2014 PLP 1730 (CLC)

ABDUL MAALIK GADDI, J.

Through this Constitutional Petition, the Petitioner has prayed for the following relief(s):

PRAYER (i) This honorable Court may be pleased to direct the first respondent to vacate the petitioner's encroached land as is clearly shown in the sketch drawn by the Survey Superintendent, Karachi. (ii) That this honorable Court may be pleased to direct the third respondent to provide protection to the petitioner and remove the encroachers who are illegally dwelling on the petitioner's land. (iii) Furthermore, this honorable Court may be pleased to direct the third respondent to provide security and protection to the petitioner and or his men while they raise boundary wall over the said property. (iv) This honorable Court may be pleased to restrain the first respondent from further alienating the said property and direct the third respondent to ensure no further encroachment is done till pendency of this petition. (v) Any other relief. (vi) Costs.

2. Relevant facts for the disposal of this Petition are that the petitioner by virtue of registered Conveyance Deed dated 29-6-2009 bearing M.F. Roll No.U-634/6270, Photo Register, Karachi dated 18-2-2010, Registered No.313, Book No.1, dated 6-2-2010, with the Sub-Registrar-I, Gulshan-e-Iqbal Town, Karachi is the absolute owner of land measuring 2-38 (two acres and thirty eight ghuntas) out of Survey No.181 along with all leasehold rights and thereafter the said land was mutated in favour of the petitioner vide Entry No.21, in record of rights of Deh Okewari, Gulshan-e-Iqbal, Karachi vide Form-II, bearing No.102012 dated 4-11-2011. It is alleged that on 26-11-2012 and 28-11-2012 the petitioner made request in writing to Assistant Commissioner, District East, Karachi, for issuance of NOC for sale/mortgage of the said property and further request for permission to raise/construct a boundary wall over the said land. The said request was granted by the concerned Mukhtiarkar Revenue vide letters dated 28-11-2012 and 13-12-2012 respectively. It is also alleged that after obtaining the permission the petitioner made arrangements for construction of the boundary wall and on 17-12-2013 when the petitioner's men along with two contractors and construction material reached at said land but it was surprising for them that some strangers were already over there and they did not allow the petitioners to raise the boundary wall. When he made complaint to the respondent No.3 for protection, he did not pay any heed to it. Thereafter the petitioner moved an application to Mukhtiarkar dated 26-12-2012 for demarcation of land who forwarded the same to Survey Superintendent, Karachi, for demarcation and identification of actual limit of his land, though his request was delayed for considerable time but on 25-7-2013 the demarcation was carried out in presence of all concerned and sketch was also drawn which was forwarded to the Assistant Commissioner, Gulshan-e-Iqbal, Karachi by the Survey Superintendent, Karachi, vide letter dated 2-8-2013. It is further alleged that after obtaining the sketch attached with this petition which clearly shows that the respondent No.1 and others have encroached over the petitioner's land and when this matter was reported to concerned Police Station, they refused to take any action whatsoever against them, hence this petition.

3. The respondents Nos.1 and 3 have filed their comments which are on record whereas the respondents Nos.2 and 4 have not filed their comments.

4. It is contended by the learned counsel for the petitioner that the petitioner is owner of the land measuring 2-38 (2 Acres and 38 Ghuntas) out of Survey No.181 situated in Deh Okewari, Gulshan-e-Iqbal, Karachi and there is no dispute as to the title of the petitioner but the respondent No.1 and some other persons have encroached upon his land and when the petitioner approached the concerned Police Station as well as the respondent No.3 for removal of the encroachment but they did not pay any heed to it. He has further submitted that the petitioner being the owner of the land in question, has every right to protect it by invoking Articles 9, 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973 without approaching to any other forum as such he was of the view that the petition filed by him is very much maintainable and this court may issue appropriate directions to respondent No.3 to provide protection to the petitioner and remove the encroachers who are illegally occupying the petitioner's land. During the course of arguments, learned counsel for the petitioner has placed on record statement attaching photocopies of Memo. of Plaint in Suit No.382 of 2009, written statement of Mukhtiarkar in Suit No.382 of 2009 and Nazir's report dated 30-3-2009 in the said suit. In support of his arguments, learned counsel for the petitioner has relied upon the case law reported as Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others (2000 SCMR 929), Waqar Ali and others v. The State through Prosecutor/Advocate-General Peshawar and others (PLD 2011 Supreme Court 181), Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through Secretary and 4 others (2009 CLD 939) and Owaisco v. Federation of Pakistan and others (PLD 1999 Karachi 472).

5. Conversely, learned counsel for the respondent No.1 has argued that petition filed by the petitioner is not maintainable under the law as according to him the land in question is the subject matter of Civil Suit No.382 of 2009 filed by him which is presently pending adjudication before this court in its extra ordinary original civil jurisdiction. He has further submitted that the respondent No.1 owned and occupied the land measuring 1.5 acres in Survey No.193, Deh Okewari, Tappo Songal, Gadap Town, Karachi executed in favour of State Cement Corporation of Pakistan and eventually as a consequence of merger of State Cement Corporation of Pakistan with the respondent No.1, the respondent No.1 has become absolute owner of the property. He has further submitted that Mr. Moinuddin Ahmed, Nazir of this Court has carried out the Survey (Surt-e-Haal) in Suit No.382 of 2009 which shows that the Survey Numbers of the said area were manipulated and the suit land is in possession of the respondent No.1. He has further submitted that through this petition, the petitioner has raised disputed questions of fact which requires detailed inquiry and deliberation hence cannot be resolved through this constitutional jurisdiction.

