SADIQ HUSSAIN vs GHULAM RASUL and 6 others

ORDER

SYED AKHLAQ AHMAD, J.---Through this writ, Sadiq Hussain/petitioner has prayed that the impugned order dated 17-6-2010 passed by the learned Additional Sessions Judge D.G. Khan be set aside being violative of law and he be directed to decide the case on merits in accordance with law.

2. Contents of the petition show that the petitioner is co-owner and co-sharer in Khata No. 34 of Mauza Chabri Zareen Tehsil D.G. Khan along with respondents Nos. 1 to 4. Respondents Nos. 1 to 4 without resorting to partition of land, forcibly occupied some portion of land in the said khata and made obstacle and blocked the way from routing through it which was shown many years ago in the record of rights for public use. Respondents Nos. 1 and 2 also filed civil suit against the petitioner and his brother and obtained status quo order which have been vacated. One suit is withdrawn while other is fixed for evidence. With the help of respondents Nos. 6 and 7, the police restored the occupied path on 25-5-2010 but on 27-5-2010 it was main closed by respondents Nos. 1 to 5.

Feeling aggrieved the petitioner lodged petition under section 3(2) of the Illegal Dispossession Act 2005. After recording the cursory evidence of the petitioner and obtaining report from the SHO, Police Station Sadar dated 17-6-2010 learned trial Court dismissed the petition.

3. Learned counsel for the petitioner contends that the impugned order is against the law and facts of the case. Learned trial Court has not applied its judicial mind while passing the impugned order.

Hence, this writ.

4. After hearing the arguments of the learned counsel for the petitioner and going through the documents appended with the writ, I find that the only allegation against the respondents is that they encroached upon public way/thoroughfare which was being used by the public at large including the petitioner. Even earlier the respondents encroached upon the said public path which was got restored on 25-5-2010 by the police with the help of respondents Nos. 6 and 7. However, on 27-5-2010 respondents Nos. 1 to 5 again encroached upon the same for which they are not liable under section 3 of the Illegal Dispossession Act, 2005. The petitioner has approached wrong forum for removal of encroachment upon the thoroughfare. Section 175 of the Land Revenue Act, 1967 governs the controversy which lays down that whether land has been reserved for the common purposes of the persons residing in the estate in which the land is situated, has been encroached upon by any person, a Revenue Officer may, on the application of the land owner in the estate, eject him from the land. .This being so, the petitioner should have moved the Revenue Officer concerned under section 175 of the Land Revenue Act, 1967 instead of making a complaint before the learned Additional Sessions Judge under the penal provision of the Illegal Dispossession Act 2005.

Another remedy available to the petitioner was a complaint before the Area Magistrate in terms of section 133, Cr.P.C. Which deals with public nuisance. The Magistrate has been empowered to remove any unlawful obstruction and nuisance from any where 'which is or may be lawfully used by the public. There is no an'swer from the side of the petitioner as to why he did not move the Revenue Officer under section 175 of the Land Revenue Act or the Area Magistrate under section 133 of the Criminal Procedure Code. Be that as it may, the facts remains that a complaint under section 3 of the Illegal Dispossession Act 2005 is not competent regarding encroachment on public way.

5. For what has been discussed above, writ petition filed by the petitioner is not maintainable and the same is dismissed in limine. (2008 PCr.LJ 1124 [Lahore] relied upon).