' AJMAL MIAN, J.-The petitioner, which is a Panchayat (which has been incorporated under the Voluntary Social Welfare Agencies Registration and Control Ordinance, 1961) has filed the present petition through its attorney and has prayed for the following reliefs : "Prayed that the direction in the nature of mandamus be issued to the official Respondents to exercise their executive and administrative jurisdiction/authority and remove the encroachment by the private Respondents 4 to 22 and all those whose identity could not be ascertained but who, on enquiry, are found to be occupying the land belonging to the petitioner. That the petitioner further prays that the respondents be directed to ensure to the petitioner the performance of their religious rights without any interference from respondents.
' The petitioner prays for any other order or directive that this Hon'ble Court may deem fit and proper under the circumstances.
' Petitioner prays for costs."
2. The relevant facts leading to the filing of the above petition, as averred in the petition are that the petitioner's predecessor-in-interest, which was also an unregistered Panchayat was allotted S. Nos.
Namely 1632, measuring 12,752.06 sq. Yards, 1633 measuring 25.08 sq. Yards 1634 measuring 33909.2 sq. Yards, and 1636 admeasuring 19,360 sq. Yards, total of which comes to little less than 9 acres, situated in Shandadkot, for `Masan'. It has been averred that Panchayat besides graveyard and cremation ground has raised some structure for worship and other religious functions. It has also been averred that for the last over three years some persons (local Muslims) residing in the neighbourhood of the Masan, some of whose identity having been established, have been arrayed as respondents in the petition, have trespassed into the Masan land and have put hutments and are occupying the same for their residence. It has been further averred that such hutments are between 30 to 40 and that in addition to the above encroachments a substantial portion of the land around these hutments is being used as open air lavotories and garbage dumps with the voracious tendency of extending their encroachment further. It has been further averred that this trespass of Masan land though started by a humble note with the couple of huts to begin with swelled up gradually with the connivance of the petitioner's Chowkidar. It has been also averred that the petitioner attempted to get the above land vacated and approached the higher Authorities. It has been further submitted that in July, 1978 first the petitioner on advice approached the Federal Inspection Team, which in turn referred the matter to the Federal Cabinet Secretariat, which marked the same to the Commissioner Sukkur, Division, for necessary action by 8th August, 1978 without fail, but with no result. After that Panchayat approached the Chief Martial law Administrator through a memorandum, dated 28th December, 1978, which was forwarded to the Deputy Commissioner, Larkana, by the C. M. L. A. Secretariat routed through the Martial Law Administrator, Zone 'C' but the same also did not bring any result and therefore, the petitioner has filed the above petition for above-quoted reliefs.
3. Respondents Nos. 4 to 22 have filed a reply/counter-affidavit, in which inter alia it has been denied that the entire S. Nos. Were given for Masan purpose or that the Panchayat is in possession, of said four survey numbers. It has been averred that since partition in 1947, all the four survey numbers except small area used for cremation purpose has been occupied by the refugees from India and the people migrated from interior of Shandad-Kot taluka and that at present there are about 500 houses constructed upon the said land. It has been further averred that above respondents have been living in the house constructed upon the plot since over 30 years and besides the respondents there are more than 500 families living in pacca constructed houses. It has also been averred that there is no encroachment of cremation ground 'Masan' or the graveyard, which is used, by Hindus for cremation or burying their deads. It has been further averred that the respondents have also constitutional right to be dealt with in accordance with law and since the respondents having remained over the property in petition for over 30 years, they have earned title by prescription and, therefore, cannot be ejected from their houses.
' It may be pertinent to point out that the petitioner has not filed any rejoinder to respondents Nos. 4 to 22's above reply.
(3-a). Mr. Ghulam Hussain Abbasi, learned counsel for the petitioner has contended as follows :
(i) That since the petitioner was granted the land in question as Inam land for "Masan", it is obligatory on the part of the official respondents to cause the removal of the above encroachment.
(ii) That the petitioner is entitled to a writ of mandamus.
(b) Mr. Zawar Hussain Jaffari, learned A. A.-G. Appearing for the official respondents has contended that the petitioner should have filed proper proceedings under the Land Revenue Act or in a civil Court for ejectment, but cannot seek the relief, through the above writ petition.
(c) Mr. Illahi Bux Kehar, learned counsel for respondents Nos. 4 to 22, has urged as follows :
(i) That the petition involves disputed questions of facts, which cannot be investigated into a writ petition.
(ii) That the petitioner has no right to invoke the constitutional indiction for the reliefs prayed for, but it may file civil proceedings or other proceedings in accordance with law.