6. Learned counsel for the respondents Nos.2 and 4 has adopted the argument of learned counsel for the respondent No.1 and has added that there is no mention in the petition that from which date the petitioner was in possession and when he was dispossessed and who dispossessed him. Even otherwise according to him if the petitioner was dispossessed and his land was encroached by respondent No.1 and some other persons then adequate remedy was available to him by filing case under the Illegal Dispossession Act, 2005, which provides complete mechanism against wrong doer.

7. Learned counsel for the respondent No.3 has adopted the arguments of learned counsel for the respondents Nos.2 and 4.

8. Learned Standing Counsel is present in court on court notice and he has also adopted the arguments of learned counsel for the respondents Nos.2 and 4.

9. We have carefully examined the respective contentions as agitated on behalf of parties and scanned the entire record with the eminent assistance of learned counsel for the parties and perused the record. On going through the record, it appears that the respondent No.1 had filed Civil Suit No.382 of 2009 before this court for declaration, permanent injunction and mandatory injunction wherein one Ghulam Qadir is arrayed as defendant No.4 in the said suit and the petitioner claims rights concerning the land in question through him. It is pertinent to mention here that the respondent No.1 has claimed his ownership rights of the land measuring 1.5 acres situated in Survey No.193, Deh Okewari, Tappo Songal, Gadap Town, Karachi and according to him the respondent No.1 is in possession of the land which is claimed by the petitioner by manipulating the Survey Numbers which is evident from the Nazir report dated 30-3-2009 in the said suit.

10. Be that as it may, the petitioner in para-6 of his petition has stated that on 17-12-2013 when petitioner's men along with two Contractors, labor, one truck of blocks, cement and mild reached at the said land for construction of boundary wall where they experienced that there were some people in occupation of a portion of his property who did not allow them to raise boundary wall but there is no mention in the said para that since when the present petitioner was in possession of the land. Even otherwise if according to the petitioner he was dispossessed then of course he has adequate remedy available to him by launching proceedings under the Illegal Dispossession Act, 2005, which provides complete mechanism against wrong doer.

11. It is argued by the learned counsel for the petitioner that he has filed the present petition for protection of his life and property at the hands of the respondent No.1 and other encroacher/land grabber and in this connection he has relied upon Articles 9, 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973 with prayer that appropriate order may be issued for removal of encroacher/land grabbers from his land.

12. Reverting to the contentions as raised by the learned counsel for the petitioner, it is suffice to say that there can be no cavil to the legal proposition that Articles 9, 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973 provides protection of the lives and properties of the citizens but at the same time Article 199 (1) of the Constitution says that if no adequate remedy is available to a party for enforcement of his right, he may invoke the jurisdiction for enforcement of his right by filing writ petition. Article 199 has been examined by the Hon'ble Supreme Court in the case of Allah Bakhsh and another v. Muhammad Ismail and others (1987 SCMR 810), in this case law it has been observed/held as under:

"Article 199

Writ jurisdiction, exercise of

Petitioners' failure to avail themselves of remedy before competent forum within prescribed time, held, was itself sufficient ground for dismissal of constitutional petition."

13. It is, therefore, clear that if an adequate remedy is available under the relevant law, the jurisdiction as provided under Article 199 cannot be invoked. Reliance in this respect is placed on a case of Moula Bux alias Mouledino and 2 others (2003 YLR 1316).

14. From the perusal of para-6 of the Memo. of Petition it appears that the land of the petitioner has been encroached by the respondent No.1 and some other persons, therefore, in our view where statute creates a right and also provides machinery for the enforcement of that right, the party complaining of breach of the statute must first avail the remedy provided by the statue for such breach before he applies for order in the nature of writ and where an adequate remedy is available to the petitioner for redressal of his grievances then it is incumbent upon the petitioner to have availed that remedy under the law and he cannot insist that the High Court should exercise its constitutional jurisdiction in presence of the adequate remedy available to him by other usual mode of proceedings.

15. From the perusal of record, it transpired that various controversial question of facts are involved in the matter which cannot be resolved by invocation of the constitutional jurisdiction such as who is in the actual possession of the land in question. It is difficult to ascertain and point out actual limits of Survey No.181 (two acres and 38 ghuntas) situated in Deh Okewari, Ghulshan-e-Iqbal, Karachi, and whether the petitioner's land was actually encroached, if so who are actual land grabbers? The respondent No.1 has already filed Civil Suit No.382 of 2009 before this court in which he is seeking relief against the defendant No.4 (Ghulam Qadir) from whom the present petitioner purchased the land in question. As observed above, the controversial question of facts are involved in this case and the petitioner has adequate remedy for redressal of his grievances by adopting other modes of proceedings as such on this ground this petition appears to be not maintainable.

16. We have also gone through the case law reported as Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and agriculture, Peshawar and others (1993 SCMR 618), Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37) and Adeel-ur-Rehman and others v. Federation of Pakistan and another (2005 SCJ 343). In the cited authorities, it has been observed/held that disputed or controversial question of facts cannot be resolved by the High Court in exercise of writ jurisdiction under article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

17. The case law cited by the learned counsel for the petitioner has been perused and considered by us but do not find applicable to the facts of the present case, hence are not helpful for him.

18. In view of the above discussion, we are of the view that this petition is not maintainable, the same is dismissed along with listed applications. However, the petitioner may seek his remedy available to him by adopting other modes of proceedings, if so advised. AG/A-44/Sindh Petition dismissed.