IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA
Present:
Shamsuddin Abbasi, J.
Agha Faisal, J.
C.P.No.D-387 of 2023 : Ranjhan and others Vs.
The Presiding Officer, Anti Encroachment Tribunal, Larkana and others
For the Petitioners : Mr. Abdul Rehman Bhutto, Advocate
For the Respondents : Mr. Abdul Hamid Bhurgri, Addl.A.G Sindh
Dates of hearing : 14.05.2024
Date of announcement : 14.05.2024
ORDER
Agha Faisal, J. The Petitioners have assailed the Order dated 03.05.2023 rendered by the Court of Anti Encroachment Tribunal, Larkana in Suit No.30 of 2022. The operative part is reproduced herein below:
"In the present case, when the learned Counsel appearing for the plaintiff and private defendants have given consent that illegal encroachment, if any on the bank of Shah Hamir Shakh be proved after demarcation, both the parties will have no objection to get the same be removed through competent authority. In these circumstances, the defendant No.09 Assistant Commissioner/ Deputy Director Anti-encroachment Cell, defendant No.10 Deputy Commissioner / Director Anti- Encroachment Cell and defendant No.11 Executive Engineer Rice Canal Sub Division Larkana are directed to demarcate the suit property (Right Bank of Shah Hamir Shakh) and will remove the illegal encroachment made by the private defendants as well as plaintiff, if proved. This order be executed within one month and such report be submitted before the Tribunal accordingly. The copy of Judgment also be dispatched to Senior member Board Revenue Sindh at Karachi for necessary action".
The petitioner’s counsel was directed to identify any infirmity in the judgment 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 judgment 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 judgment 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
[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.