P L D 2006 Supreme Court 341 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C J.

Petitioner seeks leave to appeal against judgment dated September 21, 2005 passed by High Court of Sindh at Sukkur Bench.

2. Precisely stating facts of the case are that respondent Sajjadullha Qureshi filed C.P. No.D-288 of 2005 against the petitioner and official respondents for ensuring that construction of the petrol pump by the petitioner should be in accordance with the approved building plan on the land owned by him. Assertion of the respondent was that encroachment has been made by the petitioner on the public streets, on the pretext that site of petrol pump was the part of his two plots, bearing, C.S. No.581/18 and 581/35. Learned High Court, to resolve the controversy, appointed commissioner with direction to him to visit the site and take measurements to ascertain as to whether encroachment has been made by the petitioner .on public street. The Commissioner/Additional Registrar of High Court of Sindh, Bench at Sukkur., in his report dated 20th September 2005 stated that petitioner is owner of two plots, and he had made encroachment on the public streets to the extent of area of 555 Sq. feet adjacent to his Plot No.CS.581/18 and an area of 1-1/2 feet in width and 48 feet in length adjacent to his Plot C.S.No.581/35. On receipt of the report, order dated 21st September, 2005 was passed, directing the petitioner to confine his construction activities within the Plot No.CP.S.581/18 and construction beyond that plot shall be removed by him within the stipulated period given in the short order, failing which T.M.O., Sukkur, Municipal Corporation was 'directed to remove the encroachment within two days with police aid if needed.

3. Learned counsel stated that petitioner is running business of petrol pump from 1990 and at that time there was no public street therefore, High Court may have not directed him to remove the encroachment as according to him the construction of petrol pump is being made within the area owned by the petitioner.

4. We are not inclined to agree with the contention of the learned counsel, in view of the report of the Local Commissioner, reference of which has been made hereinabove, contents whereof have also not been disputed by the petitioner, thus we are of the opinion that construction is being raised by the petitioner by making encroachment on the public street and under the circumstances, the High Court had rightly issued the writ.

5. Thus for the foregoing treasons, we are of the opinion that petitioner is not entitled for any relief and as he has resorted to frivolous litigation, therefore, the petition is dismissed with special costs of Rs.50,000 under Order XIII, rule 5 and Order, XXVIII, rule 3 of the Supreme Court Rules, 1980 read with 1985 SCMR 1226, which will be deposited by him within seven days with the Registrar of this Court, who shall pay it to Supreme Court Bar Association. At this Mr. Gul Zarin Kiani Senior Advocate Supreme Court Qazi Muhammad Jamil, President Supreme Court Bar Association and Ch. Arshad Ali, Advocate Supreme Court (Secretary Finance) stated that they will pay this amount to earthquake affectees. Order accordingly. The petitioner is further directed to remove the encroachment forthwith, failing which Inspector General of Police of the Province of Sindh is directed to register a criminal case against him and after conducting investigation, Challan should be submitted in the Court of Law. Court seized with the matter shall dispose if of within a period of six weeks and copy of the judgment shall be sent to the Registrar for our perusal in Chambers. M.H./S-9/S????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.