ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P. No.D-24 of 2012.

DATE ORDER WITH SIGNATURE OF JUDGE

Present:-

Mr. Justice Nadeem Akhtar.

Mr. Justice Shahnawaz Tariq.

1. FOR KATCHA PESHI.

2. FOR HEARING OF MA 75/2012

3. FOR HEARING OF MA 2288/2012

18.04.2014.

Mr. Anwar H. Ansari advocate for petitioner.

Mr. Allah Bachayo Soomro, Addl. A.G.

M/S Jagesh R. Mullani and Ayaz Hussain Tunio advocates for respondent No.5.

Mr. Muhammad Sulleman Dahri advocate for intervener.

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SHAHNAWAZ TARIQ-J:- Through instant petition, the petitioner Wahid Bux has sought following relief (s):-

(a) To declare that the act of respondent No.1 issuing letter No.KB-1/20/SO-II 314/11 dated 28.09.2011 to respondent No.2 allotting the land admeasuring 23-13 out of 94-04 acres of S.No.104 deh Bohra Rayati Taluka Latifabad Hyderabad to respondent No.5 is illegal, malafide and unlawful and the same portion of land may be cancelled.

(b) That the respondent No.5 may be restrained, not to disturb the peaceful possession of the petitioner, till the disposal of the petition.

2. Learned Additional Advocate General Sindh files statement along with comments of respondent No.4 and filed photo copy of Form-A, notification dated 25.02.2006 and summary of Chief Minister Sindh, dated: 30.10.2012, which are taken on record and a copy thereof supplied to the learned counsel for the petitioner.

3. On 04.09.2012, when respondent No.5 filed parawise comments, it was observed by this Court that prima facie the resolution of this petition will require consideration and determination of several points of factual controversy which cannot be done in constitutional jurisdiction and the learned counsel for the petitioner was directed to satisfy the court on the next date that this matter can be resolved without undertaking factual inquiry which necessitated consideration of factual controversy. Thereafter, on 30.01.2014 again learned counsel for petitioner was put on notice to satisfy the court about the maintainability of this petition on the ground that factual controversy is involved in this matter.

4. On the point of maintainability of the instant petition, the learned counsel for petitioner could not satisfy this Court. He, however, has reiterated that the respondent No.3 was allotted land vide Survey No.104, admeasuring area of 94 acres in Deh Bora Rayati, Latifabad, Hyderabad. The petitioner subsequently came to know that the respondent No.1 had allotted an area of 23 acres from S.No.104 vide letter No.KB-1/20/50-11-314/11to respondent No.5, which was illegal and unlawful. Learned counsel further submitted that the petitioner and his Union are directly affected with the order arbitrarily issued by the respondent No.1, as they are residing on said land, therefore, the petitioner falls within the ambit of an aggrieved person and under the Constitution any aggrieved person can file petition before this court for redressal of his grievance.

5. Learned A.A.G Sindh has contended that the petitioner is an encroacher over the government land and has not approached this court with clean hands, hence his petition is not maintainable. The temporary lease was allowed by the Revenue Officer, Kotri Barrage, Hyderabad from 1968-69 to 1978-79 for cultivation purpose, but the lessee has not fulfilled the terms of the lease. The so-called amount viz Demand Draft in favour of Barrage Mukhtiarkar, Tando Muhammad Khan has malafidely been deposited without renewal of lease by competent authority, whereas the land is situated within the jurisdiction of Barrage Mukhtiarkar, Hyderabad and the demand draft has been deposited in favour of Barrage Mukhtiarkar, Tando Muhammad Khan. Learned Addl. A.G. Sindh has further contended that the land now falls within the municipal limits, therefore, the question of any agricultural cultivation over the said land does not arise, as such, Government of Sindh, LU Department has formulated policy dated: 25.2.2006 under section 10 (2) of Colonization Act, 1912, for grant of State land for non-agricultural purposes.

6. Learned counsel for the Respondent No. 5 has contended that the petitioner has neither any locus standi nor legal character to file the instant petition, and even no cause of action has been accrued to the petitioner in this regard, as such, petition is misconceived and petitioner does not fall within the definition of aggrieved person as enshrined in the Constitution, 1973, hence the petition is barred by the law. Learned counsel further contended that the annexure “A” filed along with memo of petition shows that 10 years lease for area 94.04 acres was granted to Agriculture Engineering Workshop Nareja from 1968-69 to Rabi 1978-79, but amazingly neither lease money for 10 years nor initial deposit was paid by the Agriculture Engineering Workshop Nareja, therefore, petition in present form is not maintainable.

7. After scanning the material available on record as well as consideration of arguments advanced by the parties, it is reflected that the petitioner has filed instant petition in his personal capacity and name claiming himself to be the General Secretary of Agricultural Engineering Workshop Union. Neither the Agricultural Engineering Workshop Union itself has come forwarded to file instant petition nor copy of any resolution passed by the general body of Agricultural Engineering Workshop Union has been filed along with the petition empowering the petitioner to approach this Court for the redressal of their alleged grievance. The petitioner has not filed any document to show as to what individual legal right does he possesses, which has been infringed as recognized by the law, nor has he been able to show that he is an aggrieved person in relation to the land in question.

8. The relief claimed by the petitioner regarding declaration of allotment of land in question, and thereafter cancellation of the said allotment by the concerned department with approval of the competent authority i.e Chief Minister, Sindh, restraining directions sought by the petitioner against the respondents not to disturb his possession of land in question, as well as denial of payment of 10 years lease amount and initial deposit by the concerned department, such prevailing facts and circumstances in purview of claims and counter claims of the parties, are purely factual controversy which cannot be decided by this court while exercising extra ordinary jurisdiction under Article 199 of the Constitution of Pakistan, 1973.

9. Consequently, we have no hesitation to conclude that the petition is filed by an unauthorized and incompetent person, as admittedly no resolution has been passed by the Workmen Employees and Agriculture Machinery Thatta Division, authorizing the petitioner as General Secretary Agricultural Engineering Workshop Union to file this petition, therefore, the petitioner has neither any locus standi nor legal character to file instant petition, and even he has failed to establish himself to be an aggrieved person as envisaged in article 199 of Constitution of Pakistan to invoke the jurisdiction of this Court for relief claimed.

10. For the above upshot the instant petition being not maintainable stands dismissed along with listed applications.

JUDGE