2018 PLP 1038 (YLR)

KHADIM HUSSAIN M. SHAIKH, J.

Petitioners Niaz Ali and others have filed this petition, mainly contending therein that there is an open space, near Dargah Muhammad Shah Maki, which is reserved for Eid Gah, where the people of the locality offer Eid Namaz and Janaza Namaz and Uris festivals of Hazrat Muhammad Shah Maki are also done therein and an Alam is also erected there. The respondent No.2 has leased out lands, plots, shops and houses belonging to the Auqaf Department and now the respondents have started commercial project in the name of Engineering Wing, Hyderabad on the aforesaid land without approval of layout plan from HDA or other relevant office viz Sindh Building Control Authority [SBCA].

2. The respondent No.2 has filed his written statement, wherein, he has denied all the allegations and claims leveled by the petitioners in the petition. It is further averred therein that as a matter of fact Dargah Hazrat Muhammad Shah Maki is very old one and the respondent No.2 / Chief Administrator Auqaf being custodian, is responsible to facilitate the zaireens/ visitors of Dargah Muhammad Shah Maki. The petitioners have no right or legal character to interfere into the management of the Dargah and its adjoining Waqaf properties/open land. The open land around the Dargah is used for zaireens/visitors during Urs festivals days and not for other purpose as wrongly alleged by the petitioners. It is further averred that the Auqaf Department had established dispensary consisting over two rooms, a doctor, nursing staff, medicines and first aid etc., are available for all zaireens/ visitors of the Dargah, but the present facilities being insufficient, the Auqaf Department, in order to facilitate in a better way has undertaken the construction of the subject development scheme, costing Rs.5:505 [million], under Annual Development Program with the approval of Government of Sindh, and there is no shopping center in the premises of the Dargah as wrongly alleged by the petitioners. The petitioners, who are neither licensees nor lessees, but are land grabbers with intent to usurp the subject Waqaf Property, have been creating hindrance in the construction work of subject scheme comprising four rooms, lavatory, store room, verandah meant for the staff of dispensary, doctor, health services in two rooms and two rooms for the staff of Auqaf Department, Engineering Wing, for maintenance, repairs, construction of Auqaf properties and to further facilitate zaireens/visitors and to save the Waqaf properties from the encroachments by the land grabbers. It is further averred that PC-1 with site plan etc., has already been verified and approved after completing all the codal formalities and P&D and Finance Departments, Government of Sindh, have also released funds for completion of the subject project. The Auqaf Department and the zaireens/visitors will suffer irreparable loss if this public benefiting project is stopped and further the annual budget funds will also lapse. The petition filed by the petitioners being baseless, vexations and malicious is not maintainable under the law. Record reflects that no rejoinder in denial to the contents of the written statement has been filed by the petitioners.

3. The learned advocate for the petitioners reiterating the contents of the petition, further contends that the respondents are raising construction of the subject building illegally and without site plan. He therefore, prays that the construction work on the subject Waqaf Property may be stopped, permanently restraining the respondents from raising any construction therein.

4. The learned advocate for the respondents Nos.1 and 2 reiterating the contents of the written statement further submits that the petitioners, having no locus standi to file the petition, are not the aggrieved persons; and, that the petitioners have filed this petition with mala fide intention.

5. The learned Addl. A.G. has contended that the subject property belongs to the Auqaf Department; that the subject development scheme for the benefit of public at large including zaireens/visitors of Dargah Hazrat Muhammad Shah Makki, is being carried out, so as to enhance and advance the facilities including the facility of medicines etc., which does not, in any manner, affect any person of the locality; and, that the subject Waqaf Property, which is located in the heart of Hyderabad City, is of a potential value and, thus, the land grabbers including the petitioners, having evil eye over the said Waqaf Property, are trying hard to stop the completion of subject scheme, so as to achieve their designs by making encroachments thereon. He, therefore, prays for dismissal of the petition.

6. We have considered the arguments of the learned counsel for the petitioners, learned counsel for the respondents Nos.1 and 2 and learned Additional Advocate General and have gone through the material placed on record.

7. From a perusal of the record, it would be seen that the petitioners do not claim themselves to be lessees or licensees of the subject Waqaf Property and they claim themselves only to be the residents of the locality; admittedly the property in question, where the subject development scheme is being carried out for the benefit of public at large including zaireens/visitors of Dargah Muhammad Shand Maki with the approval of the Government of Sindh, under Annual Development Program, is Waqaf Property and the petitioners have no right or title or concern whatsoever with the said property and nothing has been brought on the record by the petitioner seven to substantiate the allegations leveled by them in their petition, which even otherwise have been specifically denied by the respondents in the written statement. It is worthwhile to mention here that it is incumbent upon the petitioner exhausting remedy under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, to establish that he has legal right over the subject property and that such right is so clear that leaves no room of doubt or any controversy, and, the matter involving the disputed questions of facts cannot be entertained and/or allowed to be agitated in writ jurisdiction, for, the exercise of extra ordinary constitutional jurisdiction under Article 199 ibid is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority is floating on the surface, which can be established without any elaborate enquiry into the questions involved in the matter. Manifestly, the matter in hand, in the wake of the divergent pleadings of the parties, is also involving factual controversy and intricate disputed questions of fact, which cannot be gone into the Constitutional Petition under Article 199 ibid; and, thus, this petition is not maintainable. Reliance is placed on the case of Dr.Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), wherein, the Hon'ble Supreme Court of Pakistan has held that:-- "

10. Besides that what has been discussed herein above there are certain disputed questions of facts which cannot be investigated while exercising Constitutional jurisdiction. "It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy... High Court will not go into disputed questions of fact in Constitutional jurisdiction...In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse." (M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563 and Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344). In the case of N.W.F.P Public Service Commission and others v. Muhammad Arif and others (2011 SCMR 848), the Hon'ble Supreme Court of Pakistan has held that:-- "9....It is well settled by now that "the right which is the foundation of an application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right, personal or otherwise, on which the application is based is established, no order can issue under Art. 199." (Muntizma Committee v. Director K.A. PLD 1992 Kar. 54, Mahmoona v. Ilam Din PLD 1984 Lah. 223, A.F. Farms and Industries v. Development Commr. AIR 1953 Assam 155, Mahboob Khan v. Deputy Commissioner AIR 1953 Assam 145 and Dineshcharan v. State of MB AIR 1953 Madh-B 165)." In case of Ijaz Hussain Suleri v. The Registrar and another (1999 SCMR 2381), the Hon'ble Supreme Court of Pakistan has held that "a matter necessitating inquiry into the case cannot be gone into the constitutional petition".

8. In view of what has been discussed above, we are of the considered view that this petition being misconceived, is not maintainable. The learned advocate for the petitioners has also not been able to satisfy the Court as to the maintainability of this petition. Accordingly, the petition is dismissed with no order as to costs along with the pending application M.A. No.17148 of 2016. The petitioners may avail the remedy, if any available to them before the appropriate forum in accordance with the law, if they choose so. MQ/N-3/Sindh Petition dismissed.