1. ABDUL KADIR SHAIKH, J: ---This appeal by leave is directed against the judgment of Baluchistan High Court dated 21st October, 1985 which arose out of the following facts and circumstances.
2. Muhammad Iqbal and Muhammad Aslam, Managing Directors, National Food Processing Industries Limited, Quetta, respondents 3 and 4 herein, purchased a piece of land out of Khasra No.7600 for setting up a factory, and in this behalf submitted a building plan to the Administrator, Quetta Municipality, respondent 2, which was approved on 25th May, 1974 showing the main gate on Steward Road, Quetta. Afterwards, the said respondents got a revised plan approved on 30th January, 1977 with the main gate on Ram Bagh Road, Quetta. The above approval was resisted by the appellant by making a representation to the respondent-2 upon which a letter dated 8th June, 1976 was issued to the respondents which reads as follows:-- "From:-- The Administrator, Quetta Municipality, Quetta.
3. To Mr. Muhammad Iqbal Shah, National Food Industries, Ram Bagh, Quetta.
4. Memorandum No.1364.
5. Dated Quetta the 8th June, 1976.
6. Subject: WALL OF RAM BAHG COLONY.
7. You are directed not to break the existing wall which separates Ram Bagh Colony from the street leading to Stewart Road. You had concealed the existence of the wall by submitting a false site plan. As such you are called upon to explain why should your entire plan be not cancelled.
8. Sd/-- Administrator, Quetta Municipality, Quetta.
9. Copy forwarded to Mr. Zahoor Ahmed representative of Ram Bagh Colony for information with reference to the joint application dated 29-5-1976."
10. Respondents 3 and 4 filed an appeal before the Secretary, Government of Baluchistan in the Local Government Department which was allowed by the order dated 15th November, 1977. Appellant being aggrieved by this order filed a Constitution Petition No.190 of 1977 in the Baluchistan High Court which was allowed by the judgment dated 15th August, 1979 on the ground that under the West Pakistan Municipal Committees (Appeal) Rules, 1960, the Commissioner was competent to hear the aforesaid appeal, and not the Provincial Secretary. Hereupon, the aforesaid respondents filed an appeal to the Commissioner, Quetta, which was transferred by him to the Additional Commissioner, Quetta, who by his order dated 22nd November, 1984 allowed the same. The operative portion of the order may be reproduced as under:-- "After hearing the learned counsel for the parties and perusal of the documents presented by the parties I decided to inspect the site in person to get the true picture of the case. On 30-10-1984 the site was inspected by the Court in presence of the parties. After inspection of the site and hearing the arguments put forth by the learned counsel for the parties I have come to the conclusion that the impugned order has been passed keeping in view the convenience of the Ram Bagh Lane only.
11. The learned Administrator Quetta Municipality had to see the convenience and inconvenience of the residents of the locality of either side of the factory. Heavy vehicles cannot pass through Stewart Road as it is 14 feet in width. I saw wastage and rubbish lying in the factory, causing inconvenience to the owner of the factory and the inhabitants. In these circumstances the order passed by the Administrator Quetta Municipal Committee dated 8-12-1976 is set aside and I hereby order demolishing the wall which separates Ram Bagh Lane from street leading to Stewart Road.
12. As regards opening of the gate of factory towards Ram Bagh Lane, the matter is pending before the Hon'ble Supreme Court of Pakistan, which should remain untouched till decision of the case."
13. It was against this order that appellant filed another Constitution Petition No.133 of 1984 in the same High Court which was allowed by the impugned judgment dated 21st October, 1985.
14. Leave to appeal was granted by this Court by the order dated 6th May,1985 to consider the question whether the Municipal Committee has any legal authority to direct demolition of a private wall so as to allow access to a private land and thus convert the private land into a public street.
15. The dispute in the case in fact relates to a wall between Khasra No.7600 and a private land situated on Khasra No.7672 of Lytton Road, Quetta. From the record before us it appears that in the Master Plan prepared after the earthquake of 1935, the disputed area was given survey No.3. A portion of this survey number was under garden (Map p.93). This survey number was bounded on one side by the Lytton Road (now Shahrah-e-Raza Shah Pehlvi), and on the. Other, by Stewart Road. It seems that originally the whole of survey No.3 was a garden because it was, and is yet known as Ram Bagh. However, a portion of it was converted by its Hindu owner, Hukam Chand, into a residential colony, known as Ram Bagh Colony, which was set up before Independence. The land runs in between the constructed area of Ram Bagh and serves all its houses. The remaining portion of Ram Bagh was converted into Khasra No.7600. It is the contention of the appellant that there is no connecting passage between the land and the remaining portion of the garden on Khasra No.7600, out of which respondent 3 purchased certain area for setting up a factory. The main contention that arose in the case before the High Court was whether Ram Bagh Lane was a private lane, or a public road. In this behalf, on the basis of the record produced before the High Court learned Judges of the Division Bench who dealt with the case observed as under:-- "Suffice it to observe that there are certain documents to indicate that the above road is a public road and not a private land, and there are certain documents which show otherwise:"
16. However, the learned Judges took the view that "since respondent-1 as an appellate authority was entitled to conclude a question of fact whether the above land was a private land or a public road, the finding recorded by him cannot be said to be based on no evidence or that it was concluded by misreading of evidence. Furthermore, this is a Constitutional Writ Petition in which we cannot constitute ourselves as a Court of law for recording a finding of fact contrary to the appellate authority which was competent under the law to record the finding." It may be mentioned that the Municipal Committee, Quetta, supported the case set up by the appellant, but the learned Judges held that this aspect was "of no consequence as they have adhered to the stand taken by them in the above letter dated 8th June, 1976 which was impugned by the respondents Nos.3 and 4 in the above appeal."
17. After having heard the learned counsel in the light of the record before us, we totally agree with the view of the learned Judges in the High Court that "there are certain documents to indicate the above road is a public road and not a private road, and there are certain documents which show otherwise". We are, however unable to agree with the view taken by the learned Judges that the appellate authority namely, the Additional Commissioner, Quetta, was entitled to conclude, as a finding of fact, whether the lane in question is a private lane or a public road, for, as he as an appellate authority of the Administrator, Quetta Municipality, he was dealing only with the matter regarding approval of building plan, as presented by the respondents, with regard to the construction of their factory, and he was not entitled to deal with, much less conclude the controversy whether an existing wall which separated Ram Bagh Colony from the street leading towards the Stewart Road was constructed on a private lane or a public road or whether the lane itself was a- private lane or a public road. Thus the learned Additional Commissioner could not finally conclude the main controversy between the parties, and on the view reached by the learned Judges in the High court themselves that the conflicting evidence was produced by the parties on the real issue whether that what according to appellant was a private lane was really, a public road, they ought to have dismissed the petition, leaving the appellant to seek remedy before a Civil Court of competent jurisdiction.
18. For these reasons, while upholding the impugned judgment of the High Court dismissing the petition, we clarify that it is open to the appellant to approach a Civil Court of competent jurisdiction for the adjudication of the controversy and that the observations made by the learned Judges in the impugned judgment shall not be treated as final conclusion as to main controversy between the parties whether the lane in question is a private lane or a public road, and that the Municipal Committee was competent to order demolition of the disputed wall.
19. With these observations the appeal is otherwise dismissed.