2021 PLP 1771 (CLC)

KHADIM HUSSAIN M. SHAIKH, J.

Through this petition, petitioners, 1) Pardeep Kumar, 2) Kanwar Kumar Nihalani, 3) Sohail Ahmed, 4) Dileep Kumar, 5) Manohar Lal, 6) Bhajan l,al, 7) Pardeep Kumar Ahuja, 8) Anwar Hussain (since dead) through his L.Rs. Syed Sultan Husaain and others, 9) Lachhman Das, 10) Parmanand, 11) Mst. Safdari Masood, 12) Pardeep Kumar, (since dead) thorugh his L.Rs. Indera Bai and others, 13) Aneel Kumar, 14) Athar Ali Shaikh, 15) Balram Das, 16) Abdul Karim Rajpar, 17) Ajeet Kumar and 18) Moula . Bux have prayed as follows: a) That on the consideration of facts and grounds mentioned above, the respondents may be restrained from conducting Auction of 23 shops of Railway Market No.02, Larkana in hurry and slipshod manner on 17.09.2019 in pursuance to Auction Notice published in daily Kawish dated.29.08.2019 (Annexure-A). b) That this Honourable Court may graciously be pleased to direct the respondents to consider the request of petitioners for further extension of 05 years, for which the petitioners are ready to pay the dues/charges. c) That this Honourable Court may graciously be pleased to grant status quo and restrain respondents from conducting Auction of 23 shops of Railway Market till disposal of main petition. d) That the costs of the petition be awarded to the petitioners. e) That any other relief deemed fit and necessary in the circumstances of the case be awarded to the petitioners.

2. Learned advocate for the petitioners has mainly contended that out of 18 petitioners, petitioner No.5 Manohar Lal, petitioner No.6 Bhajan Lal and petitioner No.16, Abdul Karim Rajpar are in possession of two (02) shops each, petitioner No.17 Ajeet Kumar Ahuja is in possession of three (03) shops and whereas all the rest of the petitioners, numbering fourteen (14) are in possession of one (01) shop each, all situated in Larkana Railways Market No.2, near Railway Station Larkana, belonging to the Railway Department, which were given to them in lease by the respondents through open auctions initially for the period of 10 years, which ended in respect of Sixteen (16) shops in the year 2012, for one shop in the year 2013 and for six (06) shops in the year 2014; that lastly the period of lease was extended for five (05) years, which expired in May 2017, October 2018 and February 2019 respectively, but all the petitioners were orally allowed to continue their occupation over the aforesaid 23 shops belonging to the Railway Department by the respondents No.1 and 2; that now all the subject 23 shops are scheduled to be leased out through an open Auction on 17.09.2019 and such Auction Notice has been published in newspaper daily Kawish dated 29.08.2019, therefore, the petitioners have filed this petition for protection and grant of injunction against the respondents, restraining them from conducting the Auction in respect of the lease of the subject 23 shops and for extension of the leased period. On a query learned counsel for the petitioners has conceded that the petitioners are in occupation of the subject 23 shops of Railway Department without any valid document legalizing their possession over the subject shops of Railways Department. In such view of the matter, we are of the considered view that the subject 23 shops of potential value located in heart of City Larkana are in unauthorized possession of the petitioners, who have no legal character or any right over them, which admittedly belong to the Railways Department. It is worthwhile to mention here that it is incumbent upon the petitioner exhausting remedy under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, to establish that he has legal right over the subject property and that such right is so clear that leaves no room of doubt or any controversy, and the exercise of extraordinary constitutional jurisdiction under Article 199 of the Constitution is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority is floating on the surface, which can be established without any elaborate enquiry into the questions involved in the matter; moreover, the writ jurisdiction is undoubtedly discretionary and extraordinary in nature and it being equitable relief is available, even otherwise to a party who he comes in Court with clean hands.

5. Patently, the petitioners, who have no legal character or any right over the subject 23 shops, by filing this petition, have attempted to have some favourable orders as to thwart the auction proceedings and to perpetuate their unauthorized possession over the subject 23 shops in the garb of that order, by suppressing the real and material facts, which adversely reflects upon them. Under these circumstances, we are of the humble view that this petition, besides being not maintainable, seems to have been aimed at to abuse the process of law. The learned advocate for the petitioners has also not been able to satisfy the Court as to the maintainability of this petition, which is liable to be dismissed. These are the reasons of short order announced by us on 11.09.2019, whereby this petition was dismissed along with the other listed applications. SA/P-11/Sindh Petition dismissed.