' MUHAMMAD ALI MAZHAR, J.---Through this Constitution Petition, the petitioner seeks following relief(s):--
(a) To direct the respondents Nos.10 to 12 not to construct any road in property which was in possession of the petitioner and direct the respondents Nos.2 and 3 to conduct the enquiry regarding taking the law in their hands by official respondents by dispossessing the petitioner unlawfully.
(b) To direct the respondents Nos.3 and 4 to deal the petitioner in accordance with law as others are in possession of area adjacent to their units and not lease out such area to the respondents Nos.10 to -12 secretly as the area is adjacent/Mohag to the plot of petitioner and petitioner is ready to pay the amount of the lease according to law.
(c) To direct the respondents Nos.3 and 4 to produce the record of leased plot, if any, they leased out to others along with site plans and in what manner they have leased out the plot.
(d) To declare the act of respondents by dispossessing the petitioner without any notice unlawfully and illegally.
(e) To appoint the commissioner to verify the position immediately because newly development/activities of respondents Nos.10 to 12 with the help of respondents Nos.4, 6, 8 and 9.
(f) To restrain the respondents Nos.10 to 12 not in the area or use as passage of the area from which petitioner was forcibly dispossessed.
(g) To grant any other relief as this honorable Court may deem fit and proper under circumstances of the case.
(h) To award cost of the petition.
2. The brief facts of the case are that the petitioner is owner of Plot No,B-85, Site, area Sukkur, the petitioner purchased the said plot for the purposes of establishing an industrialist unit in the year 1981-1982. It is further contended in the memo of petition that there was an abandoned canal belonged to respondents Nos.3 and 4 on which site thieves used to enter into industrial units and some persons encroached upon the area and built their katcha houses. Due to this reason all industrialists constructed their boundary wall on the portion adjacent to their factories. The petitioner also approached respondents Nos.3 and 4 for lease of said area in favour of the petitioner but the said respondents for last 28 years kept the petitioner on false hopes and stated that when they will lease out the land to others as per policy of government the area in possession of the petitioner will also be leased out to them accordingly. The petitioner submitted an application which was returned back with the verbal direction that it is premature. The respondents Nos.10 and 11 by using force caused hindrance to the petitioner from time to time. There is another plot of respondent No,10 bearing Plot No,B-86 and the plot of the petitioner is in between these two plots. On 1-10-2011, the respondents Nos.4, 6, 8, 9, 11 and 12 along with heavy machinery forcibly entered into the area and demolished boundary walls and asked the chowkidar of the petitioner that recently this area has been leased out to respondents Nos.10 and 11. The respondents forcibly dispossessed the petitioner and handed over the possession to the respondents Nos.10 and 12. It is further averred that the official respondents are illegally supporting the respondents Nos.10 to 12 and even refused to register the F.I.R. Of the petitioner though the petitioner approached the respondent No,8.
3. The respondents Nos.3 and 4 filed their comments in which, it 'was, inter alia, stated that there is no policy of government to lease out the plot on the basis of Mohag as Mohag right is applicable only to the agricultural land under Government of Pakistan Land Revenue Department notification dated 25-2-2006 and Sindh Colonization and Disposal oc Government Land Rules, 2005. It was further stated in the comments that the petitioner has no locus standi to file this petition. In the supporting affidavit of Assistant Executive Engineer Sukkur, Begari Bund Sub-Division Sukkur it was stated that the petitioner never approached to the respondents Nos.3 and 4 or any other officials of the irrigation department for lease of plot in question, nor the petitioner was ever given any hope as falsely claimed by the petitioner.
4. The respondents Nos.5, 6 and 9 have also filed their comments, through learned Additional Advocate General Sindh Sukkur in which it was, inter alia, stated that the petitioner had encroached upon the government land to give a wrong impression that its plot boundary extended up to irrigation department (Phithal Wah). They further submitted that on 1-10-2011, the revenue department carried out the demarcation of the allotted land by the government of Sindh vide notification dated 8-8-2011. According to the notification, the said piece of land was allotted to CBL.
An agreement between District Officer Revenue and CBL factory was executed as per land grant policy. After the execution of agreement, the land was transferred through'registered lease agreement deed on 12-8-2011 in favour of 'CBL, thereafter the possession was handed over to CBL on 23-8-2011 as per policy and rules of government. The land was allotted CBL by Secretary L.U., Government of Sindh vide Notification No,01-461-03/SO-I/139, dated 8-8-2011.
