NAZIR AHMAD vs FAISALABAD DEVELOPMENT AUTHORITY, FAISALABAD through DiritorGeneral and 7 others

ORDER

' The petitioner has filed this writ petition with the following prayer:- "It is humbly prayed that this writ petition may very kindly be accepted and respondents are directed to restrain from interfering into the main entrance of Arshad Cloth Market situated at Jhang Bazar, Faisalabad."

2. The learned counsel of the petitioner submits that the petitioner purchased the Shop No,201 from the respondents along with rights of easements and appurtenances including right of way. The respondents wanted to construct six shops for fresh allotment to their favourites. He further submits that agreement was executed between the petitioner and the respondents. The respondents have no lawful authority to take any action in violation of terms and conditions of the agreement dated 19-10-1978 which is attached with the writ petition as Annexure-A. The respondents had made a master plan qua the Market in-question, therefore, the respondents have no lawful authority to construct the new shops in violation of the master plan which was approved by the competent authority. He further submits that action of the respondents is hit by Articles 4 and 25 of the Constitution.

3. The learned legal advisor of the respondents entered appearance on Court's call, he submits that the writ petition is not maintainable.

4. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record myself.

5. It is pertinent to mention here that Allah Rakha, President of Arshad Cloth Market, Jhang Bazar, Faisalabad filed Writ Petition No,213 of 2000 which was dismissed alongwith Writ Petition No,10373 of 2001 vide judgment dated 13-11-2001. The aforesaid Allah Rakha filed I.C.A. No,977 of 2001 which was also dismissed by the Division Bench of this Court vide order dated 20-11-2001. For the reasons recorded in the aforesaid judgments of this Court, this writ petition is not maintainable. It is settled principle of law that the principles of Civil Procedure Code are applicable in Constitutional jurisdiction as per principle laid down by the Honourable Supreme Court in Hussain Bakhsh's case PLD 1970 SC 1. The petitioner has filed this writ petition in the representative capacity without fulfilling the mandatory requirements of Order I, rule 8, Civil Procedure Code, therefore, the writ petition is liable to be dismissed as per principle laid down by the Division Bench of this Court in Anjuman Araian Bhera's case PLD 1973 Lah.

500. It is settled principle of law that Constitutional jurisdiction is not substitute of a suit for declaration. Mere reading of the prayer of the petitioner, the writ petition is not maintainable, as the petitioner has filed this writ petition without adopting the proper procedure prescribed under sections 91 and 92 of Civil Procedure Code. It is pertinent to mention here that the possibility cannot be ruled out that the petitioner is a member of the association. The writ petition filed by the association as mentioned above, had already been dismissed and I.C.A. Filed by the association had also been dismissed by the Division Bench of this Court. It is settled principle of law that Constitutional jurisdiction is discretionary in character but I am not inclined to exercise my discretion in favour E of the petitioner keeping in view the aforesaid circumstances, which was concealed by the petitioner from this Court, as per principle laid down in the following judgments:- - ' Nawab Raunaq Ali's case PLD 1973 SC 236. Abdul Rashid's case 1969 SCM R 141.

' Rana Muhammad Arshad's case 1998 SCM R 1462.

' In view of what has been discussed above, this writ petition has no merits and the same is dismissed.