1994 PLP 919 (CLC)

(b) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Locus standi of petitioner‑‑‑Petitioner was allegedly guilty of patent encroachment yet he had approached High Court to come to his rescue and act in aid of his wrong‑‑‑Petitioner could not be permitted to derive benefit out of his own misdoing‑‑‑High Court could not afford to petitioner any measure of relief, especially in exercise of its discretionary jurisdiction under Art. 199 of the Constitution‑‑‑Constitutional petition, on the. face of it, being misconceived was not maintainable and was dismissed in circumstances. Khadim Nadim Malik for Petitioner. Muhammad Ali Gilani for Respondent. One Qaisar Ali is lessee of Property No.804/A, Sadar Bazar, Multan Cantt. Muhammad Akhtar writ‑petitioner got a portion of it on rent, decades ago. He is running his business in a cabin/khokha installed over there. He has, however, allegedly encroached upon a portion of the public street, so much so that he has protruded right up to metalled road. By a general notice issued on 18‑8‑1993, through press media, the Multan Cantonment Board has called upon the intruders and encroachers to quit, by undoing the inroads and obstrusion.

2. The petitioner maintains that the Board itself had granted to him the requisite permission under section 181 of the Cantonment Boards Act, and if at all he was required to vacate any strip of land, treated by the Board to be in the nature of an encroachment, a notice under section 185(2) was a must, and no action could be taken in an arbitrary manner against him without affording him an opportunity to show cause.

3. Learned counsel for the respondent has explained that the Board does not at all propose to interfere with the writ‑petitioner's occupation of his portion of Property No.104‑A, or with his business activity being conducted there, but he ‑has certainly no right to encroach upon any portion of the public street for any purpose. It is maintained that quite a big chunk of State land has illegally been occupied by the petitioner, and he has no business to perpetuate his possession over there. It is contended that if an owner of property intends to erect or re‑erect a building, which the Board is not inclined to approve of, or a portion of such building is proposed to be pulled down, the owner would be entitled to a notice as stipulated by the statute; but this is an encroachment, clear and simple, and the petitioner has no right to keep the same intact, as it is manifestly repugnant to the Rules, and has also the character of public nuisance.

4. If, as already said, the writ‑petitioner's standpoint is that he is guilty of no encroachment, which assertion the respondent is controverting, it would involve a factual inquiry, which cannot obviously be undertaken by this Court, in exercise of its writ jurisdiction. The remedy would lie elsewhere. Departmental remedy, of course, would also be open to the petitioner, and even if he has not been in receipt of a specific show‑cause notice, issued by the respondent, he may approach the latter with a representation in writing and satisfy the Authorities that their impression or information about his being in illegal occupation of any portion of the road area or cantonment land is simply illusory or ill‑founded, and he cannot be called upon to roll back.

5. The writ‑petitioner has allegedly been guilty of a patent encroachment. Yet he expects that this Court would come to his rescue and act in aid of his wrong. Well, he cannot possibly be permitted to derive benefit out of his own misdoing; and this Court cannot afford to him any measure of relief, especially in exercise of its discretionary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. The writ petition, on the face of it, is misconceived and is hereby dismissed. A.A./M‑1331/L Petition dismissed.