5. The respondent No,10 also filed his comments in which a preliminary objection was taken that the petitioner is not an aggrieved person and the petition is also bad for non-joinder of necessary party. The petitioner's plot is bounded on three sides by the plots owned by Continental Biscuits Limited (CBL) of which the respondent No,10 is the Chief Executive and respondent No,12 is factory manager but the petitioner has failed to implead the company which owns the plot. It is further stated in the counter affidavit that the petitioner is owner of Plot No,B-85 only which is bounded on two sides by Plot No,B-62 and 86 and on the third side it is bounded by 150 ft wide road while the depth of the plot is 570 feet. The petitioner can only claim ownership of an area which is desctibed in the site plan which is appended in the memo of petition as annexure 'A' The petitioner is claiming entitlement of an undefined part of area of 1 and a half acres which has been leased out to CBL and possession was also handed over to them on 23-8-2011. CBL was put into possession of the plot of land measuring one and a half acres and possession was also delivered by Mukhtiarkar (Revenue) Taluka New Sukkur and when the possession was given it was a vacant plot and CBL constructed its boundary wall to secure it from the encroachers including the petitioner. After allotment and lease of subject plot to CBL, the petitioner's plot is bounded on three sides by the land owned by CBL. The respondent No,10 has also attached a copy of registered lease agreement deed dated 12-8-2011 executed by government of Sindh through DO (Revenue) Sukkur in favour of Messrs Continental Biscuits Limited for an area of 1-05 acres of Deh Rahooja Tapa Old Sukkur for a period of 99 years' lease from adjacent to Plots Nos.B-85 and B-86. It was further stated that the market value of subject land was fixed by the government in accordance with the provisions of Colonization and Disposal of Government Lands (Sindh Act), 1912 Sindh Colonization and Disposal of Government Land Rules, 2005 and the statement of condition. The respondent No,12 has also filed his comments and denied all allegations levelled against him.
6. Mr. Muhammad Iqbal Memon, the learned counsel for the petitioner argued that the petitioner was in possession of the land adjacent to their plot, but the respondents unlawfully dispossessed the petitioner from the said area for which the petitioner had applied for lease and agreed to pay the lease amount. He further argued that against the unlawful dispossession, the petitioner approached to the respondent No,8 for lodging F.I.R. But he refused to register the same. He further argued that the respondents Nos. 4, 6, 8, 9, 11 and 12 with subordinate staff of the respondent No,8 forcibly entered into the area occupied by the petitioner since 1981-1982 and also demolished wall and created harassm ent. He further argued that the petitioner approached the high-ups but they failed to redress the grievance of the petitioner.
7. Mr. Munir A. Malik, the learned counsel for the respondent No,10 argued that the petitioner has no locus standi to file this petition as the petitioner has failed to produce any document on the basis of which the petitioner is claiming the alleged right of extra land adjacent to their plot. He further argued that the petition is bad for non-joinder of necessary party as the plot, in question has been leased out to Continental Biscuit Limited, which is a limited company and no adverse order can be passed against the party which has not been arrayed as respondent in the petition. He further argued that by virtue of lease agreement dated 12-8-2011, Government of Sindh leased out 1.5 acres of land to Messrs Continental Biscuit rimited and after execution of registration of lease, plot in question was also handed over to the company which was acquired by them for expansion of their factory. The learned counsel further referred to allotment letter dated 8-6-2011, which was issued for the land in question against the payment of lease money. The learned counsel submitted that the petitioner has raised many factual controversies ,which cannot be decided under the constitutional jurisdiction of this court and the petitioner has also failed to avail equally, efficacious and alternate remedy, therefore, this petition is not maintainable and in fact the petitioner is trying to enforce his alleged contractual rights through this constitution petition.
8. Mr. Nizamuddin Baloch, the learned counsel for the respondent No,12 adopted the arguments of Mr. Munir A. Malik, Advocate and he further argued that the disputed question of facts cannot be decided in the constitutional petition and different remedies were available to the petitioner to enforce their alleged rights but instead of availing alternate remedies, the petitioner has approached this court and filed the constitution petition which is not maintainable.
9. The learned A.A.-G. Argued that government lawfully allotted the land in question to the CBL through registered lease deed and no case of any unlawful or illegal dispossession of the petitioner is made out.
