IN THE HIGH COURT OF SINDH

AT LARKANA

Present:

Shamsuddin Abbasi, J.

Agha Faisal, J.

C.P D-547 of 2021               :           Arif Ali Shaikh vs.

The Presiding Officer, Anti Encroachment Tribunal, Larkana and others.

For the Petitioner                 :           Mr. Mazhar Ali Bhutto, Advocate.

For Respondents No.8-9    :           Mr. Atta Hussain Chandio, Advocate.

For Respondent No.10       :           Mr. Abdul Ghaffar Shaikh, Advocate.

For Official Respondents   :           Mr. Abdul Hamid Bhurgri, Additional

Advocate General, Sindh.

Date of hearing                    :           22.05.2024

Date of Order                        :           22.05.2024

ORDER

Agha Faisal, J. The Petitioner has assailed the Order dated 16.08.2021 rendered by the Court of Anti Encroachment Tribunal, Larkana in Suit No. 14 of 2020. The petitioner’s counsel was directed to identify any infirmity in the order impugned, however, he failed to do so. He was also confronted as to how a writ petition could be entertained in such matters; once again he remained at a loss for any cogent reason.

The law, Sindh Public Property (Removal of Encroachment) Act, 2010, does not provide for an appeal against the order impugned and under such circumstances no such right could be presumed[1].  The said circumstances squarely attract the observations of the Supreme Court, in the case Gul Taiz Khan Marwat[2], reiterating settled law that an appeal is an creation of statute and in the absence of any such remedy being provided none can be presumed. Automatic recourse to writ jurisdiction in matters where appeal has been precluded has been deprecated by the Supreme Court as it could be construed as defeating manifest legislative intent. Constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of validly enacted statutory provisions[3].

It is settled law that the ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further legal recourse is provided or precluded by the law[4], and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. No such infirmity could be identified before this court in the order impugned.

The Supreme Court observed in Arif Fareed[5] that the objective of Article 199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. However, it is emphasized that the High Court, in its capacity under Article 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts. The judgment in Hamad Hasan[6] deprecated such a tendency in no uncertain words and maintained that it was impermissible for Constitutional jurisdiction to be substituted for appellate jurisdiction.

            No jurisdictional defect has been demonstrated in the order impugned, therefore, no case for invocation of writ jurisdiction is made out. In view hereof, this petition is found to be misconceived, hence, dismissed.

Judge

Judge

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[1]Since the statute, Sindh Public Property (Removal of Encroachment) Act, 2010, admittedly contains no provision in such regard.

[2]Per Ijaz ul Ahsan J in Gul Taiz Khan Marwat vs. Registrar Peshawar High Court reported as PLD 2021 Supreme Court 391.

[3] President All Pakistan Women Association vs. Muhammad Akbar Awan reported as 2020 SCMR 260.

[4]Per Ijaz ul Ahsan J in Gul Taiz Khan Marwat vs. Registrar Peshawar High Court reported as PLD 2021 Supreme Court 391.

[5]Per Amin ud Din Ahmed J in Arif Fareed vs. Bibi Sara & Others reported as 2023 SCMR 413.

[6]Per Ayesha A. Malik J in M. Hamad Hassan v. Mst. Isma Bukhari & Others reported as 2023 SCMR 1434.