4. It may be observed that the contention of Mr. Illahi Bux Kehar, that the present petition involves disputed questions of facts seems to be correct. The contesting parties are at issues on the material facts, namely, whether the encroachment had commenced during last over three years prior to the filing of writ petition which was filed on 12th March, 1981, or 30 years prior to the filing of the petiition as averred by the private respondents, whether there are 30-40 huts as averred in the memo of petition or whether there are about 500 houses as contended by the private respondents, whether the above encroachment is actually on the portion used as graveyard and cremation ground as alleged by petitioner or on the other portion not used for graveyard and cremation ground as asserted by the private respondents, whether the land was Inaam land, 'whether the encroachment started with the connivance the petitioner's Chowkidar, and whether the private respondents and other occupants in fact have acquired any title to the land by prescription. These are some of the disputed questions of facts involved in the present petition and, therefore, they are pro-eminently suitable for adjudication in a regular suit and not in a constitutional writ petition.
' Mr. Kehar has referred to the case of State life Insurance Corporation of Pakistan v. Messrs Pakistan Tobacco Company Limited (1), in which it was held by the Hon'ble Supreme Court that controversial questions of facts adjudication of which is possible only after obtaining of evidence, in power and possession of the parties can be determined by Courts having plenary jurisdiction in the matter and not in a constitutional petition. The above case on all fours is applicable to the instant case, and hence, the .Petition is liable to be dismissed for the aforesaid reason.
5. Reverting to the merits of the above case, it may be observed that Mr. Ghulam Hussain Abbasi has referred to section 61 of Sind Land Revenue Act, 1879 and section 175 of the West Pakistan Land Revenue Act, 1967, Para. 207 from the well-known book on law of Extraordinary Legal Remedies by Ferris, 1926th Edition, the case of State of Pakistan and another v. Merajuddin (2) and the case of Teomal v. Settlement and Rehabilitation Commissioner, Sanghar and another (3) apart from some other rulings to which we intend to make reference at the proper place hereinbelow.
(1) PLD 1983 SC 280 (2) PLD 1959 SC 147
6. On the basis of the above section 61 of the Sind Land Revenue Act, 1872 and section 175 of the West Pakistan Land Revenue Act, 1967, it has been urged by Mr. Ghulam Hussain Abbasi that under the above enactments the Revenue Authorities have powers to remove encroachment from the petitioner's above land. He has specifically made reference to section 17 of above West Pakistan Land Revenue Act, 1967, which reads as follows "175 (1) Where land which has been reserved for the common purposes of the persons residing in the estate in which such land is situate has been encroached upon by any person, and the land has been shown in the last three periodical records made before such encroachment as so reserved, a Revenue officer may, on the application of a land-owner in the estate, and after giving an opportunity to the person alleged to have encroached upon it to appear before him and show cause against the proposed action-
(a) eject from the land the person who has encroached thereupon ; and
(b) by order proclaimed in the manner provided in section 26 forbid repetition of the encroachment.
' Explanation.-An edition of the record-of-rights made before the coming into force of this Act, under the provisions of section 33 of the ' Punjab Land Revenue Act, 1887, or under the provisions of any other law repealed by this Act, shall be deemed to be a periodical record for the purpose of this section.
(2) The proceedings of the Revenue Officer under subsection (1) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction."
' It may be noticed that under the above-quoted section, it has been provided that where land has been reserved for common purposes of the persons residing in the estate, in which the land is situate, has been encroached upon by any person and if the land has been shown in the last three periodical records made before such encroachment as so reserved, a Revenue Officer on the application of a land-owner of the estate after giving an opportunity to the person, who has allegedly encroached upon the reserved land, eject him from the land and by an order proclaimed in the manner provided in section 26 forbid repetition of encroachment. It has also been provided that for the purposes of above section, the record-of-rights made before coming into force of the aforesaid Act under the provisions of the Punjab Land Revenue Act, 1887 or under the provisions of any other law, repealed by the Act, shall be deemed to be periodical record for the purpose of an application. It has further been provided that the proceedings of the Revenue Officer under above subsection shall be subject to any decree or order, which may be subsequently passed, by any Court of competent jurisdiction, ' It may be stated that it is an admitted position that the petitioner did not file any application before the Revenue Officers in terms of above-quoted section 175 of above Act. However, it was urged by Mr. Ghulam Hussain Abbasi that since the representation made by the petitioner to the Chief Martial Law Administrator was forwarded to the Commissioner and to the Deputy Commissioner, the above officers could have initiated the proceedings under the above section. In our view, the above contention is devoid of any force. We are inclined to hold that in order to press into service above section 175 of the Act, there are certain prerequisites namely ; firstly land should be reserved for common purposes, secondly, that it should have been shown in the last three periodical records as such, thirdly, an owner of the estate should file an application against the person who has encroached upon the reserved land, fourthly the Revenue Officer shall issue a show-cause notice to the person who has allegedly committed encroachment and fifthly, the order of Revenue Officers shall be subject to the decision of any Court of competent jurisdiction.
