KHADIM HUSSAIN M. SHAIKH, J.---- Petitioners Nasir Rahim son of Abdul Rahim and Faisal Murad son of Shujaat Ullah Khan, claiming themselves to be the owners of land admeasuring 8-25 acres situated in Deh Thoming, Tapo Gujro, Taluka Gulzar-e-Hijri, Scheme 33 District East Karachi, which is commercial property , located on superhighway , have filed this petition with the following prayers:-
(i) To suspend the operation of the impugned order of respondent No.2.
(ii) To declare that the act of the respondent No.2 is perverse, illegal, without lawful authority and transgressed the authority vested upon him.
(iii) T o direct the respondents to act strictly accordance with law .
(iv) T o restrain the respondents not to create any third party interest in subject land.
(v) To direct the respondents Nos.6 and 7 to provide protection to the petitioners and their property .
2. The learned Additional Advocate General and learned counsel for respondents No.2, placing on record the written reply of respondent No.2 along with copies of several papers including the order dated 20.08.2012, passed by the Hon'ble Supreme Court of Pakistan in Suo Motu Case No.16 of 2011, have mainly contended that the lease of the subject commercial property in the name of one Lutufullah was not in accordance with the law and the land grant policy and its regularization order was issued during the ban imposed by the Hon'ble Supreme Court of Pakistan in Suo Motu Case No.16 of 2018 vide order dated 28.11.2012 and as such the same was withdrawn vide letter No.01-473-02/SO-I/565 dated 20.10.2017; that the petitioners have no right or title over the subject Government commercial property; and, that the remedy was provided for an aggrieved person under the relevant Revenue Laws, but instead of availing such remedy by Lutufullah, the petitioners Nasir Rahim and Faisal Murad have filed this petition, which per them, is not maintainable.
3. Record reflects that earlier the petitioners had filed petition bearing C.P.No.D-609 of 2017 against the Province of Sindh and others, a copy whereof filed as Annexure-E is available at Pages 43-54, with the following prayers:-
(i) Direct the respondent No.2 to remove/demolish illegal erected Katcha/Paka Chappra and Puncture Service Station over the land of Petitioners viz. commercial land bearing No.Nakabooli No.206 [08.001 acres and No.203 [00-251 measuring 08 Acres & 25 Ghuntas, situated in Deh Thoming, Tapp() Gujro, Taluka Gulzar-e-Hijri, Scheme No.33, District East, Karachi made by representative/persons/men of respondent No.5.
(ii) Direct the respondent No.5, his representative/persons/men not to harass or threatened to the petitioners illegally by adopting all unlawful means in any manner .
(iii) Appoint Nazir of this Hon'ble court to inspect the said land of the Petiti oner and ascertain the illegal erection of Katcha/Paka Chappra and Puncture Service Station over the land of petitioners and submit detailed report.
(iv) Restrain the respondent No.5 their agents, men, employees, officials, officers, representative or any other persons working on their behalf from forcibly grabbing the commerci al land bearing No. Nakabooli No.206 [08.001 acres and No.203 [00-2 51- measuring 08 Acres and 25 Ghuntas, situated in Deh Thoming, Tappo Gujro, Taluka Gulzare-e-Hijri, Scheme No.33, District East, Karachi of the petitioners or otherwise, harassing the petitioners or their members or employees.
(v) Grant any other reliefs which this Hon'ble Court may deems fit and proper under the circumstances of the case.
A photocopy of letter No.PS/MVR (LU)/335 of 1996 dated 10.03.1996 that is purported lease grant order , filed by respondent No.2 with his written reply , shows that ninety nine [99] years lease of the subject huge government commercial property admeasuring 8-25 acres equal to 375,705 sq. ft. located on superhighway in Deh Thoming, Tapo Gujro, Taluka Gulzar-e-Hijri, Scheme-33 District East Karachi, was purportedly granted to one Lutufullah son of Amanullah in relaxation of conditions No.14 and 16 of the statement of conditions of the land grant policy notified on 12.05.1975 and in existence of the ban imposed by the governme nt on disposal of the State land on lease or otherwise, although the subject property being commercial property could only be disposed of through an open public auction and that too after lifting the ban imposed by the government on disposal of the State land on lease or otherwise.