10.. Heard arguments of the learned counsel. In fact the petitioner has failed to place any title document on record to prove that they are entitled to any other adjacent or adjoining land beyond the limits and boundaries of their Plot No, B-85, Site Area, Sukkur. The petitioner has impugned the action of the respondents on the ground that they dispossessed the petitioner from the land in question for which the petitioner allegedly applied for lease but no document has beeh placed on record to show that any assurance was given to the petitioner or it ever paid any cost of land for the alleged lease rights to the official respondents. We have examined the document of lease executed in favour of Messrs Continental Biscuit Limited on 12-8-2011 for the land in question. The petitioner has failed to implead the owner of the land but only Chief Exectitive Officer of the company has been arrayed as respondent No,10. Messrs Continental Biscuit Limited is a separate/distinct legal entity and juristic person who is not present before us, therefore, no order can be passed against a party not made party or impleaded in the petition. The grievance of the petitioner is that on its illegal dispossession or demolishing the boundary wall, the petitioner approached the respondent No,8 for lodging the F.I.R. It is clear beyond any doubt that if the F.I.R. Of any person is refused or not entertained by the police, the remedy to such an aggrieved person is available under section 22-A, Cr.P.C., to which the petitioner has failed to avair. The next contention of the petitioner's counsel is that the petitioner has been unlawfully and illegally dispossessed from the land in question. Again an equally, efficacious and alternate remedy is available under the provisions of the Illegal Dispossession Act, 2005 if petitioner feels that it had lawfully occupied the land. The petitioner could also file civil suit under section 9 of the Specific Relief Act and could have also sought the declaration to protect its alleged right of Mohag or lease, but no such remedy was availed by the petitioner and this constitution petition has been preferred. There is another difficulty that the land in question has been leased out to the company by virtue of lease deed dated 12-8-2011, which is a registered document. The petitioner's grievance against the registered lease cannot be redressed unless he moves to the civil court for seeking the relief of cancellation of lease deed. In this constitutional petition, neither this court can cancel the registered lease deed nor any such relief has been sought in the memo of petition. The documents filed by the respondent No,10 along with counter-affidavit clearly demonstrate that the land in question was properly leased out to CBL. Not only the document of lease was executed and registered, but the possession was also handed over, therefore, in view of this matter, the petitioner must have invoked either the jurisdiction of civil court or to avail other remedies, as stated above, but this constitution petition is not maintainable. The petitioner has raised numerous disputed question of facts and factual controversies which cannot be decided by us in the constitutional jurisdiction.
The honourable Supreme Court in its judgment reported in PLD 1983 SC 280 (State Life Insurance Corporation of Pakistan v. Messrs Pakistan Tobacco Company Ltd), held that the controverted question of facts, adjudication on which possible only after obtaining all types of evidence in power and possession of parties, can be determined only by courts having plenary jurisdiction in the matter and that on such ground constitutional petition was incompetent. We have recently decided a Constitution Petition No,D-1273 of 2010 (Mumtaz Ali Jahangir and anther v. The Province of Sindh and others), the judgment was authored by one of as (Muhammad Ali Mazhar J) in which also various factual controversies or disputed question of facts were raised by the petitioners and keeping in view the dictum laid down by the honourable Supreme Court, we dismissed the petition as under:- "Article 199 of the Constitution is not intended for deciding the disputed facts and thwarts the procedural law. At this juncture, we would like to refer to the judgment reported in 2001 SCM R 1493 (Mst. Kaniz Fatima v. Muhammad Salim), in which the honourable Supreme Court has held that converted question of fact, adjudication of which is possible only after obtaining all types of evidence having by the parties can be determined only by forums concerned and in such like cases, constitution petition would not be competent and the relief in constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gain. It is mandatory and obligatory for a party invoking constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. Disputed questions of fact could not be decided in constitutional jurisdiction. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. It is mandatory and obligatory for a party invoking the constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. The constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of constitutional petition. In this regard, reference can be made to 2011 SCM R 279 (Anjuman Fruit Arhtian v. Deputy Commissioner, Faisalabad)" .
11. After examining the entire material, we have no hesitation in our mind to hold that the contentions raised by the parties cannot be decided without evidence. We cannot enter into factual realm or embark upon an exercise to determine complicated question of facts. The resolution of such like controverted issues is ordinary left to the proper forums, prescribed by law, indulgence in such exercise would have effect of preempting and enforcing upon the jurisdiction lawfully vested in the competent courts.
12. As a result of, our above discussion, this constitution petition is dismissed along with pending applications.