P L D 2011 Peshawar 164 (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner herein has asked for issuance of an appropriate writ directing the respondents to take steps to redress his legitimate grievances including access to his lands. by constructing culverts. He has further asked for a restraint order regarding erection of barbed wire alongside the road.

2. The petitioner in support of his claim submitted that the respondent No.4 through an illegal and unlawful acquisition has damaged his remaining property by making changes in approved plan of the approach road of Kohat Tunnel and thereby has blocked petitioner's access to the main road causing irreparable loss to the petitioner's property and said changes in the approved design of the said road has put the life of petitioner and his family members at risk.

3. As against that, the learned counsel for the respondents 3 and 4 submitted that the approach road and culverts were constructed in accordance with the approved plan. The underpasses on the approach road were built according to the feasibility of the project and by keeping in view the demands of the local residents. Maximum care was taken to facilitate all the landowners whose lands were affected in this project. He further submitted that the allegations levelled by the petitioner are baseless as comprehensive measures were adopted to safeguard the life and property of the inhabitants of the area. His next contention was that the matters alleged herein being factual in nature, cannot be looked into in exercise of constitutional jurisdiction by this Court.

4. The petitioner himself and the learned counsel for the respondents were heard and record of the case was perused.

5. The record of the case would reveal that certain lands were acquired for the construction of approach road for Kohat Tunnel1 including the lands of the petitioner. The petitioner had also raised his objections regarding determination of compensation of the acquired property and. had approached this Court through Constitutional petition (Writ Petition No.227 of 2001) which was disposed of with the consent of both the parties for re-assessment 'of compensation of the acquired land. After re-assessment process in the light of decision of this Court in the above said constitutional petition, the petitioner availed all his remedies available to him in the hierarchy working under the FCR and then also challenged those decisions through a separate constitutional petition bearing Writ Petition No.394 of 2009 which too, after hearing the petitioner, has been dismissed vide separate order of the even date.

6. The claim of the petitioner if seen in its entirety then what is surfaced is a claim of factual controversy which cannot be looked into or considered by this Court in exercise of its jurisdiction under Article 199 of the Constitution. Whether the acquisition process has severed his remaining lands or damaged the same or whether said acquisition had deprived him of his access to his other lands are the questions which have totally been controverted by the respondents. Quite apart from this, all the above and similar other questions can only be answered after a proper inquiry into the facts by recording pro and contra evidence of the parties which is outside the domain of this Court in its constitutional jurisdiction. Such an exercise is only possible by a competent Court of law having plenary jurisdiction in the matter. The extraordinary constitutional jurisdiction of this Court under Article 199 of the Constitution is equitable and discretionary and is to be exercised only where substantial rights of a party have been invaded in flagrant violation of law and which can be established without any comprehensive inquiry into the facts. Moreover, the other important aspect of the case also cannot be overlooked. The petitioner is the resident of tribal area and the matter under consideration also pertains to the tribal area. In such a situation our hands are once again tied and we are afraid we cannot stretch over hands for the redressal of grievances of petitioner as Article 247(7) of the Constitution bars the exercise of jurisdiction of the Supreme Court and the High Courts. For the redressal of grievances of the petitioner, a hierarchy is working under the FCR which has the exclusive jurisdiction in the matter and which can accordingly approached if need be. Besides, the previous decisions of the apex Court given time and again like in the case of "Qaum Bangash v. Qaun Turi (1991 SCMR 2400) and Shaukat Khan v. Assistant Political Agent (PLD 2002 SC 526), the apex Court in its recent decision dated 13-5-2010 in C.Ps. Nos.197-P and 198-P of 2009 titled Kabul Khan and others v. Muhammad Umar Khan and others has once again reiterated the same.

7. So, in this view of the matter, we are constrained to hold that this petition arising out of factual controversy and for want of jurisdiction cannot be entertained by this Court. Hence, instant petition is dismissed as such. H.B.T./138/P Petition dismissed.