Altaf Hussain Shah son of Syed Mahmood Ali Shah hereinafter referred to as the petitioner is Seeking issuance of writ against Respondents No, 1 to 3 for transferring the land measuring 9 kanals 9 marlas in Khasra Nos, 379, 380 and 381 of Khatta Nos,33, 158 and 223 in the name of petitioner alongwith its possession.
2. Brief facts of the case of the petitioner are that land measuring 16 kanals and 4 marlas situated in Golra Sharif was sold by one Ghulam Hussain son of Ghulam Shah to Mst. Amtul Zahra, Abrar Hussain Shah and Abid Hussain Shah (Respondents No, 4 to 6) which transaction was pre-empted by the petitioner in the Civil Court and the suit of the plaintiff was ultimately decreed by the Court of learned Senior Civil Judge Islamabad, vide judgment dated 12.4.1987. That during the pendency of the suit CDA (Respondent No, 1) acquired the said land and, in lieu thereof, allotted land to Respondents No, 4 to 6 vide letter dated 2.3.1986. That on the strength of the judgment and decree of the Court referred to above, the said letter dated 2:3.1986 was modified vide letter dated 2.10.1988 and petitioner was allotted 53 shares i,e, 9 kanals 9 marlas of land (subject 'hatter of the writ petition) in Sector E-11. That the petitioner sold the same to M/S Services Cooperative Housing Society through a consent decree for a sale consideration of Rs,47,20,000/-. That the Respondents No, 4 to 6 also sold the said land to Respondent No, 8, M/S Multi Professionals Cooperative Housing Society malafidely on the basis of earlier letter dated 2.3.1986.
3. That National Accountability Bureau (Respondent No, 9) initiated investigation in the affair of Respondent No, 7, wherein petitioner was also summoned and, during the course of investigation, persuaded by Respondent No, 9 to agree to a Voluntary Return (VR) under Section 25(A) of the National Accountability Ordinance, 1999. The petitioner required to refund the entire amount (Rs,47,20,000/-), did so vide pay Order No, 269424, dated 26.9.07, drawn on National Bank of Pakistan. That on return of the amount the petitioner became entitled to return of the land and, in pursuant thereof, Respondent No, 9 was requested to restore the same to the petitioner.
4. That since 14.11.07 the petitioner has made numerous efforts for the return of land but of no avail.
That failure of Respondent No, 1 to return the land to the petitioner is a malafide, unreasonable, unjust, unwarranted and unlawful act and is liable to be declared so. That having no other adequate remedy the petitioner was left with no option but to invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 hereinafter referred to as the Constitution.
5.Learned counsel for the petitioner has argued that the land initially vested in Respondents No, 4 to 6 became ownership of petitioner when he successfully pre-empted the same in the Court of competent jurisdiction. That the petitioner parted ways with the title of the land when he sold the same to Respondent No, 7 through a consent decree for a sale consideration of Rs, 47,20,000/-.
That the NAB indulged the petitioner in awesome investigation and persuaded him to voluntary Return of the sale consideration under Section 25(A) of the NAB Ordinance. That the petitioner has complied with the directions and, after return of the entire sale consideration, became entitled to restoration of the possession, which is hindered by Respondent No, 1.
6. Learned counsel for respondents argued that the writ was not maintainable as factual controversies were involved therein. That the dispute cannot be confined by petitioner to the extent of Respondents No, 1 to 3 as the said respondents had allotted land to others including the petitioner in lieu of the acquired land and that the land allotted by Respondents No, 1 to 3 was subsequently sold to Respondents No, 7 and 8, which is further sold to numerous persons. That the subsequent purchasers are not impleaded as party to the writ petition.
7. On merit it was argued that mere "persuation' of the petitioner to return an amount of Rs, 47,20,000/- to NAB, a stranger to the transactions, would not entitle the petitioner to seek annulment of the rights of the subsequent purchasers including Respondents No, 7 and 8. That the writ petition is based on malafides as the petitioner wants to have land worth Billions of Rupees for Rs, 47,20,000/-.
8. I have heard arguments of learned counsel for the parties and perused the record.
9. Petitioner has confined his prayer in constitutional petition to Respondents No, 1 to 3, who had no concern with the land in dispute and which stood vested in subsequent purchasers including Respondents No, 7 and 8. In such eventuality, even if a direction as prayed for by the petitioner is issued the same would be of no use and utility and as such the constitutional petition is not maintainable on this count.
10. The subject matter of the petition i,e, land measuring 9 kanals 9 marlas was sold by the petitioner to Respondent No, 7, who sold the same to subsequent purchasers and, as a consequence of the said transactions, interest of other purchasers had accrued in the land and a writ cannot be therefore issued in favour of petitioner by ignoring the rights vested in such subsequent purchasers. The writ petition is also not maintainable on this count.
11. The petitioner, for certain reasons, opted for return of the sum of Rs,47,20,000/-. The said "option" of the petitioner would neither bound down the subsequent purchasers to surrender their title in favour of the petitioner nor such an option offered by the petitioner and accepted by Respondent No, 9 (NAB) would authorize the later to force the subsequent purchasers to return the land to the petitioner. The writ petition is also found not maintainable on this count.
12. Factual controversies are involved in the subject matter of the writ petition, which cannot be effectively redressed while exercising the jurisdiction under Article 199 of the Constitution as disputed rights cannot be settled in constitutional petitions and, only established rights can be, at the most, enforced in such a petition. The writ petition is also riot found maintainable on this count.
13. For the reasons recorded above, the constitutional petition is found devoid of merits. The same is, therefore, dismissed with costs.