any past regularization law or scheme and that no such law or scheme was in force or available to regularize it.
Representing the project, Advocate Khalid Jawed Khan said the building rules were ultra vires of the Sindh Building Control Ordinance of 1979. He cited a Supreme Court judgment of 2007 to assert that violations could be regularized if the nature and complexion of the sanctioned plan remained unchanged. He maintained that the deviations made by the builders were well within the essential parameters of the approved plan. There were other high-rise buildings in the area, he contended.
The court directed the KBCA to regularize the building within two months if permissible under the law.
Justice Mrs Qaiser Iqbal, meanwhile, issued a notice to the advocate-general for Sept 24 to consider the scope and application of the Illegal Dispossession Act, 2005. Advocate Khalid Imran submitted on behalf of Edward Henry Louis that he purchased a 215-square-yard plot in Jackson Bazaar, Clifton, from its rightful owner when an additional district and sessions judge of district south issued an eviction order against him at the instance of a third party. He said the ADJ’s order was repugnant to Section 7 of the Act of 2005. An order under the Act could not be issued during the pendency of civil proceedings in respect of the property. The ADJ was not competent to entertain the application.
Suspending the operation of the impugned order, the judge issued notices to the AG and the respondent party for Sept 24.
The petitions moved by 51 lawyers selected as assistant and deputy district prosecutors in grades 17 and 18 were adjourned to Sept 23 at the request of the advocate-general. A division bench comprising Justices Khilji Arif Hussain and Bin Yamin noted that the hearing had already been adjourned thrice and there would be no further adjournment.
The petitioners say they were duly selected by the Sindh Public Service Commission to the prosecutors’ posts earlier in February but the government had withheld their appointment and posting letters.
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