Muhammad Ali Mazhar, J.--This constitutional petition has been brought by the petitioners with the following prayer:-- "(a) That this Honourable Court may be pleased to declare that the act of the Respondents No. 2, 4, 5 & 6 regarding forcible ejectment of the petitioner, so also his brother-in-law with their family members despite legal allotment (as stated above) appears to be illegal, mala fide, ultra vires, without lawful authority so also in violation of fundamental rights as guaranteed under the Constitution of Pakistan, 1973.
(b) That this Honorable Court may be pleased to direct the Respondents No. 2, 4, 5 & 6 to remove the police force from inside and outside the said bungalow and to allow the petitioner so also his brother-in-law and their family to enter and occupy the same without any fear, till disposal of the petition, so also direct the said respondents to disclose whereabouts of two relatives/detenues of the petitioner namely Javed and Junaid.
(c) To award the costs of the petition.
(d) Any other relief which this Honorable Court deems fit and proper under the circumstances of the case".
2. The facts forming the background of this case are that petitioner Mumtaz Ali Jehangir filed this petition in which it is inter alia stated that he was residing as a joint family with his brother-in-law Nizamuddin who is working as Supervisor in Health department. Local Government Bungalow No. 3 belongs to defunct District Council, Khairpur which was allotted to his brother-in-law by the then Zila Nazim, Khairpur vide Order No. ZN/KHP/510, dated 12.12.2009. Since the date of allotment, petitioner along with his brother-in-law and other family members were residing in the bungalow.
It is further stated that the Respondents No. 2 to 4 were trying to evict the petitioner, on which he responded that bungalow was allotted to them lawfully and without show cause notice, the respondents cannot force the petitioner to vacate the bungalow. It is further contended that against highhandedness of Respondents No. 2 to 4, petitioner had moved an application under Section 22-A & B Cr.P.C to the Justice of the Peace and on its reaction, the Respondent No. 5 had deployed police force under the instructions of Respondents No. 2 to 4 and police officials trespassed into the bungalow on 13.6.2010 and thereafter, the petitioner was not allowed to enter into bungalow. The Respondents No. 2, 4, 5 & 6 have acted illegally without lawful authority and without issuing show cause notice for cancellation of allotment they are not competent to oust the petitioner from the house at their own will. Due to threats and harassment, the brother-in-law of the petitioner had gone underground, hence legal remedy is being exhausted by the petitioner.
3. This petition was filed in this Court on 14.6.2010 without impleading Nizamuddin who is alleged allottee of the bungalow. However, the order dated 16.6.2010, shows that the petitioner had filed an application under Order I, Rule 10 CPC for making party to Nizamuddin on the ground that the bungalow was allotted it his name and by consent of AAG, this application was allowed and N zamuddin was impleaded as Petitioner No. 2 and on 17.6.2010, amended title was filed. Along with the petition, the petitioner has filed an order issued by Pir Niaz Hussain Shah, Zila Nazim Khairpur on 12.12.2009 which it has been stated that Bungalow No. 3 of defunct District Council Khairpur previously known as community/emergency response centre is hereby allotted to Mr. Nizamuddin, Malaria Supervisor.
4. On 14.6.2010, commissioner was appointed by this Court to visit the premises and prepare the report whether petitioner was residing in the bungalow and, he has been unlawfully dispossessed.
In compliance of the order, commissioner submitted his report on 16.6.2010 in which he has inter alia contended that he visited the bungalow in question and came to know that DDO (Revenue)
Khairpur and Mukhtiarkar (Estate) Khairpur with the police assistance have obtained possession of premises on 13.6.2010. On 2.8.2010, again commissioner was appointed by this Court to visit the house and prepare inventory of belongings of the petitioner and keep the house in custodia legis by putting his locks and seal. In compliance of the Court order, same commissioner again visited the house and prepared inventory and sealed all the rooms including main gate.
