' This order shall dispose of Writ Petitions Nos. 2011 and 2048 of 1993 as questions of law and facts involved therein are identical.
2. The petitioners, twenty-two in number, after having been allotted plots for construction of shops in January, 1993, started building the shops but were threatened with their demolition. Some of the petitioners, therefore, instituted the suit for permanent injunction in the Civil Court. Interim order of status quo was accordingly passed with notice to the Municipal Corporation and its functionaries, herein respondents. During pendency of the stay, the respondnets, however, demolished the under-construction shops on 26-9-1993 on the pretext of order of the High Court in Writ Petition No, 1698/93. The petitioners, therefore, filed the writ petition under Article 199 of the Constitution saying that they had raised construction in pursuance of the allotments of sites for the shops in their favour as resolved in General House of Municipal Corporation on 27-9-1987 and that the act of demolition by the respondents was illegal and ultra wires. They sought for the following reliefs:--
(1) Declaration that the petitioners were valid allottees of the plots upon which they had constructed shops and their demolition was without jurisdiction and lawful authority.
(2) Direction be issued to the respondents to allow the petitioners to reconstruct the shops.
(3) The respondents be directed to make compensation/damages to the extent of Rs,40,000 to each petitioner.
3. Municipal Corporation through its Administrator (respondent No,1) submitted the comments as required highlighting the facts that the petitioners had never been allotted plots for building shops and the orders of allotment in possession of the petitioners did not confer any right on them as they were issued by one Muhammad Azhar, an ex-Councillor of the Corporation, who had no authority to make allotment of any immovable property of Corporation. Further, it was maintained that the petitioners had raised construction without prior sanction and since the buildings were raised on encroached area, therefore, they were demolished. Legal objections were also raised as to competency of the writ on two premises: first that the petitioners cannot enforce their rights which are contractual in nature through writ jurisdiction of the Court and secondly the petitioners should have resorted to alternate remedy before invoking the jurisdiction.
4. There is lot of substance in the legal objection. The allegation of the petitioners, in essence, is that the respondent in violation of the contract whereby the petitioners were allotted plots to raise shops in pursuance of the decision of Corporation in General Assembly had demolished the shops.
The dispute essentially is contractual in nature and could not be enforced through Constitutional writ. The proper remedy for the petitioners was to enforce the right through Civil Court and, in fact, the petitioners were right in moving the Civil Court in the matter. But surprisingly they had withdrawn the suit to choose a wrong forum. There is chain of authorities to support the objection of the respondents that alternate remedy should be availed by a party before invoking Constitutional jurisdiction. Reliance can be placed upon Allah Bakhsh and another v. Muhammad Ismail and others (1987 SCM R 810).
5. The petitioners do not have case on merits even if they are allowed to cross over the hurdle of maintainability of the petition. Mainstay of the petitioners is the proceedings of Corporation in General Assembly on 27-9-1987 wherein the respondents had resolved amongst others to allot the space for construction of the shops to previous tenants. The petitioners, however, have not filed documentary proof to show that they were previous tenants of the respondents or were at least licensees on Tehbazari basis. They have no proof whatsoever with them to show their business or contractual nexus with the respondents. The chits of allotment with the petitioners (Annexure 'IV) are issued by an ex-Councillor on behalf of ex-Mayor,' Bahawalpur, on various dates in January, 1993. These orders are ostensibly without any legal sanction and do not confer any right on the petitioners. Rule immovable property of a local council shall be alienated by way of sale or 10 of the Punjab Local Councils (Property) Rules, 1981, provides that no otherwise except through an open auction and with the sanction of the local council. The orders are' un-backed up by any sanction of local council and the land was also given without there being an open auction. The petitioners had also double faulted by raising construction without obtaining sanction from the, respondents under section 77 of the Punjab Local Government Ordinance, 1979.
6. So far as demolition of shops is concerned, the plea of the respondents is that the petitioners had raised construction on encroached area within premises of general bus stand and had to be demolished in view of the order of the High Court passed in Writ Petition No, 1698/93. The writ petition had been filed by the transporters of general bus stand and the compromise with the respondents took place in the Court whereupon the order was passed on 15-9-1993. The excerpt of the order reads:- "They further agreed that all the parties shall abandon the encroachments and in case of default on the part of any party, the Corporation Magistrate shall be at liberty to bring an end to the encroachments in order to restore normal working of Mini Bus/Mini Wagon Stand."
It may be remarked that mini bus stand is part of general bus stand and is run by the Municipal Corporation, Bahawalpur, with the permission of the Regional Transport Authority, Bahawalpur. Now the question as to if the C shops of the petitioners really fell in the premises of general bus stand or were built on the encroached area cannot be resolved in this writ petition without recording evidence. The relief of compensation/damages as demanded by the petitioners also cannot be granted to them and for that they have to seek remedy in Civil Court.
7. In view of what stated above, there is no merit in the writ petition and the same is dismissed.