' Apart from showing that factually the land in question in the last three periodical records was shown as reserved land for common purposes, the petitioner was required to file a proper application after impleading all the persons, who were to be removed from the land. According to private respondents, there are about 400 families on the land. The petitioner cannot get an ejectment order even under above section 175, without impleading all the persons, who have allegedly committed encroachment and without hearing of the above affected persons by the Revenue Officer. Furthermore, the decision of the Revenue Officer is subject to decision of a competent Court. In our view, reference by Mr.. Ghulam Hussain Abbasi to above section 175 is not pertinent as admittedly, the petitioner has not moved any application under the above section before the Authority specified therein. A general representation either to the Chief Martial Law Administrator, or to the Martial Law Administrator Zone 'C' without any particulars of the persons who have allegedly committed encroachment or as to the actual area of the land encroached upon, cannot be placed at par or substituted for a formal application under section 175 of the Act.
7. Mr. Abbasi has made reference to above well-known book by Ferris and also to above two cited- cases, referred to hereinabove in para. 5, in order to high light the scope of writ of mandamus, as observed herein-above.
(a) It may be advantageous to reproduce herein below para. 207 from the above hook, namely, Law on Extraordinary Legal Remedies by Ferris, 1926 Edition, which reads as follows : "207. To compel performance.-It is well-settled that mandamus may properly be invoked to compel a reasonable exercise of official discretion where there is a failure or refusal to perform some duty resulting from an office, trust or station ; that is, an officer may be compelled to act so far as is necessary to an actual exercise of his judgment or discretion in determining whether he ought to do or refrain from doing that which petitioner desires. Even though an officer have discretion, he cannot simply fold his hands and refuse to do anything."
(b) In the case of State of Pakistan v. Merajuddin the Hon'ble Supreme Court has dealt with the history regarding all the reliefs, which superior Courts issue in the form of writs, which are also termed as extra ordinary remedies. It may be advantageous to reproduce herein below the relevant observations of the Hon'ble Supreme Court on the scope of order of mandamus.
"The writ or order of mandamus is a direction issued to any natural person, corporation or inferior Court within the jurisdiction requiring them to do some specific thing therein particularised, and which appertains to their office or duty. Its object usually is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers when there is no other adequate and specific legal remedy and without which there would be a failure of justice. A mandamus could not confer a new authority and is neither a law nor a source of law. The person claiming a mandamus, in order to be entitled to receive it must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced and in the case of a public officer the duty must be one which is clearly defined, imposed or enjoined by law as a duty resulting from the office. A right founded purely on private contract, however clear it might be is not enforceable by mandamus. These statements regarding the nature of the writ of mandamus have been borrowed from a valuable monograph on the subject, entitled "Extraordinary Legal Remedies" by Ferris. (Thomas Law Book Company, U. S.) In Halsbury's law of England (Volume II Third Edition) the following statements of the relevant law are found. If public officials or a public body fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry it out. In accordance with this principle a mandamus will issue to Government officials in their capacity as public officers exercising public duties which affects the rights of private persons. Such a mandamus might even issue to the lords of the Treasury in their capacity as public officers invested by Statute with public duties affecting the rights of private persons. An applicant for a mandamus must show that he has a legal right to the performance of a legal duty by the party against whom a mandamus is sought. The prosecutor must be clothed with a clear legal and equitable right to something which is properly the subject of a writ, as a legal right by virtue of an Act of Parliament. The order is only granted to compel the performance of a duty of a public nature."
(c) In the above Karachi case of 1981, a Division Bench of this Court higlighted that, although the powers conferred on the High Court to exercise judicial review on administrative actions under the aforesaid Article, namely Article 98 of the late Constitution of 1962, is couched in very wide terms, but it is well-recognized that the power given by said Article is limited to issuing writs of the kind, known in England as high prerogative writs, without using their technical names, although the limits within which this jurisdiction was to be exercised, while in respect of some it is narrower and in others wider than before.
