2001 PLP 87 (YLR)

2. In essence the grievance of the petitioner (Rehmat Ullah) is that his property is situated on the Kanganpur road and on the front of his property, respondents 5 to 11 have made encroachment on a public road in Khasra No. 140/1. Proceedings were taken under section 145 of the Cr.P.C. and the property of Hakim Ali and others was attached.

3. The learned Assistant Commissioner, Chunian, vide his order dated 12‑5‑2000, not only directed restoration of possession to Hakam Ali and others (the opposite party) but also directed the Illaqa Magistrate to move for the removal of encroachment on Khasra No. 140/1.

4. Feeling aggrieved, , respondents Nos.5 to 7 filed a revision petition which was allowed by the learned‑ Additional Sessions Judge, Kasur vide order dated 3‑10‑2000. He held that the learned Assistant Commissioner was not competent to determine right or title about the disputed property and the following observations were recorded:‑‑ "No doubt he was empowered to take action with regard to the encroachment, if any, after demarcation of the suit land, but this should have been done independent of this case after putting the parties on guards and in that case the parties would have been the Government (through the Highway Department and the present parties of this case). He is at liberty to exercise his powers as such, but otherwise than in these proceeding's after due notice to all concerned. " The said order is the subject‑matter of this writ petition.

5. Writ Petition No.24216 of 2000 has been filed by Hakam Ali. His case is that he is in possession of his own property. They District Council Kasur, the Highway Department, the Assistant Commissioner and the Resident Magistrate, Chunian wanted to demolish his property on the pretext that it was an encroachment. He (sic) Nazir Ahmad, Muhammad Ashraf (respondents 6 and 7 in Writ Petition No.21717 of 2000) filed a suit against, the District Council the Highway Department, the Assistant Commissioner, Chunian, Illaqa Magistrate and other revenue officials which was contested and was decreed vide judgment dated 24‑3‑1997 of the learned Civil Judge 1st Class, Kasur. It is further asserted that the question whether there was any encroachment on the public road in Khasra No.140/I was also duly examined in the light of the evidence produced in the said suit and it was held that there was no encroachment on. the aforesaid public road. It is asserted that despite the aforesaid judgment, the respondents in the writ petition were threatening to dispossess the petitioner and demolish his property on which Hakim Ali and two others filed a civil suit on 8‑9‑1997 in which the learned trial Court has issued a temporary injunction vide order dated 30‑6‑1998 against demolition of the property of Hakam Ali and others the plaintiffs in the said case. Hakam Ali has questioned the proceedings taken under section 145, Cr.P.C. by Assistant Commissioner, Chunian. It is prayed that respondents 1 to 5 should be restrained from demolishing the lawful construction of the petitioner.

6. The learned counsel for the parties have been heard. Sardar Shaukat Ali, Advocate who represents the petitioner in Writ Petition No.21717 of 2000 vehemently contends that the petitioner was not party to the civil suit filed by respondent Nos.5 to 7 and no finding, rendered therein was binding and operative qua the rights of the petitioner. It was next contended that in fact a Magistrate is fully competent to remove encroachment/obstruction from the public road under section 133 of the Cr.P.C. According to him, as a result of inquiries held in the matter, it has been found that, respondents 5 to 11 have encroached a part of the public road in Khasra No. 140/1, therefore, the direction of the learned Assistant Commissioner in the order dated 12‑5‑2000 was fully justified and the learned Additional Sessions Judge interfered on wholly unsustainable premises.

7. It may also be noted that one Zafar Ameen son of Bashir Ahmad, who was a defendant in the suit of respondents 5 to 7 which was decreed on 24‑3‑1997, had also approached this Court in Writ Petition No.21762 of 2000 for direction for the removal of the so‑called encroachment. This writ petition was withdrawn on 11‑1‑2001 to avail alternate remedy.

8. On the other hand, the learned counsel for Hakam Ali submits that by the judgment dated 24‑3‑1997, the question whether there was an encroachment on the part of a public road was also clearly decided in favour of respondents 5 to 7 and even presently, a suit for permanent injunction was pending in which the learned Civil Judge has already granted a temporary injunction. On the said premises he submits that the orders passed in the proceedings under section 145, Cr.P.C. had become redundant. According to him, the learned Additional District Judge had rightly directed restoration of possession in favour of Hakam Ali and others and had rightly set aside direction of the Assistant Commissioner for removal of the alleged encroachment.

9. I have considered the submissions made by the learned counsel for the parties. As far as the proceedings under section 145, Cr.P.C. are concerned Hakam Ali and others who were dispossessed were ordered to be put into possession. The question whether there was an encroachment on any part of the public right was beyond the scope of proceedings under section 145, Cr.P.C. which direction was rightly get aside by the learned revisional Court.

10. Although, Rehmat Ullah, petitioner was not party to the previous litigation and the judgment dated 24‑3 1997 is not binding on him yet prima facie, it establishes that there was no encroachment on Khasra No.140/I on which exists Kanganpur Allahabad Road. The effect of any interference by this Court will be to nullify the aforesaid judgment which cannot possibly be done through the present proceedings.

11. Be that as it may, the question whether respondent Nos. 5 to 11 have encroached a part of the public road is otherwise, a question of fact, resolution o which will require a detailed inquiry which cannot be undertaken in Constitutional jurisdiction.

12. I am, therefore, not inclined to interfere. Rehmat Ullah petitioner will be at liberty either to become party to the suit already tiled by respondents 5 to 7 or may take any appropriate proceedings to establish his right. It may also be observed that nothing said in this judgment will in any way, prejudice the pending litigation or any other proceedings which may be taken by the parties.

13. As far as Writ Petition No.24216 of 2000 is concerned, the learned Additional District Judge has already set aside the direction of the learned Assistant Commissioner for removal of the encroachment and in the suit filed by respondents 5 to 7 the learned Civil Court has already granted a temporary injunction against demolition of the property of Hakam Ali and others. This writ petition appears to have been filed only as a counter-blast to Writ Petition No.21717 of 2000 filed by Rehmat Ullah. Therefore, there is no occasion to issue the directions prayed for in this writ petition. 13‑A. For what has been stated above, both the writ petitions are dismissed with the above observations. Q.M.H./M.A.K./R‑65/L Petition dismissed