Through the instant writ petition the petitioner seeks a direction to respondent No.3 not to demarcate the land subject matter of the suit filed by the petitioner before the Civil Court, Faisalabad.
2. Brief facts of the case are that the petitioner filed a suit for declaration and permanent injunction to the effect that he is owner in possession of the land falling in square No.24, Khewat No.199/148, Khatoni No.221, Khasra No.13/3, 14/2/1, 17/3, 18/1, 23/2, 24/1, measuring 23-kanal 16-marlas and square No.45, Khewat No.199, Khasra No.8/2, 8/1, 3/2 and 13 measuring 31-kanal 16-marlas, situated in Chak No.07/JB FDA City, Main Sargodha Road, which has been acquired by the Government of the Punjab. It was prayed that respondent No.4 be restrained to take over possession of the said land and the wall constructed thereon or chalking his name on the said wall, or claiming the consideration amount of the land in dispute. Respondent No.4 contested the suit by filing written statement. However, on an application filed by the petitioner the learned trial Court appointed a local commission with the following tasks:-
1. To visit the suit property in question and note that whether defendants have mentioned their names on wall which is exclusively the ownership of plaintif f.
2. Local commission shall also determine that whether wall in question is in possession of plaintif f or not?
3. Local commission shall also submit his report regarding demarcation already made by the FDA.
3. The local commission visited the spot on 06.03.2021 and submitted his report to the following ef fect:- a) The name of the defendant-Chaudhry Liaquat Ali has been mentioned on the wall on large size on the wall chalking style. Photograph of the same is annexed herewith. b) The wall in question is in the possession of the defendant. c) FDA has made out a fresh demarcation with regard of its property . According to the demarcation, the FDA has declared its 130 feet front while both the parties (Plaintif f and the defendant) have encroached into the area of 07 feet each from left and right side of FDA property .
4. The petitioner without first approaching the trial Court, has filed the instant petition with the contention that since status quo order is already in field, the steps being taken by respondent No.3 for demarcation of the property in question are illegal and unlawful. Contends that on 23.06.2021 the petitioner also filed an application before respondent No.3 requesting not to demarcate the property in dispute till the decision of the suit in question, but despite the fact that the public functionaries are bound under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, to redress the grievances of the public, but the respondent/department is bent upon to demarcate the property against the law .
5. Arguments heard. Record perused.
6. Under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 resort and recourse to writ jurisdiction can only be made if there is no other adequate remedy available to the petitioner . The relevant portion of Article 199 of the Constitution of Islamic Republic of Pakistan is reproduced as under:- "(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, --
(a) on the application of any aggrieved party , make an order -- (i)........................
(ii)........................."
7. Stay order granted in the suit filed by the petitioner is still in field and if there is any violation thereof, the petitioner has the remedy to move before the trial Court. In the instant case, as per report of the local commission both the parties have encroached upon the land belonging to FDA. Although the report of local commission is not binding upon the Court, the parties are free to raise objection there-against, make the local commission stand in the witness box and to cross examine him during the trial and if there is anything irregular or illegal about his report, the same can easily be unearthed during the course of cross examination. Hence, an adequate alternative remedy being available, the present petition is not maintainable.
8. Furthermore, the petition is also not maintainable because it does not agitate the acknowledged grounds of judicial review i.e. illegality , irrationality , procedural impropriety or proportionality . The Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Ikram Chaudhry and others vs. Federation of Pakistan and others (PLD 1998 SC 103) has categorically held that just because there is no further remedy afforded by law in a matter does not mean that recourse can be made to constitutional jurisdiction if other postulates and grounds envisaged by Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 are not met.
9. The instant issue has been addressed in the case reported as Haji Sharaf Hussain and 5 others v. Haji Tor Gul and 7 others (2011 CLC 543) in the following terms:- "The relevant provision relating to the subject-matter is provided in Order XXVI of C.P.C. are very clear in its stipulation that the reason for constitution of a local commission is for the court to decide a tactual controversy , which requires physical inspection of the court through the agent of the court. It is also to be taken into account that there is no clear provision for any objec tion being filed in writing by any party to the proceedings regarding the commission report. However , the principles of natural justice and the practice of the court is that the same is considered under Rule 10 of Order XXVI, C.P.C. The fact that the objections of a party were not decided prior to rendering a judgment would not hold the legal ground in cases where the court while passing the final judgment addressed all the objections raised by a party and rendered definite findings on the same.
In the present case, the courts below have not effectively addressed all the objections of the present petitioners; hence their case is surely prejudiced and requires judicial interference of this court."
10. Another judgment reported as Abdul Khaliq and 3 others vs. Additional District Judge, Minchinabad and 4 others (2011 MLD 1632) also provides guidance in respect of the present matter and holds that Rule 10 of Order XXVI, C.P.C. provides that the report of local commission and evidence taken by him shall form part of the record in a suit and any of the parties to the suit may examine the local commission personally in open court touching any of the matters referred to him or mentioned in his report with the permission of the court. Hence, Rule 10 of Order XXVI, C.P.C. provides sufficient safeguards for the rights of the parties so as for them to utilize or challenge any such report of the local commission taken as evidence.
11. This Court also in the judgment reported as Kh. Abdul Rehman (deceased) through Legal Heirs and others vs. Muhammad Farooq Mirza and 5 others (2019 CLC 596) clinches the matter as follows:- "7. In the instant case the local comm ission after conducting proceedings submitted his report dated 18th September , 2015 which was objected by respondent No.1 through an objection petition. The learned Additional District Judge, while proceeding with the objections dismissed the same way of impugned order . He, however , summoned the local commission as court witness for recording his statement. It is well settled principle of law that report of local commission is not perse admissible. Such a report could not be termed as findings but only proceedings of an inquiry for information and assistance of the court, who appointed such commissioner . Even the report of local commission is not binding on the court. The report prepared by the local commission in terms of reference was a piece of evidence but it cannot be termed as admissible unless tendered as such in the proceedings. The report of local commission, statement recorded by him and other material collected by the local commission though would form part of record but same could not be called as evidence of the suit, unless same was tendered in evidence as per prescribed law .
Order JYJYVI Rule 10(2) of "C.P.C." authorizes the court to examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the matter in which he has made the investigation. Even a party to the suit may examine the commissioner as such with the permission of the court. The purpose of such exercise is always to unearth the hidden aspects of the matter in controversy and to elucidate the intrica cy relating to the facts of the case. On receipt of a report of a local commission each of the party is equipped with a right to object the same which relates to the pre-admission stage of the report of local commission. Despite receipt of objections on the report from any of the parties and discarding the same court cannot be precluded to examine the commissioner personally with regard to the matters mentioned in sub-rule (2) of rule 10 ibid. As already observed that report of the commissioner would only become a valid piece of evidence if it is tendered in evidence through prescribed mode. For the said purpose, the examination of the commissioner is necessary ."
12. Furthermore, the Constitutional jurisdiction is equitable and discretionary in nature and cannot be invoked to defeat the provisions of a validly enacted statutory provision. Reliance in this regard is placed on the case reported as President, All Pakistan Women Association, Peshawar Cantt. vs. Muhammad Akbar Awan and others (2020 SCMR 260).
13. In the circumstances, the instant petition fails and is accordingly dismissed in limine .