8. From the above-quoted para. From Ferris and above two cited cases, the following legal principles are deducible :
(i) A writ of mandamus may be invoked to compel reasonable exercise of official discretion.
(ii) A writ or order of mandamus is a direction to any natural person, corporation or inferior Court requiring them to do some specific thing appertaining to the office or. Duty.
(iii) The object of writ of mandamus is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers.
(iv) A writ of mandamus is issued when there is no other adequate and specific legal remedy and without which there would be failure of justice.
(v) The person claiming a writ of mandamus should show that he has a clear legal right to the performance of duty by the respondent against whom writ of mandamus is sought.
(vi) If a writ of mandamus is claimed against a public office,' the duty must be such, which is clearly defined, imposed and enjoined by law as a duty resulting from public office.
(vii) A writ of mandamus cannot be issued to enforce a contractual right.
(viii)Though under the relevant Article of the Constitution of Pakistan, the power of judicial review of administrative actions conferred on the High Courts is to be exercised by issuing direction or order without using their technical names like mandamus, certiorari etc. But this power is akin to the high prerogative writs known by their technical names in England.
9. There cannot be any cavil to the proposition of law propounded in the above-quoted passage from Ferns or in the above two cases cited by Mr. Abbasi, but the point in issue, is whether the petitioner has been able to make out a case for a writ of mandamus. We are inclined to hold that there is no constitutional or legal obligation on the part of the State to cause ejectment of the encroachers from the private property encroached upon except that to provide forums for getting redress. It is not the case of petitioner that it had filed a proper application under section 175 of Land Revenue Act before a competent authority, which has refused to exercise the jurisdiction. If an Authority fails to exercise jurisdiction vested in it, a' direction/order in the form of mandamus can be issued for compelling it to exercise the jurisdiction vested in it in accordance with law. Every owner which will include an association like that of the petitioner is expected to protect his property from encroachment. If any encroachment is committed law provides forums for getting such encroachment removed either before a special Tribunal under some special law or through a suit in a civil Court of competent jurisdiction. But in our view, no writ of mandamus can be claimed by the petitioner against the official respondents for direction to remove encroachment particularly when some of encroachers are not even before us as admitted by the petitioner itself in the petition, that it has not been able to ascertain the names of all the encroachers.
10. It was then contended by Mr. Abbasi that in order to invoke writ' jurisdiction, it is not necessary that a petitioner should have right in the strict juristic sense, but it is sufficient if the petitioner can show that he had personal interest in performance of a legal duty, which had not been performed.
The reliance has been placed by Mr. Abbasi on the well-known case of Mian Faza! Din v. Lahore Improvement Trust, Lahore and another (1). There cannot be two opinions on the above point, in view of above clear pronouncement on the above question, by the Hon'ble Supreme Court in order to maintain a writ petition a petitioner needs not have right in the that strict juristic sense. The above case has no application to the instant as the petitioner has failed to make out case that the official respondents have case, failed to perform their legal duty.
(1) PLD 1969 SC 223
11. Mr. Ghulam Hussain Abbasi then next contended that the petitioner was not obliged to avail of alternate remedy either in the form of an application under section 175 of W. P. L. R. Act, 1967 or a civil suit, as they are not adequate and efficacious remedies. The reliance was placed in this regard on the case of Sher Shah Industry Ltd. N Government of Sind and 4 others, in which a Division Bench of this Court, to which one us was party (Ajmal Mian, J) held that the High Court while considering the question of alternate remedy takes into consideration various factors, namely, the question of speed and expense involved in alternate remedy, the question whether alternate remedy is effective and efficacious, and whether alternate remedy would be the proper remedy etc. There cannot be any dispute to the above observations. However, the question in issue is, whether the petitioner has been able to make out a case that writ petition is the appropriate remedy in the circumstances of case. Apart from the fact that th petitioner has not been able to show that the official respondents have any legal obligation/duty to remove the encroachment from the above plot instead of petitioner availing of the remedies provided under the law, it may again be observed that the above petition involves disputed question of facts referred to hereinabove in para. 4, and, therefore, a writ petition cannot be said to be appropriate remedy.
12. Mr. Abbasi had also made reference to the case of Dost Muhammad Cotton Ltd., Karachi v.
Muhammad Abdul Ghani and others (1), in which a learned Judge of this Court has held that a writ will be competent if the authority fails to take into consideration relevant facts or takes into consideration irrelevant facts. The above case has also no application to the instant case.
13. For the aforesaid reasons the petition is dismissed with no orders as to costs.