[Peshawar (Mingora Bench)]
Before Muhammad Naeem Anwar and Shahid Khan, JJ
ABDUL MAJEED---Petitioner
Versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Housing and Physical Planning at Peshawar and others---Respondents
Writ Petition No. 751-M of 2023, decided on 21st June, 2023.
(a) Khyber Pakhtunkhwa Public Property (Removal of Encroach-ment) Act (V of 1977)---
----S. 13---Constitution of Pakistan, Art. 199---Writ of certiorari, issuance of---Conduct of the party---Effect---Petitioners / plaintiffs invoked constitutional jurisdiction of the High Court against dismissal of their suit by the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act,1977---Validity---When the predecessor-in-interest of the petitioners/plaintiffs had challenged the award pertaining to the disputed property claiming themselves to be owners of the same and their suit was dismissed then, the petitioners could not file the suit-in-question claiming themselves to be the owners of the very property, being subject-matter of previous suit---Issuance of certiorari is a discretionary relief which can be considered by considering the facts of case qua the conduct of the party in juxtaposition with the decision impugned before the High Court because whenever such writ is issued it refers to the illegality of the forum below---Petitioners had concealed the facts of earlier suit filed by their predecessor-in-interest from the Court whereas the issuance of writ of discretionary relief, for which, one of the foremost conditions was that he who sought the remedy by way of issuance of writ must be fair and one who concealed the facts could never be held entitled for grant of writ---Constitutional petition was dismissed, in circumstances.
Darvesh Khan v. Muhammad Sher Khan and others 1986 SCMR 352; Rehmatullah and others v. Mst. Hameeda Begum and others 1986 SCMR 1561 and Nawab Syed Raunaq Ali and. others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.
(b) Khyber Pakhtunkhwa Public Property (Removal of Encroach-ment) Act (V of 1977)---
----S. 13---Civil Procedure Code (V of 1908), S. 115---Constitution of Pakistan, Art. 199---Suit for declaration filed before the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, dismissal of---Constitutional powers of the High Court--- Scope--- Petitioners/ plaintiffs invoked constitutional jurisdiction of the High Court against dismissal of their suit by the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroach-ment) Act, 1977---Validity---Declaration so sought by the petitioners/ plaintiffs could not be granted by the Tribunal especially when they could not place on record any document to substantiate their contention regarding the factum that the property was not public one rather it was in their ownership---No doubt the powers of the High Court under Art. 199 of the Constitution were vast as compared to the revisional powers under S. 115 of the Civil Procedure Code, 1908, however, for such relief the petitioners must come to the High Court in fair manner and with allthe facts---Constitutional petition was dismissed, in circumstances.
Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Muhammad Lehrasab Khan v. Mst. Aqeel-Un-Nisa and 5 others 2001 SCMR 338 ref.
(c) Specific Relief Act (I of 1877)---
---S. 42---Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977), S. 13---Suit for declaration filed before the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 dismissal of---Validity---Jurisdiction of the Tribunal---Scope---Contents of the plaint self-negated the stance of the petitioners/plaintiffs who claimed themselves to be the owners of the suit-property---In such a scenario, when the entries of the record-of-rights or periodical records were intended to be challenged to be ineffective upon their rights, their claim could only be considered when the suit would have been filed under S. 42 of the Specific Relief Act, 1877, but in present circumstances, no such relief could be granted by the Tribunal in view of its limited jurisdiction---Jurisdiction of the Tribunal was only to the extent that the property was not a part of public property, therefore, the contention of the petitioners/plaintiffs that they were not afforded opportunity to produce the evidence or that the property was not acquired as alleged by the respondents, was misconceived---Impugned judgment and decree was based on correct appreciation of facts/record, whereas the petitioners had not been able to point out any illegality, irregularity, mis-reading or non-reading of record or jurisdictional defect---Constitutional petition was dismissed, in circumstances.
Muhammad Farid and others v. Municipal Committee PLD 1999 SC 41 and Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore v. Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others PLD 2009 SC 210 ref.
Muhammad Nabi for Petitioner.
