2023 M L D 910
[Balochistan]
Before Abdul Hameed Baloch and Rozi Khan Barrech, JJ
MUHAMMAD AMEEN---Petitioner
Versus
DEPUTY COMMISSIONER PANJGUR---Respondent
C.P. No. (T) 117 of 2022, decided on 30th November, 2022.
Constitution of Pakistan ---
----Art. 199--- Constitutional petition --- Maintainability --- Factual controversy ---Scope ---
Petitioner sought compensation of the land resumed by the respondent for public purpose ---
Validity ---Petitioner had failed to attach any title document with the petition ---Incumbent
upon the petitioner exhausting remedy under Art. 199 of the Constitution to establish that he
has legal right over the subject property and that such right was so clear that it left no room of doubt or any controversy---Matter involving the disputed and unclear title over the subject property could not be entertained and allowed to be agitated in writ jurisdiction---Exercise of extraordinary jurisdiction under Art. 199 was intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other
authority was floating on the surface, which could be established without any elaborate enquiry into the questions involved in the matter ---Petitioner had no clear or undisputed title
over the subject land, which was Government land ---Constitutional petition being not
maintainable was dismissed.
Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and
N.W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 rel.
Ulasvar Tareen (absent) for Petitioner.
Nasrutullah Baloch, A.A.G. and Changaiz Dashti, State Counsel for Respondent.
Date of hearing: 3rd November, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ---Through the instant constitution petition filed under
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the following relief has been sought by the petitioner:
"In view of the above it is accordingly respectfully prayed to direct the respondent to
decide the application of the petitioner and also directed the respondent to give the
compensation to the extent of land coming in the road cutting.
Any better relief in the circumstances may also be awarded in the interest of justice."
2. The case of the petitioner, as set up in the instant petition, is that the main road of the
District Panjgoor is under construction, and the land of the petitioner is also coming in the road cutting. The respondent called the petitioner for compensation, and gave compensation to the petitioner to the extent of date trees coming in the road cutting. It has been averred in the petition that the petitioner approached the respondent for compensation to the extent of land approximately 700 sq. ft. by length and 18 sq. ft. by width, and the petitioner filed an application before the respondent, but the respondent lingered on the matter on one and other pretext and not deciding the application of the petitioner nor given any compensation to the extent of land coming in the road cutting. Hence, this petition.
Despite repeated calls, counsel for the petitioner was not in attendance.
In such circumstances, we are left with no other option except to decide the matter on
the basis of material available on record after hearing learned AAG.
3. Learned AAG, while arguing the matter, stated that, factually the property belongs to
the Government of Balochistan and the petitioner has no title document in respect of the property in question.
This petition was filed on 25.05.2022, and it was listed for katcha peshi on 08.6.2022,
of which date the order sheet reads as under:
"When confronted with maintainability of the instant constitution petition in absence of any title documents and payment of alleged compensation for date trees, learned counsel for the petitioner requested for an opportunity to apply for the relevant documents and to place the same before this court.
Opportunity is afforded.
As per request of learned counsel for the petitioner, office to fix the matter after one week."
4. On the next date of hearing, i.e. 21.06.2022, the learned counsel for the petitioner
submitted an application in office for placing on record certain relevant documents. After
perusal of the said document, it was the judgment of the Qazi court dated 26.05.2009 in
respect of property situated at the area of Gitani Washbood, Tehsil Panjgoor.
5. The said suit was between one Dil Murad and Muhammad Ameen and others, which
cannot establish the title of the petitioner in property in question. However, the petitioner did not produce any title documents in respect of property in question.
6. The pivotal question which needs determination would be whether the land in
question was resumed illegally, unauthorisedly and without any compensation to its lawful
owners or otherwise. An in -depth scrutiny of the record would reveal that, admittedly, the
petitioner has not attached any title document with the petition and also failed to attend to the
specific query of the court, as noted in the order dated 08.06.2020.
7. It appears from the contents of the petition that the dispute in between the parties
relates to the disputed title over the subject property, which requires proper adjudication by the relevant forum and the Court of appropriate Civil after recording evidence.
8. It is incumbent upon the petitioner exhausting remedy under Article 199 of the
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 its leaves no room of doubt or any controversy, and, the matter involving the disputed and unclear title over the subject property cannot be entertained and 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, in the matter in hand, the petitioner has no clear or undisputed title over the subject land, which is Government land, for, the petitioner claims himself to be the owner of the subject Government land, but he has miserably failed to substantiate his claim of the subject Government land to him; 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).
9. In the case of N.W.F.P. Public Service Commission and others v. Muhammad Arif
and others (2011 SCMR 848), wherein, the Hon'ble Supreme Court of Pakistan has held that:--
"9. ...1t 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 view of the above discussion, we are of the opinion that since the title to the land
itself is in question. Hence, the same can hardly be adjudicated in writ jurisdiction. Consequently, at the most, we would direct the petitioner to approach the concerned authority for ventilating his grievance and thereafter, if he may be not satisfied, he may resort to a Civil Court for his remedy. The petition is hereby dismissed.
SA/38/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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