Muhammad Soomar Marejo (Petitioner) VS Province of Sindh and others (Respondent)

ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P No. D- 43 of 2013

Date Order with signature of Hon’ble Judge

Hearing of case

For orders on CMA No.144/2013

2.For hearing of main case

Mr. Tariq G. Hanif Mangi Advocate for the petitioner

Mr.

Sarfraz A. Akhund Advocate for private respondents

Agha Ather Hussain Pathan, AAG Sindh

It is the case of the petitioner that he is in possession of the One Acre of the land by the side of RD-56 of Purani Patni Wah, in Deh Trimoonh Jagir, Taluka Rohri, District Sukkur, which is belonging to Irrigation Department Sindh. He has applied for its lease with authorities concerned by making such application and till the time his such application is disposed by the authorities concerned, he may not be dispossessed from the above said land by any one. It was in these circumstances, the petitioner has maintained the instant Constitutional petition before his Court.

2.It is contended by learned counsel for the petitioner that the petitioner is in peaceful possession of the above said land and has got preferential rights to have it on lease. By contending so, he sought for direction against the authorities concerned to lease out the said land to the petitioner after lifting of such ban and he may not be dispossessed there from, till final disposal of his application for its lease.

3.It is contended by learned counsel for the private respondents and learned AAG Sindh that the possession of the land is not lying with the petitioner. By contending so, they sought for dismissal of the instant Constitutional petition being incompetent.

4.We have considered the above arguments and perused the record.

5.Two rival claims with regard to the possession of the land have been put forward by both the parties; such controversy being factual in its nature could not be resolved by this Court in exercise of its Constitutional jurisdiction. If for the sake of arguments, it is believed that the petitioner is in possession of the said land then it is with him (if any) without any authorization. In that situation, his status over the said land is that of encroacher / trespasser. The encroacher / trespasser could hardly ask for equitable relief. If the petitioner is having a feeling that he is entitled to have the above said land on lease then subject to qualification and terms and conditions which are to be set by the authorities concerned, he could participate in lease proceedings whenever it is launched by the authorities. At present, it could be concluded safely that the instant Constitutional petition is incompetent and same apparently has been filed by the petitioner to protect his unlawful possession (if any) over the said land (public property). Consequently, instant Constitutional petition is dismissed with no order as to costs.

Judge

Judge

ARBROHI