2012 PLP 2751 (YLR)

CH. MUHAMMAD YOUNIS, J.

Learned counsel for the petitioners contends that the petitioners are in possession of their properties situated at Railway Road Dinpur since long. They got allotted as well as purchased the said properties through allotment orders/ registered sale-deeds whereas the respondents intend to demolish their construction. In 1978 a suit was filed against the respondents and demarcation was carried out, after demarcation the encroachments if any were removed and the suit was dismissed as withdrawn. The properties of the petitioners have not been acquired for any public purpose so they cannot be deprived of the same unlawfully.

2. The learned counsel for the respondents vehemently opposed the writ petition and argued that the petitioners are encroachers. Due to their encroachment the construction of the road has been stuck up at the spot. The width of the road is 110 feet from Kazmi Chowk to Dokota Road whereas the width of the road in front of the shops of the petitioners is about 50 feet. The remaining area of the road has been encroached by them so they are not entitled to the relief claimed. The learned counsel for the respondents contended that the petitioners Nos.7 to 9 have already surrendered the encroached upon area. The disputed land was owned by the Central Government and was in possession of the Highway Department. The encroaches in connivance with some Revenue officials got some entries made in Revenue Record which were against law and facts as the transfer orders did not relate to the said khasra numbers. Moreover, the respondents have transferred an amount of Rs.29,05,206 to PTCL and Rs.19,03,750 + Rs.9,20,000 to MEPCO for removing of PTCL and electric poles from the alignment of the road. Due to the encroachment of the petitioners the construction of the road is stuck up and the general public is suffering a lot due to the illegal act of the petitioners. The respondents have no concern with the State land. Even otherwise the issue relates to factual controversy which could not be resolved in writ petition. The learned counsel for the respondents has referred 2011 SCMR 279 (Anjuman Fruit Arhtian and others versus Deputy Commissioner, Faisalabad and others) and 2004 SCMR 604 (Nemat Ali and another versus Malik Habib Ullah and others) and maintained that the question of fact could not be decided in constitutional jurisdiction.

3. I have considered the arguments advance from both the sides and have scanned the record.

4. A perusal of the site plan placed on the record shows that the petitioners have encroached upon the land of the road and according to the respondents it is not the land which was allotted to them. No land of the road was ever available for transfer. A civil suit had already been filed in 1978 and demarcation had been made. Several persons including some of the petitioners were found to have encroached upon the land of the road. The encroachers themselves removed the encroachments except the present petitioners. Allotment of land to them in the middle of the road does not sound to the reason. The Civil Suit had been dismissed as withdrawn in 1984. Moreover, in the allotment/transfer order no khasra number is mentioned and no such description is given to establish that the said shops were situated in the khasra number wherein the road is situated. It involves factual controversy requiring evidence to be recorded. Such an exercise could only be undertaken by the Civil Court. The factual controversy cannot be resolved by invoking the constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in writ petition. In these circumstances there is no justification to restrain the respondents from construction of road for the welfare and utility of the general public who are suffering just due to the encroachment of the petitioners. So the writ petition along with the C.M. is hereby dismissed. KMZ/M-97/L Petition dismissed.