5. The Respondents No. 2 to 4 have filed their joint comments in which they have stated that the petitioners illegally occupied the bungalow. Zila Nazim issued many letters from time to time to DCO, Khairpur, Sindh Bar and Chief Minister Sindh but the petitioners did not evict the bungalow though notice under Sections 3 & 5 of the Sindh Public Property (Removal of Encroachment) Act, 1975 was served upon him on 26.9.2009 and 7.10.2009. It is further stated that the petitioners have forged and fabricated the document. The alleged allotment order does not bear the signature of the then Zila Nazim. The outward No. 510 dated 12.12.2009 on so called allotment order is bogus for the reason that against this outward number in the record, the date is 31.10.2009 and not 12.12.2009.
The outward number' was issued to. Taluka Nazim Mirwah rNarding an application of Wali Muhammad Phul. In order to prove the contention, a certificate dated 15.6.2010, issued by Administrative Officer, District government Khairpur has been attached which shows that bungalow in question was not allotted to Petitioner No. 2 and in the same certificate it is further stated that allotment order produced by the petitioner is fake and fabricated document and it does not bear the signature of the then Nazim. Not only this, it is further submitted in the same certificate that outward No. 510 relates to a letter issued to Taluka Nazim, Mirwah regarding application of Wali Muhammad Phul. The answering respondents further submitted that the news regarding illegal encroachment of the petitioners was also flashed in the newspaper Kawish on 24.2.2009 and 25.5.2009. They further submitted that bungalow in question is A-category house which can only be allotted to officers of BPS 18-19, whereas the Petitioner No. 2 is the employee of Grade-05. Along with reply, said respondents have attached at least 13 letters and notices written from time to time regarding illegal encroachment including notices issued under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975. Besides that EDO (H) Khairpur, vide letter dated 15.6.2010 intimated to the D.0 (Revenue) Khairpur that the Petitioner No. 2 is drawing house rent allowance in monthly pay slip and also attached copy of salary slip. In addition to the aforesaid comments, few more documents were brought on record through separate statement filed by learned advocate for the Respondents No. 2 to 4 with which a letter of Pir Syed Niaz Hussain Shah, Ex-Zila Nazim is attached which he wrote to DCO Khairpur in connection with verification of allotment Order No. 510 dated 12.12.2009. In this letter, Ex-Zila Nazim has confirmed that no allotment order was ever signed or issued by him in favour of Petitioner No. 2 and his signature on the allotment order is fake and false. In order to strengthen his contentions more, a copy of work register, district council Khairpur has also been filed which shows that Outward No. 510 was issued to Taluka Nazim, Mirwah. Again a notice dated 24.9.2009 has been filed with the statement which was issued to the Petitioner No. 1 under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975 with the directions to remove the encroachment within a period of three days failing which the encroachment will be removed under Section 5 of the aforesaid Act.
6. We have heard the arguments of learned counsel appearing for the parties and also examined the entire material placed on record. On 14.9.2011, CMA 264/2011 and CMA 265/2011 were fixed for hearing. Court file shows that on 9.12.2010 this petition was dismissed for non-prosecution, therefore, petitioners filed CMA No. 264/2011 for restoration of petition while CMA 265/2011 was filed by the respondents for de-sealing the property in question. By consent of learned counsel, on 14.9.2011, we had heard not only restoration application but the main case also and all the learned counsel agreed to this proposal and argued restoration application as well as main case.
7. The restoration application is supported by personal affidavit of Petitioner No. 1, who is also an advocate by profession and in support of restoration application, it was argued by his counsel that matter was fixed in this Court on 9.12.2010 on which date, the counsel for the petitioner was out of station, therefore, Mr. Qurban Ali Malano advocate had obtained signature of petitioners on Vakalatnama with this assurance that he will file the same in the Court but due to his preoccupation in some other cases, he could not appear when the matter was called and the petition was dismissed for non-prosecution. On this application, Gulsher Solangi, DDO (Revenue) filed his counter-affidavit in which he mentioned that application is time barred for three days and on 9.12.2010, he had seen the petitioner in the Court premises and his advocate was also standing outside the Court and immediately after dismissal of petition, his advocate entered into Court room. In the counter-affidavit, he has also shown details of previous advocates appeared in this matter to represent the petitioners. Since plea has been taken by the petitioners that on the day when the petition was dismissed in non-prosecution, their advocate was out of station and due to pre-occupation of Mr. Qurban Ali Malano, he could not file Vakalatnama on their behalf, therefore, in the interest of justice, we are of the view that instead of dismissing restoration application on mere technicalities, it would be appropriate to decide bone of contention on merits. Consequently, the restoration application is allowed and petition is restored to its original position.
