ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-2688 of 2017

___________________________________________________________ Date Order with signature of Judge

___________________________________________________________

Hearing / Priority Case:

1. For hearing of CMA No.20690/2017.

2. For hearing of CMA No.20691/2017.

3. For hearing of CMA No.131180/2017.

4. For hearing of main case.

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20^th February, 2018

Mr. M. Yousuf Nasim, Advocate for Petitioner.

Mr. Asim Mansoor Khan, D.A.G.

Mr. Rizwan Faiz Muhammad, Advocate for Respondents No.2 to 4.

Mr. Ghulam Shabbir Shah, Addl. A.G. Sindh.

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Comments have been filed on behalf of the Divisional Forest Officer, Range Management Division, Karachi, alongwith copies of the Gazette Notification dated 20.05.1966 and letter dated 07.11.2016, which are taken on record, copy of which has been supplied to the petitioner’s counsel.

Learned counsel for the respondents No.2 to 4 submits that serious disputed facts have been agitated through instant petition, whereas, the claim of petitioner in respect of the subject property purportedly acquired through a registered sale deed has also been denied by the Forest Department. In the comments it has been categorically stated that the entire land of Deh Baburband measuring an area of 32,699.09 acres is declared as Protected Forest Vide Gazette Notification No.SOFT-IV(Agri)XVII-II/66(iii), dated 07.05.1966, therefore, the said land could not be sold or granted by any other department to any party. It has been further stated that subject land being the property of Forest Department has been allowed to be erected / installed the electric towers in the public interest, whereas, an amount of Rs.1,000,000/- (Rupees One Million) has been received as compensation from NTDC (respondent No.2).

In view of hereinabove position, as emerged, pursuant to the comments filed by the respondent/Forest Department, it appears that disputed facts have been agitated through instant petition, whereas, very title in respect of subject land has been seriously disputed. We are of the opinion that the disputed facts cannot be adjudicated upon by this Court in a writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as it requires evidence. Moreover, declaration of title or possession of any immovable property can be issued by a competent Court of civil jurisdiction.

While confronted with hereinabove factual and legal position with regard to the maintainability of instant petition, learned counsel for the petitioner could not deny the legal position regarding declaration of title and possession of immovable property through civil Court and submit that petitioner will seek appropriate remedy against the claim of Forest Department by approaching the relevant forum/Court of law in accordance with law. However, learned counsel further submits that respondents, despite restraining orders passed by this Court, have entered into the land of petitioner, who may be restrained from interfering with the possession of the petitioner in respect of the subject land at least for a period of 15 days, to enable the petitioner to approach the relevant forum/Court of law and to obtain appropriate order(s) in this regard. Such request of the petitioner under the facts and circumstances of the case appears to be reasonable.

Accordingly, we while, dismissing instant petition for being not maintainable, would direct the respondents not to interfere with the possession of the petitioner in respect of land in question, if not already acquired in accordance with law, for a period of 15 days from the date of this order. The petitioner will be at liberty to approach the relevant forum/Court of law seeking declaration regarding title, if so advised, in accordance with law. It is clarified that after expiry of 15 days, if the petitioner fails to obtain any restraining order from the competent Court of jurisdiction, respondents will be at liberty to continue their work as per contract between the parties strictly in accordance with law.

Petition stands dismissed alongwith listed applications in the above terms.

J U D G E