2010 PLP 333 (CLC)

SYED YAHYA ZAHID GILANI, J.

The petitioners/Tehsil Municipal Administration, D.I. Khan issued notice dated 25-3-1997 to respondents for demolishing shops allegedly constructed by encroaching upon the land of petitioners. The respondents, therefore, challenged the notice before District Judge D.I. Khan/Tribunal under the N.-W.F.P. Public Property (Removal of Encroachment) Act and succeeded to get the decree prayed for, declaring the aforesaid notice null and void, vide judgment dated 20-6-2005. Hence, this writ petition.

2. We have heard arguments of learned counsel for the parties and have gone through the record.

3. At the outset learned counsel for the petitioners sought permission for additional evidence on the ground that some documents could not be produced during evidence before the Tribunal as those were missing. The petitioners is a Municipal Organization and the plea is not convincing that is favourable record was missing and now after lapse of many years, the same has been traced out for production as additional evidence. Learned counsel for the respondent rightly resisted the prayer on the ground that such a document can be manipulated to fill up lacuna in the petitioners' case and it is not in the interest of justice to provide a party extraordinary latitude to improve his case by filling up lacuna. We, therefore, turn down the request for production of additional evidence.

4. We are conscious of the fact that in constitutional jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, we cannot sit on the impugned judgment as a Court of appeal as held in the case from Lahore jurisdiction Barkat Ali v. Ahmad Din and another 2006 CLC 527(c). Further, we are also conscious of the fact that we are not supposed to disturb reasonable findings of fact c arrived at by the trial Court/tribunal on the basis of evidence available on record to substitute our own findings, as held in the case of Syed Mazhar Hussain Shah through L.Rs. v. Member Board of Revenue Lahore and others 2006 SCMR 959(b). We are also mindful that there is marked difference in constitutional and appellate jurisdictions as held in the case from Lahore Jurisdiction in the case of Inshallah Khan and 10 others v. Sirbuland Khan and 3 others 2004 CLC 1689. Therefore, learned counsel for the petitioner was asked to point out any illegality during the proceedings of the Tribunal or in the judgment.

5. It was argued that learned Tribunal appointed a Local Commissioner to visit the spot and give report after local investigation The petitioners/defendants raised objections on the report of Commissioner dated 26-3-2003 submitted by Mr. Ghulam Muhammad Sappal Advocate, D.I. Khan and the Local Commissioner was examined in the witness box but the Tribunal has not given decision on the objection of the petitioners.

6. This ground could have been material- if the learned Tribunal had decided the case solely on the report of Commission. We have seen the record and found that the findings of the Tribunal are based on the bulk of evidence on record and a very causal reference has been given to the aforesaid report of Commission in the impugned judgment which also, impliedly means that the objections were not upheld.

7. There is plethora of evidence on record produced by the respondents in the proceedings of the Tribunal, the prominent being the sanction and permission of the petitioners to construct the disputed shops according to the site plan which was approved by the concerned branch of T. M. A, petitioner herein. This being on the one hand, it has been very rightly held by the learned Tribunal that the petitioners herein failed to prove the validity of notice by bringing on record cogent evidence to show the actual width of the street and the encroached portion thereof, on the basis of municipal record, failing which, the continuous possession of the respondents would be the solid indicia of their ownership. This is a very strong ground and would prevail obviously, because the petitioners-T.M.A, has staff to check encroachments at their inception and to disapprove the site plans for new constructions on the encroached lands but none of the concerned branches objected at the relevant moments.

8. Consequently, we find the conclusions of learned Tribunal sound, and based on evidence, which need no interference because the jurisdiction vested has been exercised in accordance with law. The writ petition is, therefore, found devoid of force and is dismissed. H.B.T./1/P Petition dismissed.