8. Now we would like to advert to the arguments advanced by the learned counsel for the parties in support of their case. The learned counsel for the petitioner argued that allotment order is a genuine document and the respondents have unlawfully dispossessed the petitioners on 13.6.2010.
He further argued that no notice was issued under the Sindh Public Property (Removal of Encroachment) Act, 1975. The learned counsel denied the documents produced by the respondents along with their comments and statement and he argued that all the documents produced by the respondents are false, fabricated and bogus documents and the same have been filed to simply cover up illegalities committed by the respondents by unlawfully dispossessing the petitioners from their lawful abode. On query of this Court, whether, after alleged unlawful dispossession, the petitioners had filed any suit for recovery of possession or complaint under the Illegal Dispossession Act, 2005, the petitioners' counsel replied in negative.
9. Conversely, the learned counsel for the Respondents No. 2 to 4 argued that the allotment order produced by the petitioners along with memo. of petition is forged and fabricated document and it is evident from various documents filed by the respondents along with their comments and by way of separate statement that the petitioners were under unlawful possession and after applying proper procedure envisaged under the Sindh Public Property (Removal of Encroachment) Act, 1975, action was taken against the petitioners with due process of law. He further argued that Ex-Zila Nazim has himself admitted in his letter that he has never signed any allotment order in favour of the Petitioner No. 2 and even it is a matter of record that outward number assigned to the so called allotment order was also fake. He further pointed out that pay slip of the Petitioner No. 2 shows that he was enjoying. house rent allowance and it is quite strange that on one hand he was allegedly allotted accommodation by the government while on the other hand he was also drawing house rent allowance which is totally inconsistent with the plea of petitioners.
10.The learned AAG adopted the arguments advanced by the learned counsel for the Respondents No. 2 to 4. He also asserted that property in question is owned by the government and the encroachment was lawfully removed and the possession was lawfully recovered under the provisions of the Sindh Public Property (Removal of Encroachment) Act, 1975.
11.The foremost question which is to be considered first by us is whether Petitioner No. 1 has any locus standi to invoke, the extraordinary jurisdiction of this Court. It is a basic principle that person seeking judicial review of the administrative or quasi judicial action must show that he is trying personal interest in the Act. An application in a representative capacity is not maintainable. It is a matter of record that initially this petition was moved by the Petitioner No. 1, who had no legal character or locus standi to challenge the action of the respondents on the sole ground that bungalow in question was never allotted to the Petitioner No. 1. However, after institution of the petition, an application was moved by the Petitioner No. 1 to join Nizamuddin as Petitioner No. 2, in whose favour allotment order was allegedly issued. It is sine qua non for invoking the jurisdiction of this Court through Constitutional Petition that the petitioner must be an aggrieved person and he must have locus standi for availing such jurisdiction. The honorable Supreme Court in its judgment reported in PLD 2007 SC 52 (Hafiz Hamadullah vs. Saifullah Khan and others) has held that constitutional jurisdiction of High Court can be invoked by an aggrieved person, which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused him something which he was legally entitled to.
It is to say requirement that the person invoking constitution jurisdiction under Article 199 of the Constitution has to establish that any of his legal or fundamental rights guaranteed under the constitution has been violated resulting in legal loss.
12.In another Judgment reported in PLD 2007 SC 386 (Province of Balochistan vs. Murree Brewery Company Ltd.), it was held that word aggrieved or aggrieved party has not been defined in the constitution, however, from time to time which has been interpreted by the superior Courts in the given circumstances of the case. The honorable Supreme Court in this judgment quoted its various pronouncements wherein it was observed that writ petition can be maintained by a person provided he be an aggrieved person and in order to be an aggrieved person it is imperative to show any of his property or personal right as recognized by law, to be invaded or denied. Person unable to show any of his right as recognized by law to be invaded or denied has no cause of action to seek any relief. In the judgment reported in 2011 SCM R 848, (N.W.F.P. Public Service Commission vs. Muhammad Arif), the honorable Supreme Court has held that it is well settled by now that the right which is the foundation of an application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence to give jurisdiction to the High Court in the matter. Unless whatever right, personal or otherwise, on which the application is based is established, no order can issue under Article 199 of the Constitution. Keeping in view the aforesaid dictum laid down by the honorable Supreme Court, we have no hesitation to hold that the Petitioner No. 1 is not an aggrieved person and he cannot maintain this petition. However, since Petitioner No. 2 has already been arrayed by the order of this Court who was allegedly issued allotment order in his favour, therefore, at the best, he can maintain petition being an aggrieved person but off course subject to an undisputed proof of the denial of his some legal right by someone which is not based on factual controversy or requiring evidence.
