IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-459 of 2016

Before:

            Mr. Justice Muhammad Iqbal Kalhoro

Mr. Justice Irshad Ali Shah

Petitioners:                            Najwat Bahalkani and 7 others through their counsel M/s. Habibullah G. Ghouri and Muhammad Afzal Jagirani, Advocates.

Respondent No.3.                 Assistant Commissioner/ Administrator TMA Kandhkot.

State:                                      Mr. Shafi Muhammad Chandio, Additional Advocate General. 

Date of hearing:                    28.02.2018.

Date of Order:                       05.03.2018.

O R D E R

IRSHAD ALI SHAH, J.- As per petitioners, they are owners of different shops at Shahi Bazar, Ghouspur, Taluka Tangwani, District Kashmore @ Kandhkot, which are in their possession and in which they are running the business for earning livelihood. It is further submitted by them that respondent No.3 by way of an announcement made through a loudspeaker directed them to vacate the said shops otherwise those would be demolished, as there the road was going to be constructed. Being faced with above situation, they approached respondent No.3 and produced relevant record before him and requested him not to disturb their business, but he instead of doing needful threatened them to vacate the shop, otherwise those would be demolished. It is further stated by the petitioners that then they filed a civil suit before the Civil Court having jurisdiction, wherein a statement was filed on behalf of Town Municipal Administration, Ghouspur, stating therein that they would not disturb the possession of the petitioners over their shops. On the basis of such statement they withdrew the suit. It is further stated by the petitioners that the respondents at the temptation of political rival of the petitioners have been endeavoring for forcible dispossession and dismantling of their shops which is contrary to law. By making such narration, the petitioners have sought for the following relief;

a) That this Honourable Court may graciously be pleased to direct the respondents No.2 to 7 to stop causing harassment to the petitioners at the instance of local political figures in collusion with each other.

b) That direct the respondents No.1 to 7 to stop extending threats of demolishing the shops of the petitioners and do not disturb their lawful business of the petitioners and act strictly in accordance with law.

c) That direct the S.S.P Kashmore at Kandhkot to provide legal protection to the life, liberty and property and lawful business of the petitioners.

d) Award costs.

e) Grant any other equitable relief.

2.                     The respondents No.2 to 4 have denied the allegations leveled by the petition against them by way of filing their comments/written reply and have stated further that the petitioners have filed the instant petition malafidely by concealing the actual facts, they have encroached upon the public road by exceeding the original side of their property.

3.                     It is contended by learned counsel for the petitioners that the respondents are continuously harassing the petitioners to be dispossessed from their shops without due course of law at the instance of local political figures. By contending so, he sought for protection for the petitioners from such harassment.

4.                     It is contended by learned counsel for the respondents that the petitioners are still in possession of the public property as is evident of inspection report dated 06.01.2017 of Additional Registrar of this Court, who visited the site as commissioner. By contending so, they sought for dismissal of the instant constitutional petition, as according to them the issue of encroachment being issue of facts could not be resolved by this Court in exercise of its constitutional jurisdiction.

5.                     In rebuttal to above, it was stated by learned counsel for the petitioners that the petitioners are not encroacher as is evident of inspection report dated 21.06.2016, of Personal Assistant of Honourable Judge of this Court, who also visited the site as commissioner.

6.                     We have considered the above arguments and perused the record.

7.                     Whether the petitioners have or have not encroached upon the public property in front of their shops is a factual controversy, which cannot be resolved or determined by this Court in exercise of its constitutional jurisdiction on the basis of two different reports of the commissioners, who visited the site, under the direction of this Court. If the petitioners are having a feeling that they are the legitimate owners of the shops in their possession and they have not encroached upon the public property, and that there is apprehension of their dispossession from the said shops at the hands of the respondents, they have to resort to civil remedy before the Civil Court having jurisdiction which would be competent to adjudicate upon all the controversial facts between the contesting parties after evaluating their respective evidence.  

8.                     In view of the facts and reasons discussed above, the instant constitutional petition is dismissed together with listed applications.

J U D G E 

                                                                            J U D G E 

S.Ashfaq/-

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