4. It further reveals that prior to this the petitioners had filed the petition bearing C.P. No.D-609 of 2017, praying for removal of the encroachments from the subject land, which was disposed of vide order dated 12.10.2017 with direction to S.H.O of Police Station SITE Superhighway , Karachi to proceed strictly in accordance with the law and if he finds out any person encroaching upon the above referred land without any legal and lawful authority , he should proceed against the said person as per law; a photocopy of Entry No.68 dated 09.05.2017 purportedly of Deh Form-II, filed as Annexure-B, availab le at pages 19-22 shows the purported lease of ninety nine [99] years of the subject property in the name of one Lutufullah son of Amanullah from the year 1996-97 for commercial industrial purpose. It is well settled that the mutation entry is not a document of title, which by itself does not confer any right, title or interest, and the burden of proof lies upon the person, in whose favour it was mutated to establish the validity and genuineness of transfer in his/her favour; it is also well settled law that if the foundation is illegal and defective then entire structure built on such foundation, having no value in the eye of law, would fall on the ground; it is also worthwhile to mention here that it is incumbent upon the petitioner exhausting remedy under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 to establish that he has legal right over the subject property and that such right is so clear that leaves no room of doubt or any controversy , and' the exercise of extraord inary constitutional jurisdiction under Article 199 of the Constitution is B intended primarily for providing an exped itious remedy in a case where the illegality of the impugned action of an executive or other authority is floating on the surface, which can be established without any elaborate enquiry into the questions involved in the matter; moreover , the writ jurisdiction is undoubtedly discretionary and extraordinary in nature which being equitable relief is available even otherwise to a party who he comes in Court with clean hands.
5. Manifestly , the petitioners, who are out of possession of the subject huge government commercial property of potential value, having also no right or title over it, by suppressing the real and material facts and documents, relating to the alleged grant of lease of the subject commercial property in relaxation of conditions of the statement of the conditions of the land grant policy and in existence of ban imposed by the government on the disposal of the State land on lease or otherwise, have filed this petition and that too without disclosing the name of alleged lessee Lutufullah anywhere in the petition, by falsely claiming themselves to be owners of the subject government commercial property of potential value and so also without joining the concerned Revenue Officers, namely , Deputy Commissioner East, Karachi, Assistant Commissioner and Mukhtiarkar , Gulzar-e-Hijri and the alleged land grabbers and encroachers as well, obviously for sinister purpose to have some favourable order by misrepresentation and fraud, so as to occupy the subject huge government commercial property under the umbrella of that order . Under these circumstances, we are of the humble view that this petition, which is apparently aimed at to abuse the process of the law, besides being not maintainable is also mala fide one, therefore, it deserves to be dismissed. The learned advocate for the petitioners has also not been able to satisfy the Court as to the maintainability of this petition. Accordingly , this petition was dismissed along with the other listed applications by a short order announced by us on 30.07.2020 and these are the reasons for the same.
6. While parting with this order it is essential to mention here that the subject huge prime government commercial property in Scheme-33 Gulzar-e-Hijri located on superhighway , is alleged to have been encroached upon by the land grabbers, therefore, a copy of this order is directed to be sent to the all concerned, namely , Chief Secretary , Government of Sindh; Senior Member Board of Revenue Sindh; Secretary (Land Utilization) Department, Government of Sindh; Commissioner , Karachi Division and Deputy Commissioner , Karachi East, who shall ensure that the subject prime Government commercial property , is protected and safeguarded by vigorously pursuing the matter and taking necessary action against the land grabbers for removal of the encroachments therefrom and such monthly progress report be furnished to the MIT -II of this Court positively .