' The instant writ petition has been filed by the petitioners to call in question the order dated 1-4- 1987 passed by respondent No,1 restoring the sanctioned natural path through the land of the petitioners Square No,39 Killa Nos.21 to 25 situated in Chak Nos.46/DNB, Tehsil Bahawalpur. The respondent No,5 has filed an application for restoration of the sanctioned natural path running through the abovesaid land. The respondent No,1 obtained report from the field staff to restore the natural path.
2. Learned counsel for the petitioners contended that no natural path has been sanctioned through Killa Nos.21 to 25 of the Square No,39 belonging to the petitioners and that the order impugned has been passed in absence of the petitioners in violation of principle of natural justice and also that the petitioners are full owners of the said land, therefore, no path can be carved or sanctioned through their owned land without their consent. He further contended that any action which may affect the person or property or other right of any party concerned in a dispute can only be taken after giving the person to be affected thereby a reasonable opportunity of showing cause and principle of "audi alteram partem" is attracted to this case. He placed reliance on case of The Christian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others 1997 SCM R 1189. He further contended that no presumption of truth is attached to Furd Takseem. He also placed reliance on case of Muhammad Sadiq Khan and others v. M. Saleem Khan and others 1988 M LD 1676.
3. Conversely the learned counsel for the L.Rs, of respondent No,5 vehemently opposed the arguments of learned counsel for the petitioners contending that it was a sanctioned internal path, which was restored by the order of the respondent No,
1. He further contended that the order impugned was passed after issuing notice to the petitioners and they were provided an opportunity of being heard. He argued that the implementation of the sanctioned natural path has been made in the Revenue Record. He further argued that the order of the Assistant Commissioner is appealable and the petitioners have not availed of alternate remedy provided under the law. He maintained that a question of fact is involved in the matter which cannot be interfered with by this Court. He continued that though an order which is without jurisdiction it has been acted upon cannot be interfered with in writ jurisdiction. Reliance has been placed in this context on cases of Noor Muhammad v. Habibullah deceased through his L.Rs, 1991 M LD 1651, Ch. Muhammad Ismail v.
Fazal Zada Civil Judge, Lahore PLD 1996 SC 246, Mrs,. Rehana Masood v. Mumtaz Ali Chungani and others 1989 ALD 534 and Muhammad Younis Khan and 12 others v. Government of N.-W.F.P. Through Secretary, Forest and Agriculture, Peshawar and others 1993 SCM R 618.
4. I have anxiously heard the arguments of the learned counsel for the parties and perused the record.
5. Respondent No,1 has filed parawise comments and report. The respondents have produced copy of the Furd Takseem with regard to the sanction of natural path of Chak No,39/DNB, at Serial No,2 of the said document a natural path is sanctioned through Killa Nos.21 to 25 and the Shajra Parcha (Aks Masavi) of the village also shows that a sanctioned path is running through the abovesaid Khasra numbers and in Khasra Girdawari of the land pertaining to crops 1984 to Rabi 1987, there is entry of sanctioned path and if is not implemented at site or any encroachment on any part of the sanctioned path, the Collector has the jurisdiction in accordance with Article 1 of Schedule II of Colonization of Government Land (Punjab) Act, 1912, which is reproduced as under:-- "The Crown does not grant to the grantee but hereby absolutely excepts and reserves to itself out of and in respect of the said land (1) all grounds situated in the said lands or any part thereof already marked out, excavated or otherwise utilized for the distributary channels, and (2) all existing right to and over all mines and minerals, coals, gold washings, earth oil and quarries in or under the said lands or any part thereof, together with all easements heretofore enjoyed by the Crown in respect of the said lands, or any part thereof, and it likewise excepts and reserves the rights of the public to use existing thorough fares traversing the said lands or any part thereof including a width of 1-1/2 Kadams on either side of survey base lines, and also any liens of road which though not yet made, have been marked out upon the ground."
6. From the bare reading of the above provision of law it is, thus, manifestly clear that it is the power of the Government/Collector to sanction 1-1/2 Qadams width path on either side of the survey of the square or any line of road whichever not yet made to have been marked upon on the ground can restore the same and implement the order of sanctioning the natural path at side.
7. The petitioners were present when the Tehsildar/respondent No,2 went on the spot. The contention of the learned counsel for the petitioners that there is no sanctioned path existing at the site or they were not heard being misconceived is repelled.
8. The learned counsel for the petitioners when confronted with the situation that the impugned order is appealable before the next higher forum, could not respond, but contended that it was a coram non judice order, therefore, there was no necessity to avail of the alternate remedy. As discussed above, the path in dispute was a sanctioned one and the petitioners were in the knowledge that the proceedings of restoration of the same are in progress and they appeared before the Revenue Officer. They have failed to avail of the alternate remedy and the High Court must exercise its Constitutional jurisdiction whenever remedy was available to the party invoking that jurisdiction as observed in Ch. Muhammad Ismail's case. The Constitutional petition in the High Court is not proper remedy as observed by the apex Court in case of Muhammad Younis Khan and 12 others v. Government of N.-W.F.P. Through Secretary, Forest and Agriculture, Peshawar and others 1993 SCM R 618.
10. So far as, contention of the leaned counsel for the petitioners that the petitioners as the full owners of the property and the Revenue/Colony Hierarchy lacks the jurisdiction to interfere with the rights of the petitioner. It is suffice, to observe, that the natural path in dispute has been sanctioned while making the survey of the land. Learned counsel for the petitioners has not been able to controvert the copies of the Revenue i,e, Furd Takseem, Shijra Parcha and Khasra Girdawari and the Collector is competent to restore the already sanctioned path or remove encroachment made on the same.
11. For the foregoing reasons, and in agreeing with the dictum laid down in the cases referred to above by the learned counsel for the respondents, this writ petition having no force is dismissed.
However, to redress their grievance, the petitioners may avail of the alternate remedy available under the law, if so, advised.