2017 PLP 214 (CLCN)

GHULAM QADIR LEGHARI, J.

Through instant petition, the petitioner has prayed as under:- a. That this Honourable Court may be pleased to set-aside the order dated 01.12.2015 passed by the respondent No.2. b. That this Honourable Court may be pleased to direct the respondents Nos. 6 and 7 to remove the encroachment done by the respondent No.1 from the street and open the entrance gate as well as sewerage system.

2. Record reflects that earlier to this petition, C.Ps. Nos. D-859 and 1515 of 2014 were disposed of with the consent of the parties vide order dated 29.7.2015 whereby the respective parties agreed to refer the matter to Encroachment Tribunal, Mirpurkhas to decide the same within a period of one month.

3. Through instant petition, the petitioner has challenged the order dated 1.12.2015. Being relevant paragraphs 2, 4 and 5 of impugned order are reproduced as under:

2. The report was called from concerned authorities, whereby the Mukhtiarkar Hussain Bux Mari, vide his letter No.S.M/542 dated 24.08.2015, reported that no map of Mumtaz Colony, Mirpurkhas is available in Taluka Office and further reported that the matter pertains to Municipal Committee Mirpurkhas. This Tribunal then ordered Deputy Commissioner/Director Anti-Encroachment Cell, Mirpurkhas to visit the site himself and remove illegal encroachment upon the government land, if the opponent is found in illegally occupy of government land vide this office letter No. TAE/71/dated 15.09.2015. The Assistant Commissioner Hussain Bux Mari, reported that opponent had made encroachment which resulted in close of drainage system and main gate entrance but Taluka Municipal Officer Mirpurkhas, is deliberately avoiding to get resolve the matter. 3.

4. The case come up on 24.11.2015 for hearing. Both the parties are present along with their advocates and heard them. The Anti-Encroachment Inspector, Municipal Committee, Mirpurkhas appeared personally and stated that he is not able to demark the position of land without map of Mumtaz Colony Mirpurkhas, whether there is any encroachment on government land or not.

5. The burden was upon the petitioner to prove that the opponent has made encroachment on government land, therefore, in these circumstances, it cannot be said that the opponent has encroached upon the government land. The complaint, therefore, stands disposed of accordingly.

4. At the outset, learned counsel for the petitioner contends that the petitioner has been deprived from his basic right of amenity and the drainage line of the house of the petitioner has also been blocked by erecting wall hence the petitioner is suffering great hardship as the drainage water is pouring in his house. Comments filed by Mukhtiarkar also reflect some factual aspect inspite of that learned Judge of Anti-Encroachment Tribunal failed to exercise his powers.

5. In contra, learned counsel for respondent No.1 contends that Public Encroachment Act (Removal of Public Property) is not applicable in this case as the dispute is between uncle and nephew which is purely of civil nature. He further contends that in writ jurisdiction findings of Tribunal cannot be reversed by this'court by relying upon the case of Muhammad Safdar Dogar v. Province of Punjab (2003 YLR 1597). Issue before this court relates to the factual controversy which cannot be resolved by this court as the same requires evidence which is not permissible in writ jurisdiction.

6. Learned A.A.G. contends that the issue pertains to the Municipal Committee as per comments of Mukhtiarkar hence it would be just and proper to direct the concerned authorities whether such issue falls within the above referred law or is to be governed by Anti-Encroachment Act.

7. Heard and perused the record.

8. It is surfaced that by order of this court, the Additional Registrar of this Court carried out site inspection. Such report speaks: "...it is found during site inspection that the disputed piece of land was a way to home of the petitioner, which is presently seen blocked by a wall erected on face of the door of the petitioner's home. It has further been found that the disputed piece of land available before the then door of the petitioner's and present door of the respondent's home has also been blocked by erecting a wall with a door from other side of the street".

9. We have also perused the comments filed by Mukhtiarkar. It would be conducive to refer the reply to paragraphs 3, 5 and 10 which are as under:-

3. The sewerage/Gutter system of the portion of Maqbool Ahmed are closed by Respondent No.01 (Abdul Qayoom). Some portion of street adjacent to subject house are also encroached affixing a wall and said portion merge with their house portion by Respondent No.01 (Abdul Qayoom) situated in Mumtaz Colony (Private Colony).

