Through this writ, Sadiq Hussain/petitioner has prayed that the impugned order dated 17.06.2010 passed by the learned Addl; Sessions Judge D.G. Khan be set-aside being violative of law and he be directed to decide the case on merits in accordance with law.
2. Contents of the petition show that the petitioner is co-owner and co-sharer in Khata No. 34 of Mauza Chabri Zareen Tehsil D.G. Khan along with Respondents No. 1 to 4. Respondents No. 1 to 4 without resorting to parbtion of land, forcibly occupied some portion of land in the said khata and made obstacle and blocked the way from routing through it which was shown many years ago in the record of rights for public use. Respondents No. 1 and 2 also filed civil suit against the petitioner and his brother and obtained status-quo order which have been vacated. One suit is withdrawn while other is fixed for evidence. With the help of Respondents No. 6 and 7, the police restored the occupied path on 25.05.2010 but on 27.05.2010 it was again closed by Respondents No. 1 to 5.
Feeling aggrieved the petitioner lodged petition u/S. 3(2) of the Illegal Dispossession Act 2005. After recording the cursory evidence of the petitioner and obtaining report from the SHO, PS Sadar dated 17.06.2010, learned trial Court dismissed the petition.
3. Learned counsel for the petitioner contends that the impugned order is against the law and facts of the case. Learned trial Court has not applied its judicial mind while passing the impugned order.
Hence, this writ.
4. After hearing the arguments of the learned counsel for the petitioner and going through the documents appended with the writ, I find that the only allegation against the respondents is that they encroached upon public way/thoroughfare which was being used by the public-at-large including the petitioner. Even earlier the respondents encroached upon the said public path which was got restored on 25.05.2010 by the police with the help of Respondents No. 6 and 7, However, on 27.05.2010 Respondents No. 1 to 5 again encroached upon the same for which they are not liable u/S. 3 of the Illegal Dispossession Act, 2005. The petitioner has approached wrong forum for removal of encroachment upon the thoroughfare, Section 175 of the Land Revenue Act, 1967 governs the controversy which lays down that whether land has been reserved for the common purposes of the persons residing in the estate in which the land is situated, has been encroached upon by any person, a Revenue Officer may on the application of the land owner in the estate, eject him from the land. This being so, the petitioner should have moved the Revenue Officer concerned u/S. 175 of the Land Revenue Act, 1967 instead of making a complaint before the learned Addl. Sessions Judge under the penal provision of the Illegal Dispossession Act, 2005.
Another remedy available to the petitioner was a complaint before the Area Magistrate in terms of Section 133 Cr.P.0 which deals with public nuisance. The Magistrate has been empowered to remove any unlawful obstruction and nuisance from anywhere which is or may be lawfully used by the public. There is no answer from the side of the petitioner as to why he did not move the Revenue Officer u/S. 175 of the Land Revenue Act or the Area Magistrate u/S. 133 of the Criminal Procedure Code. Be that as it may, the facts remains that a complaint u/S. 3 of the Illegal Dispossession Act, 2005 is not competent regarding encroachment on public way.
5. For what has been discussed above, writ petition filed by the petitioner is not maintainable and the same is dismissed in limine. (2008 P.Cr.L.J 1124 [Lahore] relied upon).