' KHADIM HUSSAIN M. SHAIKH, J.---Through this petition, the petitioner has sought for enforcement of settlement (agreement) allegedly arrived at between him and the respondent No,8, whereby, an alternate plot No,194, admeasuring 2450 Sq. Ft. Out of survey No,165, Deh Gujo, situated in Municipal Truck Stand, Hala Naka Road, Hyderabad, city with its possession was allegedly agreed to be given to the petitioner by the respondent No,8.
2. Briefly stated facts of the case are that a plot bearing No,11, admeasuring 2040 Sq.Ft. Situated in Prime Commercial Location in Municipal Truck Stand Hala Road, Hyderabad City was allegedly leased out to the petitioner and his brother Abdul Ghaffar by the Municipal Corporation Authorities, Hyderabad for 99 years and then the aforementioned plot was allegedly given to the petitioner by a family settlement said to have been arrived at between their family members; the petitioner alleged to have approached for an entry in the record of rights in his favour, which is in process; eight shops stated to have been constructed by the petitioner in the aforesaid plot No,11, situated in prime commercial location, are on rent with different tenants; Constitutional Petition No,D-968 of 2010, earlier filed by the petitioner's brother namely Abdul Ghani, was disposed of along with other Constitutional Petitions bearing Nos.D-640, D-917 and D-990 of 2010, vide order dated 19.08.2010, in terms of the statement filed the respondents Nos.2, 4 and 5 stating therein that they will not construct project of fly over bridge and roads over any portion of the Municipal Truck Stand plots. It is further averred that after disposal of the above Constitutional Petition a settlement (agreement) alleged to have been arrived at between the respondent No,8 and the petitioner, whereby an alternate plot No,194, admeasuring 2450 Sq. Ft. Out of survey No,165, Deh Gujo, situated in Municipal Truck Stand, Hala Naka Road, Hyderabad, city was agreed to be provided to the petitioner with compensation in exchange of the aforementioned plot No,11; the petitioner made efforts to get the alleged agreement enforced by repeatedly approaching the respondents, but to no avail and instead on 31.01.2011 the respondents Nos.2 to 10 came at the site and demolished the shops of the petitioner, causing heavy loss to the petitioner, hence this petition.
3. The respondent No,8 has filed his para wise comments, wherein he partly denied the allegations and the contents of the petition. The parawise comments filed by the respondent No,8, were adopted on behalf of the respondent No,1 . The respondent No,5 has filed his separate comments and whereas the respondents Nos.2 and 3 have jointly filed their comments, wherein all the said three respondents Nos. 2, 3 and 5 have stated in paragraph-2 thereof that plot No,11 is outside the limits of occupied land of Municipal Truck Stand; it is within the area of lined Channel, which is Government land; the fly over bridge along with parallel roads are being constructed near Hala Naka Road, entirely on the. Government land viz. About 100 Ft. Wide area of the lined Channel/Akram Wah, as verified by the Revenue Department; the part of project is nearly completed over the said width of Government land of Akram Wah.
4. Learned advocate for the petitioner has mainly contended that after the disposal of Constitutional Petition No,968/2010 as per settlement (agreement) between the respondent No,8 and the petitioner, a Plot No,194, admeasuring 2450 Sq.Ft. Out of survey No,165, Deh Gujo situated in Municipal Truck Stand, Hala Naka Road, Hyderabad, city was agreed to be given to the petitioner in lieu of plot No,11, Municipal Truck Stand, Hala Naka Road, Hyderabad, city; the petitioner approached the respondents to enforce the aforesaid agreement, but his efforts yielded no fruits and instead his shops were demolished. He, therefore, requests that the respondents may be directed to enforce the aforementioned agreement and hand over the physical possession of the aforesaid plot No,194 to the petitioner.
5. Learned advocate for the respondents Nos.2 and 3 has contended that the project namely fly over bridge and roads in question is being constructed on the earlier alignment and according to the PWD specifications and that too entirely on the Government land of lined Channel (Akram Wah), and no area of any private person or even of Municipal Truck Stand in question comes therein, he states that work of the aforementioned project shall be done in terms of the order dated 19.08.2010, passed by this Court, he further states that in view of such matter of the fact, the alleged settlement (agreement) between the respondent No,8 and the petitioner is beyond his understanding, he however, states that for the sake of arguments even if it is presumed that the alleged agreement is arrived at between the respondent No,8 and the petitioner, the same cannot be enforced through these proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and the remedy, if any, for its enforcement is available to the petitioner before the competent civil court.
6. Learned A.A.G adopting the arguments advanced by the learned advocate for the respondents Nos. 2 and 3, has further contended that this petition is not maintainable in view of the availability of alternate efficacious remedy of filing suit by the petitioner to get the alleged agreement, if any, arrived at between the petitioner and the respondent No, 8 specifically enforced.
7. The learned advocate for the petitioner in rebuttal submits that despite availability of remedy of filing suit, this court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, can get the alleged agreement enforced.
8. Manifestly, the matter is involving various intricate questions of fact and law such as whether the alleged plot No,11 will be utilized in the aforementioned project fly over bridge along with parallel roads being constructed near Hala Naka Road, whether the petitioner has any valid entitlement over the aforementioned property, whether the settlement (agreement) allegedly arrived at between the petitioner and the respondent No,8 is legal, valid and enforceable etc.; in the wake of such intricate, disputed questions of fact and law, the learned advocate for the petitioner was asked to satisfy the Court as to how this petition is maintainable, but the learned advocate for the petitioner has not been able to satisfy the Court on the maintainability of this petition.
9. This court is not persuaded to accept the argument of the learned counsel for the petitioner that despite availability of an adequate remedy of filing suit before the competent court of law, this court can exercise its extraordinary jurisdiction under the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, firstly, the alternate adequate remedy by way of filing suit for seeking specific performance of the agreement allegedly arrived at between the petitioner and the respondent No,8 namely Fakhir Shakir, Administrator Taluka Municipal Administration City, Hyderabad is undisputedly available to the petitioner, as for the exercise of extraordinary jurisdiction under Article 199 ibid, the foremost condition is non-availability of any other adequate remedy: secondly, the complicated questions of fact and law such as to the entitlement or vested interest of the petitioner in the aforementioned property; validity of the aforementioned alleged agreement its enforceability and legal basis for granting the relief in question will be determined by the competent court of jurisdiction on the basis of the evidence to be adduced by the parties and such factual controversies between the parties, needing serious probe and evidence for their resolution also cannot be sifted in these proceedings which are summary in nature, therefore, this petition is liable to be dismissed. Reference can be made to case of Ijaz Hussain Suleri v. The Registrar and another (1999 SCM R 2381), wherein the Hon'ble Supreme Court of Pakistan has held that a matter necessitating inquiry into the case could not be gone into the Constitutional petition.
10. Above are the reasons of short order announced by us on 17.03.2016, whereby this petition and listed applications were dismissed with no order as to costs.