5. The Mukhtiarkar (Revenue) Respondent No.04 has submitted report to the Honourable Court vide this office letter No.378 dated 03.07.2015 and after visiting the site, it revealed that the way of entrance of the lady applicant's house was blocked due to sewerage water and some encroachment. The drainy/sewerage water was entering in the subject house from the main entrance gate. Hence, the Honourable Court was requested that the Taluka Municipal Administration Mirpurkhas may be directed for immediate removal of encroachment and clearance of the blocked surface drain.

10. The Respondent No.04 (Mukhtiarkar, Revenue, Hussain Bux Mari) has submitted his report to the Anti-Encroachment Tribunal Mirpurkhas that the site has been visited with Supervising Tapedar. The matter is between the parties. There is no map of colony is available in this office. The map of colony may be in the office of T.M.A. Mirpurkhas. There is a issue of stoppage of drainy/sewerage water, which purely pertains to T.M.A. Mirpurkhas for running of sewerage water. A wall is also constructed near sewerage line on the site.

10. We are in agreement with settled proposition of law that that factual controversy cannot be resolved in writ jurisdiction but this proposition shall not operate in a case where the legal right of a party either stands determined or prima facie requires no evidence, being a pure question of law of enforcement of a fundamental right. Reference in this regard can well be made to the case of Government of Punjab v. Crescent Textile PLD 2004 SC

108. The relevant portion(s) thereof are reproduced hereunder:-

15. The arguments that a number of questions of facts were involved in the case which were required to be decided, therefore, the respondent-writ petitioner should have been directed to seek alternate remedy of filing suit, for evidence to determine disputed questions of facts could not be recorded within the scope of Constitutional jurisdiction under Article 199 of the Constitution has also no force though there can be no cavil with the general proposition of law as contained in this argument.......Besides, availability of alternate adequate and efficacious remedy does not have adverse effect on the jurisdiction of the High Court to entertain petition under Article 199 of the Constitution whereas it is relevant only to decide whether discretion vested in the Court under the said Article should or should not in a particular case in the attending circumstances be exercised.

11. In the instant matter, the mere plea of factual controversy with reference to relationship of uncle and nephew shall not be sufficient to prima facie show that matter requires evidence. The back-ground of the matter, including report of concerned officials and Additional Registrar of this Court, leaves nothing ambiguous that there is encroachment on part of the private respondent which even resulting in blocking the drainage and way/access for petitioner. Here, it would be relevant and material to refer that term 'life', as used in the Article 9 of the Constitution, shall include all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. Reference may be made to case of Arshad Mehmood v. Government of Punjab PLD 2005 SC 1953. The right to have a proper drainage and free access to house do fall within meaning of 'fundamental rights' therefore, a situation where prima facie, attending circumstances thereof, speak infringement of fundamental rights of an individual, this Court can come for rescue by giving appropriate directions within meaning of Article 199(1)(a)(i) of Constitution.

12. The record further shows that referred portion(s) of such reports even indicate that it was recommended for removal of such blockage/encroachment but matter is still pending by shifting responsibilities which cannot be approved particularly where encroachment is not disputed. Prima facie record reflects that there is blockage of drainage causing prejudice to certain legal rights of petitioner therefore, irrespective of the question whether this falls within the scope of Anti-Encroachment Ordinance or encroachment over rights of an individual, the judicial propriety demands that such failure or negligence on part of officials, costing infringement of certain legal rights, cannot be left un-noticed. It is not disputed that area falls within domain of Municipal Committee, Mirpurkhas the Deputy Commissioner is the Administrator of Municipal Committee. Accordingly, the Deputy Commissioner, Mirpurkhas is directed to constitute a committee comprising of Mukhtiarkar concerned and officer of Administrator TMA Mirpurkhas to examine the site; call maps from all the concerned authorities and ensure that there is drainage plan of Mumtaz Colony and such facility is provided to all the inhabitants of that area. The Deputy Commissioner and committee shall also ensure that the encroachment, causing blockage or difficulties to petitioner are removed. Such exercise shall be completed within fifteen (15) days with compliance report thereof. In case such map is not available even the Deputy Commissioner shall provide the mechanism by directing the Municipal Committee with regard to drainage of that colony. The Deputy Commissioner shall also ensure removal of encroachment if any on the main gate of petitioner with compliance report through Additional Registrar of this court.

13. This petition stands disposed of. ZC/M-139/Sindh Order accordingly.