' SALAHUDDIN PANHWAR, J.--- The petitioners have invoked the jurisdiction of this Court by filing instant constitutional petition with the prayer that the allotment of an amenity plot by Administrator Union Council, Rani Pur is illegal and without lawful authority.
2. The facts set out in this petition are that a Government open plot having area of 5000 Sq. Feet, situated in mid of Ranipur, used as playground, was occupied by the respondent No,1 and respondent No,1 was raising the construction over the plot; the citizens of Union Council along with petitioners, noticed such constructions, verified the occupation of respondent No,1 over the said plot and came to know that same is under illegal occupation; citizens immediately agitated this issue before the high ups by making processions, sending applications to the higher authorities but all in vain; thus petitioners have approached this Court with a prayer that such occupation over play ground, is illegal, without lawful authority and is liable to be cancelled.
3. Respondent No,1 has filed counter-affidavit, in which he has disclosed that neither the said plot belongs to Government, nor the answering respondent is raising any sort of construction over it or has got any concern whatsoever with the said plot, but in fact the said plot belongs to one Sayed Yousif Ali Shah son of Pir Sayed Ghulam Moin-uddin alias Sayed Haji Bagan Shah Jeelani resident of Ranipur. Whereas Respondent No,2 has filed his comments, stating therein, that the plot bearing No,1630 situated in Mohalla Ranipur belongs to Pir Syed Yousif All Shah, the same is his personal property as the .Then Nazim. Union Council, Ranipur has issued such certificate of ownership in favour of said Yousif Ali Shah.
4. Counsel for the petitioners has reiterated the contents of the petition and has further argued that respondent No,1 has occupied the amenity Plot through forged documents; neither plot in question has ever been allotted to him nor U.C. Nazim was empowered to allot the same to the respondent or any body else; besides above under any circumstances amenity plot could not be allotted in favour of respondent or any body else. He lastly contended that under the garb of so-called possession certificate respondent No,1 has illegally occupied a valuable plot with object to convert the same into commercial purposes. He has relied upon the case of Jam' and others v Taluka Nazim Taluka Municipal and others (2010 CLC 860).
5. Conversely, counsel for the respondent No,1 has inter alia contended that the respondent No,1 has purchased the plot in question through a registered sale deed in the sum of Rs,300,000/-, thus the respondent No,1 is in legal occupation of the plot and has every right to raise any type of constructions over the said area; this Court has got no jurisdiction to decide the disputed question of fact and cancel the registered sale deed in writ jurisdiction; the petitioners have no locus standi to file this petition. In support of such arguments, he has relied upon the case of Punjab Small Industries Corporation v Ahmed Akhter Cheema (2002 SCM R 549),M.A. Hamid Ali Bux v City Government (PLD 2003 Kar. 162) and Lahore Cantonment Cooperative Housing Society Limited v.
Dr. Nusratullah Choudhery and others (PLD 2002 SC 1068)
6. Mr. Ghulam Abbass Balouch Deputy Commissioner, Khairpur present in Court, has categorically stated that the Plot in question is an amenity plot and same was reserved for play ground and the respondent: No,1 has illegally occupied the same with the connivance of former U.C. Nazim and Government Officials. The documents annexed with the petition are bogus and the same have been manipulated.
7. We have considered the submissions made by the learned counsel and have scanned the record.
8. Since the question, in issue before us, that an amenity plot,meant and used for play ground, without having any number situated in Ranipur Town, has been handed over by the Administrator Town Committee, on the basis of possession certificate. Thus we have to examine whether such exercise is legal, valid and in accordance with the law though we are in clear view that there is no cavil on this proposition of law that disputed fact cannot be resolved in writ jurisdiction, but simultaneously it is also settled authoritative view that Constitutional jurisdiction is intended primarily for providing an expeditious remedy, where illegality of action of executive or other authority can be established.Without elaborate inquiry into the complicated or disputed fact, therefore, one would not be justified in questioning jurisdiction of this Court under Article 199 of the Constitution when the petitioner prima facie establishes illegality of action of executive or other authority without elaborating any such inquiry.
9. Now we advert upon the facts of the subject matter to examine in context of above proposition.
Perusal of record reflects that five possession certificates were issued in favour of Syed Yousif Ali Shah, 1st Possession Certificate was issued by Administrator Town Committee, Ranipur on 23-10- 1996, 2nd Certificate was issued by Nazim Union Council, Ranipur on 27-11-2001, 3rd Certificate was issued by Mukhtiarkar Sobhodero on 20-2-2002, 4th Certificate was issued on 8-2-2002 by Nazim Union Council, Ranipur and 5th Certificate was issued by Nazim Union Council, Ranipur in 2008.
Certificates were issued on the statement of local person and on the recommendation of Member Union Council. All certificates pertain to the possession only, but no where it is mentioned that any allotment was made in favour of Syed Yousif Ali Shah hence it can safely be said that only possession was recognized through these certificates without status of it being legal, or otherwise.
