MUHAMMAD NAEEM ANW AR, J. The petitioner through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has prayed for the following relief:- "I. The impugned acts of the respondent No.9 and others for raising construction over the public sewerage drain/Nala near the house of the petitioner and thereby causing blockage of the sewerage water and also constructing a Plaza over the public sewerage drain which has not only been blocking the sewerage water flow but also violating the privacy of the house of the petitioner and other inhabitants of the locality .
II. Respondents Nos.1 to 8 and any other authority responsible for taking actions against the respondent No.9 must at once stop the respondent No.9 and others from their illegal acts of raising construction over the public sewerage drain/Nala near the house of the petitioner and thereby causing blockage of the sewerage water and also constructing a plaza over the public sewerage drain which has not only been blocking the sewerage water flow but also violating the privacy of the house of the petitioner and other inhabitants of the locality and must at once demolish the same and clear the sewerage flow and protect the privacy of the house of the petitioner and/ or demolish the illegal construction."
2. Brief facts of the case as per the instant petition are that an application was submitted by the petitioner along with Col. Syed Hamid Hussain and Ishaq Khalil to the Deputy Commissioner by contending therein that adjacent to Shell Petrol Pump, situated on University road, Peshawar, seven story building is under construction, which is affecting the privacy of the residents of locality, the approval of which was not granted by the PDA since 1996. It was also averred that the boundaries of the property on which the construction is made, is not properly determined and that the residents of the locality have sought their redressal from TMO office but no action was taken. The said application was received by the office of the Deputy Commissioner, Peshawar on 03.02.2017.
Similar application was also submitted on 19.09.2017 to Deputy Director (Coord) Complaints Cell National Accountability Bureau Block-III, PDA Complex, Phase-V, Hayat Abad, Peshawar wherein it was contended that the petitioner along with Col. S. Hamid Hussain have filed the complaint against Mr.Ajmal Khan on the basis of which he received a call up notice to attend the office of Mst. Uzma Pervez, Investigation Officer, National Accountability Bureau KP Block-III, PDA Complex, Phase-V, Hayat Abad, Peshawar on 10.03.2017.
It was also added that Mr.Ajmal Khan has completed three stories plaza, under construction, on Nala/Sanitation main water steam belonging to Government property with the connivance of relevant department due to which the people of locality are in great trouble.
3. Respondents Nos.4, 5 and 9 were put on notice to submit their para-wise comments. Respondents Nos.4 and 8 have filed their respective comments separately whereas respondents Nos.3 and 6 have submitted written reply to the petition.
4. The learned counsel for the petitioner contended that respondent No. 9 has constructed a plaza without any sanction/approval from the authority concerned and has encroached upon the public property as well. He next argued that respondent No.9 has made construction on the water sewerage drain, which blocked the natural flow of water and created trouble for the inhabitants. He also added that privacy of the house of the petitioner has also been affected. The petitioner annexed along with the petition copies of mutations Nos. 11971 and 11973 in respect of the property bearing Khasra No. 4894, measuring 15 kls- 09 mls, (ghair mumkin abadi), whereby total to the extent of 02 kanals-03 marlas, in column of cultivation, were shown to have been transferred in favour of Tahira Sajid (wife of the petitioner). The worthy counsel for the petitioner has summarized his points as follows:-
(a) The respondent has made encroachment on the public as well as private property .
(b) that the people at large are the affectees of the alleged encroachment and
(c) that the alleged construction has disturbed the privacy of the house of the petitioner .
5. The respondents in their comments have negated the contentions by raising many legal and factual objections.
6. We have gone through the record with the valuable assistance of the learned counsel for the parties and have heard the arguments.
7. It is interesting to note that during the pendency of this writ petition, a commission was appointed in order to determine whether the sewerage drain has been blocked through construction of plaza. The local commission, as per direction of this court, has submitted his written report with the following conclusion:- "1. Towards Southern side of the building through there is open water channel measuring 7 feet 9 inches (is available and uninterrupted) at foundation level of basement, but owner has extended his limits by constructing 5 feet chajja at the roof level of the basement and, thereafter, multistory building has been constructed from the roof level of the basement till its last story.
2. Towards Northern side of the building on extension of 2 feet 9 inches at the roof level ground floor has been made beyond the limits of the ownership and thereafter remaining stories have been constructed.
3. Five feet towards Eastern side has been covered over the water channel and has been developed as stair case and gate in order to create an approach for the building at the ground level of the building."
8. After considering submissions of the petitioner and scanning the record, we are of the view that; firstly, nothing is available on record to substantiate the contention of the petitioner regarding the alleged encroachment either in public or private property. Law has provided the mechanism for removal of encroachment from the properties, either public or private, and for aggrieved person a specific forum is available, where under he shall be dealt with, but in any case, constitutional petition cannot be entertained, secondly, neither the petitioner is representative of the people at large nor any list has been appended with the petition. Moreso, this petition has not been filed in representative capacity as provided under Order I, Rule 8 of the Code of Civil Procedure, 1908, thirdly , the matter of privacy of the house of petitioner being a factual controversy cannot be entertained.
9. The entire submissions of the petitioner revolve around;
(i) factual controversy and
(ii) the availability of alternate remedy.
10. Besides, a constitutional petition under Article 199 of the constitution of Islamic Republic of Pakistan, 1973, is for the enforcement of clear legal right and not otherwise, meant for establishing a right which, in fact, is free from doubt. Of course, a doubtful/disputed question of fact cannot be seen under constitutional jurisdiction under Article 199 of the Constitution. Moreover , a constitutional jurisdiction is not meant for disputes relating to determination of the boundaries of the property . It is need less to say that such remedy is available under general law. Reliance is respect of the factual controversy can be made on the case titled Secretary to Government of the Punjab v.
Ghulam Nabi (PLD 2001 SC 415 ), wherein it has been held that:- Art. 199--Constitutional jurisdiction of High Court--Scope ---Disputed question of fact--Forums available in the hierarchy under the relevant law had decided all the controversial questions on the basis of record and in accordance with law--Interference by High Court--- Scope--High Court could not go into disputed questions of fact in exercise of its constitutional jurisdiction.
In another case titled Fida Hussain v. Mst Saiqa (2011 SCMR 1990 ), a similar question has also been decided by the Hon'able apex Court. The relevant portion of the judgment is reproduced as under:- It is well settled by way of plethora of case law laid down by the superior Courts that the High Court is not to resolve the disputed question of fact in exercise of constitutional jurisdiction under Article 199 of the Constitution.
Reliance is also placed on the cases titled Abdul Fatah Bhutto and others v. Election Commission of Pakistan through Secretary and three others (2014 CLC 639) and Ghulam Muhammad Ali v. Province of Sindh through Secretary Home De Department and 7 others ( 2016 MLD 65 ).
11. Significantly , when an alternate remedy is provided then the constitutional jurisdiction cannot be exercised.
Reliance is placed on the case titled Pir Ishfaq Ahmad v. Deputy Commissio ner/Land Acquisition Collector Charrsada and another (2018 CLC Peshawar 449) and Abdul Qadir Farooqui v. The Federal Ministry of Finance and others (2018 CLC Sindh 758 ).
12. Keeping in view all the above discussion, we are of the considered opinion that the petition is not only without any merits but also misconceived and is dismissed, as such, in limine with no order as to costs.