2004 PLP 1308 (MLD)

CH. IJAZ AHMAD, J.‑‑‑The brief facts out of which the present appeal arises are that the appellant filed Constitutional Petition No.5996 of 2003 with the following prayer:‑‑ "Under the circumstances, it is most respectfully prayed that a direction may kindly be issued to the respondents to deliver possession of allotted residential plot to the petitioner in any approved Scheme of the LDA against Overseas Quota after receiving the required charges/price etc. It is further prayed that it may kindly be declared that Land Disposal Act, 1998 has no application to the allotments/commitments made prior to its promulgation. Any other appropriate relief which this Honourable Court deem fit and proper in the circumstances of the case may also be awarded." The petition of the appellant was dismissed by the learned Single Judge vide order dated 5‑6‑2003, Hence this present appeal. Learned counsel of the appellant submits that the appellant has submitted various applications before the respondents for allotment of a plot since 1993. The respondent refused to allot the plot to the appellant on account of the subsequent Law framed under the name and style of "Land Disposal Act, 1998"'. He further submits that the learned Single Judge did not give any finding qua the second prayer of the appellant. He further submits that the appellant filed complaint before the Provincial Ombudsman who also dismissed the same on wrong premises on the basis of stand taken by the LDA authorities in response of the notice of the Ombudsman, therefore, order of the Provincial Ombudsman dated 5‑8‑2000 is not sustainable in the eye of law. We have considered the contentions of learned counsel for the parties and perused the record ourselves. In case the contents of the writ petition and order of the Provincial Ombudsman are put in juxtaposition, then it brings the case of the appellant in the area of disputed question of .fact. This Court has no jurisdiction to resolve the disputed question of fact in Constitutional petition as the law laid down in Muhammad Younas Khan's case reported as 1993 SCMR

618. The appellant is well within his right to file suit before the competent Court for resolution of disputed question of fact even where the exclusive bar is imposed upon the jurisdiction of Civil Court in view of law laid down in Zafar‑ul‑Hassan's case reported as PLD 1969 SC

113. It is also admitted fact that the appellant filed a complaint before the Provincial Ombudsman who dismissed the same vide order dated 5‑8‑2000. The appellant has alternative remedy to file appeal before the higher authority under section 32 of the Provincial Ombudsman Act, 1997, therefore, Constitutional petition is not maintainable in view of law laid down in 1992 SCMR 2121 titled Water and Power Development Authority and others v. Commissioner Hazara Division and others. In view of what has been discussed above, we do not find any infirmity or illegality in the impugned order of the learned Single Judge. The appellant is well within his right to avail proper remedy of appeal before the higher authority of Provincial Ombudsman or file civil suit before the competent Court for resolution of the disputed question of fact and if the civil suit is filed or representation is made before the higher authority, the trial Court/Appellate Authority shall decide the same without being uninfluenced by any observation of the learned Single Judge or by this Court, H.B.T./S‑88/L Appeal dismissed.