We have minutely examined all the documents relating to the plot in question, but no where it is evident that any sale consideration was paid by the occupant or any mutation fee was deposited in respect of plot in question. Moreover, it further reveals that the petitioners have filed copy of Notification through a statement, which is available at addenda, which also shows that the Government of Sindh imposed the ban on allotment, grants, leases or any type of transfer/mutation of State land in Urban and Rural areas, and the same is reproduced as under:--- "Notification.
' NO:AS(G)S&GAD/2/93:The Government of Sindh is pleased to impose ban on allotments, grants, leases or any type of transfer and mutation of State land in Urban and rural areas including forest lands belonging to the provincial Government, Board of Revenue, all attached Departments. And Autonomous Bodies under the administrative control the provincial Government with immediate effect."
10. According to the record, it is not alleged that the above Notification was not in operation at the time of issuance of possession certificates of the plot in question by the Administrator nor the respondents have questioned the legality of the above notification hence it is clear and patent on record that the then Administrator, Nazim and Mukhtiarkar illegally and without any authority issued possession certificates in respect of the plot in question in favour of Syed Yousif Ali Shah, during ban period. Thus possession certificate(s) are without any foundation and it will be suffice to refer here the well-established principle of law that an illegality/wrong continues to be an illegality/wrong and multiplicity whereof does not change the character and nature of such an illegality and on any count, it cannot be treated as legality. It is also revealed that in the year 1996, two letters dated 18th August, 1996 and 16th December, 1997, were addressed to the Secretary Local Government of Sindh by the Administrator Town Committee Ranipur, which discloses that warning was issued regarding the illegal occupation of said plot.
11. The important question of this case is that the then Administrator, Nazim and Mukhtiarkar, Union Council Ranipur, were not having powers to issue possession certificates of an amenity plot to a E private person for the construction of commercial plaza such access to any administrator to utilize any amenity plot reserved for public purpose to any other private purpose is not provided under any law. It is also a settled proposition of law that if action is taken by a person, who is not authorized to take such action, the same would be null and void under the law. It is a clear cut case of malfeasance by the Administrator, Nazim and Mukhtiarkar, therefore this Court has every right to correct G an illegality and save the general public from the nuisance of such type of officers, who have no respect of the law.
12. So far as, the contention of counsel for respondent No,1 that respondent No,1 is in occupation of subject matter/plot through registered sale-deed and this Court has no jurisdiction to cancel the registered sale deed, it is worth to addhere that this petition was filed on 24-2-2010, whereas registered sale deed is effected on 7-2-2011 i,e, during pendency of this petition. Moreover the contents of registered sale deed 'reflect that no litigation is pending, which shows that respondent No,1, with ulterior motives, has tried to oust the jurisdiction of this H Court by arranging after thought instrument in shape of registered, sale deed in his favour but it is strange that when respondent No,1 in his comments has stated that he has no concern with the subject-matter, then under what circumstances, he became owner of the same. This also shows that the respondent No,1 has attempted to reprobate what he approbated which is not permissible under the law nor can be approved. All these circumstances give inference that respondent No,1 cannot claim the same property in any manner, for which he has categorically stated that he has no concern with the subject matter plot. Besides this, it is also well settled principle of law that one cannot give a better title that I what he holds. Since admittedly there had only been possession certificate(s), and on basis of possession certificate there can be no legal character i,e, in absence of title which is undisputed fact in hand. The title of the respondent No,1, if any, is also hit by well settled proposition of law that what one cannot obtain directly he cannot get the same indirectly.
13. With profound respects to the Judgments of honourable. Supreme Court relied upon by the respondent's counsel, we say that same are not applicable to the facts and circumstances of this case. The case of Punjab Small Industries (supra) pertains to the major penalty of retirement from service and the case of Lahore Cantonment (supra) is related to the contract between Hospital and Government regarding construction of Hospital whereas the decision delivered by this Court in the case of Jam and others (supra), it is held that allotment of amenity plot can be cancelled at any time and the same is very much applicable in this case.
14. Here we would like to endorse that the judgment of High Court and Supreme Court to the extent, it decides a legal position, question of law or is based upon principle of law or enunciate/interpret law, statutory rule etc, is not only binding on all subordinate Courts, tribunal but is also binding on all public and statutory functionaries etc, unless off course, such decision is revisited by the Court in review, revision, appeal or a larger bench has taken a different view. Since the above referred judgment of this Court has completely set out the purpose and scope of the amenity plot and even held that allotment of an amenity plot for any purpose other than amenity would be in violation of law and I negation of right of all citizens, who had right to enjoy and avail the M benefit of that facility.
15. As discussed above and keeping in view the judgment of this Court, reported in case of Jam and others (supra), we find that this is a fit case to exercise a writ of mandamus. Thus possession certificate of N ownership issued in favour of Pir Syed Yousif Ali Shah is hereby declared illegal and of having no legal effect and all subsequently proceedings on the basis of such possession are also illegal under the law because once the foundation is illegal whole superstructure, based thereon, is bound to collapse.
16. Before parting with this order deputy commissioner Khairpur is directed to take over the possession of plot in question, and keep it for playground, with all necessary requirements, for the use of citizens of Ranipur and ensure that status Of said amenity plot will not be changed in any manner.
17. This Petition was allowed by short order dated 19-9-2012 and these are the detailed reasons for the same.