2006 PLP 751 (MLD)

CH. IJAZ AHMAD, J.

The brief facts out of which present arises are that the maternal grand-mother of the petitioner namely Mst. Chiragh Bibi was owner of house measuring 4 Kanals and 4 Marlas consisting of a composite residential room along with courtyard. On the death of original owner, the property in question was devolved upon the legal heirs of original owner. The land in question was acquired by the respondents. The petitioner and other legal heirs of original owner, submitted application before the respondents for the adjustment of their plots, in terms of scheme of the respondents, which was dismissed. The petitioner being aggrieved filed Writ Petition No.15886 of 1993, which was disposed of by this Court vide order dated 13-2-2001. The respondents in obedience of direction of this Court, passed the impugned order on 1-9-2004. The petitioner being aggrieved filed this Constitutional petition.

2. The learned counsel for the petitioner submits that the impugned order of the respondents is hit by Article 25 of the Constitution, as the respondents have adjusted the plots to other legal heirs of original owner. He further submits that the respondents are duty bound to act in accordance with law. He further submits that action of the respondents is not in consonance with ground realities and policy of the respondents.

3. The learned legal advisor of the respondents entered appearance that the writ petition is not maintainable.

4. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.

5. It is better and appropriate to reproduce the operative part of impugned order to resolve the controversy between the parties:-- "I have gone through the record and the site report and have reached the conclusion that the orders of the then Director-General., L.D.A. dated 4-11-1993 as to the cancellation of adjustment are strictly in accordance with law as the structure of petitioner did not qualify for adjustment as it did not fulfil the requirement being against the adjustment policy. I, therefore, uphold the previous decision regarding cancellation of adjustment of the structure and the petitioner is directed to apply for exemption of plot in lieu of her holding in Sabzazar Housing Scheme which will be granted' in accordance with law/rules/exemption policy of Sabzazar Scheme subject to valid title/ownership." Mere reading of the aforesaid operative part, clearly reveals that the case cannot be decided without recording evidence of the parties, which recorded by this Court under Article 199 of the Constitution. In case, the contents of writ petition and impugned order be put in juxtaposition, then it brings the case of the petitioner in the area of disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact while exercising power under Article 199 of the Constitution. It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of the Tribunals below while exercising power under Article 199 of the Constitution, as per principle laid down by the Division Bench of this Court and by the Hon'ble Supreme Court in the following judgments:-- Board of I & S.E. Lahore v. M. Musaddaq Naseern (PLD 1973 Lahore 600). Syed Azmat Ali Shah v. Chief Settlement and others (PLD 1964 SC 260). In view of the aforesaid circumstances, Constitutional petition is not maintainable in the presence of alternative remedy as per law laid down by the Hon'ble Supreme Court in Ch. Muhammad Ismail v. Fazalzada, Civil Judge and others (PLD 1996 SC 246). However, the petitioner is well within his right to avail alternative remedy by filing of suit against the respondents for resolution of disputed question of fact. With these observations, the writ petition is dismissed. H.B.T./R-171/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.