' ZIA MAHMOOD MIRZA, J.---Municipal Committee, Haripur through its administrator has filed this petition for leave to appeal against the judgment of Peshawar High Court, Abbottabad Bench, dated 21-9-1994 whereby writ petition filed by the respondents herein was accepted and the notices issued by petitioner committee to the respondents were declared to be without lawful authority and of no legal effect.
2. Facts relevant for the disposal of this petition, briefly stated, are that the respondents having purchased the landed property comprising Khasra Nos.488 and 506 in village Darwesh started constructing a private Fruit and Vegetable market thereon. They had earlier obtained orders from Assistant Commissioner, Haripur to the effect that the said Khasra numbers were situate outside the limits of Municipal Committee, Haripur. While the construction by the respondents was in progress, petitioner committee instituted a suit in the Civil Court for a declaration that the respondents had no right to construct a private Fruit and Vegetable Market on the Khasra numbers in question and relief was also sought in the mandatory form for demolishing the constructed building. Alongwith the suit, an application for temporary injunction was moved for restraining the petitioners from proceeding with the construction. The application was dismissed by the Civil Judge vide order dated 7-1-1992 and appeal filed by the petitioner committee also met a similar fate and was dismissed by the learned District Judge on 21-3-1992. Petitioner committee, thereafter, withdrew the suit with permission to file a fresh suit but instead of filing the fresh suit, he committee obtained a report from the revenue staff saying that the Khasra nutithers in dispute lay within the Municipal limits and thereafter, proceeded to serve two notices on the respondents, one under section 64 of the N.-W.F.P. Local Government Ordinance, 1979 and the other under section 79 read with section 164 of the Ordinance stating that the two Khasra numbers were situate within Municipal Limits and, therefore, no private Market could be set up without the prior permission of the Municipal Committee and the respondents were accordingly restrained from further construction of the ' market or running or holding it. The notices were followed by an order passed by the Local Government and Rural Development, Government of N.-W.F.P. On 14-10-1992 directing the Administrator of the petitioner committee to take necessary steps to restrain the respondents from running private Fruit and Vegetable Market.
' Feeling aggrieved, the respondents assailed the validity of the aforementioned two notices issued by the petitioner committee and the order of the Local Government Department dated 14-10-1992 in Constitutional jurisdiction of the High Court.
4. Case of the writ petitioners in the High Court was that the land in dispute did not fall within the Municipal limits and in any case, section 64 of the Local Government Ordinance did not put a total ban on establishing private Fruit and Vegetable market. They were at the most required to obtain a license from the Municipal Committee on payment of prescribed fee for setting up a private.
Market. Contention of the petitioner committee, on the other hand, was that the Khasra numbers in dispute were situate within he Municipal Limits as per the two Notifications dated 4th April, 1938 and 28th June, 1944 and, therefore, it was not available to the respondents to Construct the private market thereon without the permission of the committee.
5. Learned Judges of the Division. Bench of the High Court after referring to the two Notifications relied upon by the petitioner-committee :which defined the Municipal Limits of Haripur and the '
Shajra Kishtwar' found that "disputed land bearing Khasra Nos.488 and 506 do not fall Nyithin the triangular which has been notified to be included within the municipal` limits. Moreover the Khasra numbers with regard to village Darwesh specified in the two notifications to be included in the municipal area do not include disputed Khasra numbers. In such cirumstances the subsequent demarcation report seems to be manipulated and thus cannot be attached any significance".
Learned Judges also observed that the petitioner-committee had earlier filed a suit for declaration that the construction of private Fruit and Vegetable Market on the land bearing Ithasra Nos.488 and 506 was illegal but failed to substantiate its claim and ultimately withdrew the suit with permission to bring a fresh suit but no fresh suit has been brought by it till today. Reliance was placed by the learned Judges on the earlier report of the Tehsildar dated 7-9-1991 which the respondents had obtained before 'starting the construction and which report specifically mentioned that the two Khasra numbers in question were outside the Municipal Limits and on spot inspection were found to be in the rural area. This report, it was noted by the learned Judge, was duly endorsed by the Collector by his order dated 8-9-1991 and was later relied upon by the Civil Judge and the District Judge when deciding the petitioner's application/appeal in the matter of temporary injunction. Writ petition was accordingly accepted and the impugned notices were declared to be without lawful authority vide the impugned judgment with the observation that the Government could extend the limits of local area and declare it to be a Town or City at any time.
6. We have heard the learned counsel for the petitioner as also the learned counsel appearing for the caveats. The moot point in this case before the High Court was whether the Khasra Nos.488 and 506 are situate within or outside the Municipal limits of the petitioner-committee. Case of the petitioner-committee, of course, was that the said Khasra numbers were situate within the Municipal limits and quite evidently it was for this reason that it issued the impugned notices to the respondents. In support of its claim, the petitioner sought to rely upon the two notifications aforementioned but he learned Judges of the High Court after examining the said notifications together with the 'Shajra-Kishtwar' 'came to the conclusion that the Khasra numbers in dispute did not fall within the Municipal limits. Learned counsel for the petitioner has not been able to show that the Khasra numbers in dispute were mentioned/incorporated in the said two notifications. He, however, has heavily relied upon the demarcation report of the Revenue Officials according to which,, the Khasra numbers in dispute lay within the Municipal limits of the petitioner-committee.
This report, as noted above, has been found by the learned Judges of the High Court to have been manipulated by the petitioner. The view taken by the learned Judges in the attendant circumstances of the case is not open to any legitimate exception. The report in question, it appears, was obtained by the petitioner-committee after withdrawing the suit from the Civil Court and was based on the demarcation carried out by the subordinate revenue officials and that, too, in the absence of the respondents. If the petitioner was really sure of the correctness of its claim, it should have established it in the suit which it had filed but it chose to withdraw it and thereafter did not file fresh suit although permission sought for the same was granted to it. On our query, the learned counsel was unable to offer any explanation as. To why the petitioner-committee had withdrawn the suit and did not file fresh suit for which it had sought the permission. Needless to observe that the controversy as to whether the disputed Khasra numbers are situate within the Municipal limits of the petitioner-committee or in the rural area of village Darvesh could best be resolved through the machinery of civil suit. Be that as it may, since the validity of the notices issued by the petitioner was challenged in the Constitutional jurisdiction of the High Court and the petitioner chose to establish before that Court that the Khasra numbers in dispute fell within the Municipal limits and, therefore, its action was lawful, the High Court was perfectly justified in holding on the material placed before it that the petitioner "failed to prove that the disputed land falls within the Municipal limits " and as such the impugned notices were without lawful authority and of no legal effect.
7. Upshot of the above discussion is that we find no merit in this petition which is accordingly dismissed and the leave sought is refused.