This is second round of litigation. In earlier round, a direction was given in W.P. No. 39239 of 2015 in following words: "3. In view of the above, the findings of the D.G. LDA in the order dated 27.8.201 1 with regard to requiring the petitioner to have the possession restore d is set aside and the matter is sent back to the D.G LDA for decision afresh, either himself or through a delegate duly deputed in this regard on the precise question whether Section 39 is applicable to the facts and circumstances of the case and whether the petitioner is entitled to rely upon it to require the LDA to have vacant possession restored to the petitioner . This shall be done within a period of three months from the receipt of the order of this Court."
In compliance of the direction, the impugned order dated 02.05.2017 was passed and is challenged through this petition. Operative part of the impugned order is reproduced hereunder: "The matter has been reviewed in light of the direction of the Honourable Lahore High Court, Lahore. Arguments have been heard and record has been examined afresh. It has been surfaced that the predecessor-in-interest of the petitioner showed their willingness to accept the adjustment/exemption of the subject plot i.e., Plot No, 35-C New Muslim Town at their own risk and cost, which was occupied by encroachers in shape 26 quarters existed thereon at the time of issuance of the Interim Adjustment/Exemption letter . Section-39 of Lahore Development Authority Act, 1975 (as amended by Act XXVI of 2013) is neither of any help to the applicant nor be applied retrospectively on the subject issue of the petitioner .
In view of the above mentioned facts and circumstances of the case, the request of the petitioner to evict the occupants over property number 35-C New Muslim Town, Lahore and hand over the vacant physical possession to him cannot be entertained and is hereby rejected accordingly . The petitioner may seek remedy under the law for eviction of occupants before the Court of competent jurisdiction."
2. Petitioner's claim is that respondent LDA by invoking Section 39 of the Lahore Development Authority Act, 1975 ("Act of 1975 ") is bound to get the quarters in question vacated. Whereas learned counsel for the petitioner submits that the occupants of these quarters were originally tenants of petitioner's predecessor , which is written even in the gift deed through which, title was transferred in petitioner's name.
It is not denied that these quarters exist in LDA scheme and were adjusted while approving the scheme, however , it is apprised, as is written in the impugned order , that action against the illegal occupants can only be taken if petitioner obtains decree from the Court of competent jurisdiction.
3. In response, learned counsel for the petitioner submits that there was a litigat ion pending between the illegal occupants and LDA wherein LDA claime d their ownership and possession of the land. Nevertheless, they are deviating from their stance before this Court. It is reiterated that based on their claim before the Civil Court, respondents are bound to take action under Section 39 of the Act of 1975, therefo re, this petition in the nature of mandamus was filed.
On learned counsel for respondent-LDA's objection, learned counsel for the petitioner is confronted, why the occupants of the quarters in question have not been arrayed as party to this petition. He submits that their right to claim against the property has already been declined by the Court of law. On a specific question, whether the petitioner was party in litigation before the Civil Court, the answer is in negative.
4. Heard. Record perused.
5. In this Court's opinion, this case is not a case of simpliciter direction to the respondents. Needless to observe that a direction can only be given in presence of admitted facts, where it is discernable that respondent being functionary relating to the affairs of Federation or the Province is not performing its statutory duty. The assertions of the parties in this petition show that number of facts are in dispute, which need to be resolved on the basis of evidence. By now it is settled law that this Court cannot enter into factual inquiry under Constitutional jurisdiction, even if resolution is required on the basis of some documents. The Court to evaluate evidence and decide the dispute is the Court of plenary jurisdiction.
Without prejudice to the above reasons, there is force in respondent's objection that occupants of the quarters have not been arrayed as party to this petition.
6. This petition being devoid of merits is dismissed.