13.The main controversy which is revolving around the parties which is in fact the only bone of contention between them is whether allotment order dated 12.12.2009 is a genuine document or it was engineered or fabricated by the petitioners. In rebuttal of this order, Respondents No. 2 to 4 along with their comments have produced many documents to show that the allotment order is forged document. In fact, Respondents No. 2 to 4 produced many letters including notices which were conveyed by them to the alleged encroachers under the provisions of the Sindh Public Property (Removal of Encroachment) Act, 1975 and in few notices time was also granted to vacate the premises in question. Comments of the respondents further disclosed that bungalow in question is A-Class category which can only be allotted to officers of BPS-18-19 while it is further submitted in the said comments that the Petitioner No. 2 is an employee of BPS-05. It has been further contended that Ex-Zila Nazim denied to have issued any allotment order in favour of the Petitioner No. 2 and in the same letter, he further denied outward number which was in fact allotted to some other letter communicated to some other person and it has been stated that the petitioners have encroached upon the government property for which action was taken under the Sindh Public Property (Removal of Encroachment) Act, 1975.
14.After examining the entire material, we have reached to an irresistible conclusion that the contentions of the parties cannot be decided without evidence and there is serious controversy between the parties for which this Court cannot enter into factual realm. This Court has no jurisdiction to embark upon an exercise to determine intricate, contested and complicated question of facts. The resolution of such like controverted issues is ordinarily left to the proper forums, prescribed by law, indulgence in such exercise would have the effect of pre-empting and enforcing upon the jurisdiction lawfully vested in the competent Courts.
15. Article 199 of the Constitution is not intended for deciding the disputed facts and thwarts the procedural law. At this juncture, we E would like to refer to the judgment reported in 2001 SCM R 1493 (Mst. Kaniz Fatima vs. Muhammad Salim), in which, the honorable Supreme Court has held that controverted 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, constitutional petition would not be competent and the relief in constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gains. 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 vs. Deputy Commissioner, Faisalabad).
16.In the case in hand, serious disputed questions of facts are involved and the claim of the petitioner is that the allotment order was genuine. On contrary, the respondents have pleaded that it is a forged and fabricated document and in support of their contention, various documents were placed on record. This controversy cannot be decided in the writ jurisdiction, in particular where equally efficacious, adequate and alternate remedies are straightforwardly accessible to the petitioner such as to file the complainant under Illegal Dispossession Act or file a civil suit for possession if he was dispossessed from the property in question by the respondents without due process of law. Since, the respondents have come forward with an .unequivocal plea that they have removed the encroachment from government property with due process of law under the provisions of Sindh Public Property (Removal of Encroachment) Act 1975, therefore, the petitioner has another option at his ease and leisure to seek appropriate remedy provided under the aforementioned Act itself for the protection of his alleged right and entitlement.
17. In sequel to above discussion, this petition being meritless is dismissed in limine. So far as CM.A No. 265/2011 is concerned, the order passed by this Court on 2.8.2010, whereby the property in question was taken into custodia legis is hereby vacated/recalled and the keys are directed to be handed over/released forthwith to the authorized representative of District Government, Khairpur after proper verification and documentation. However, the Petitioner No. 2 may immediately approach to the Respondent No. 2 to 4 for the return of his household articles which are more particularly described in the inventory dated 4.8.2010 prepared by the commissioner in pursuance of an order dated 2.8.2010. It is further directed that when the Petitioner No. 2 will approach the Respondent No. 2 to 4 for the return of his aforesaid articles, same shall be returned back to him forthwith after necessary documentation.