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Constitutional Petition No. D‑334 of 1981, decided on 2nd September, 1981.

----Art. 199‑Constitutional petition‑Locus standi to file‑‑Petitioner an association of residents of locality founded solely to help residents of area in their petty problems objecting to taking over of plot by respondent Authority‑Held, cannot be treated as an aggrieved party and not conferred a legal right to file constitutional petition.‑[Locus standi].

‑‑ Art. 199 and Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2‑Injunction‑Injunction refused by trial Court‑Remedy lay in filing an appeal/revision‑Constitutional petition against such order, held, not maintainable‑[Injunction].

Anjumane Ahmadlya v. D. C. Sargodha P L D 1966 S C 639 ref.

S. Ansar Hussain for Petitioner.

Nemo for Respondent.

Date of hearing : 2nd September, 1981.

K. A. GHANI, J.‑The brief facts of the case are that Plot No. ST‑2, Sector 41‑A, measuring 2151 Sq. Yds. situated at Korangi was allotted to Muhammadi Masjid Ahle Hadis Korangi No. 2, Karachi, vide allotment order dated 1‑2‑1981 by the K. D. A. after receipt of a report from S. P, Malir and D. I.‑G. of Police, Special Branch, Karachi, to the effect that they had no objection for the construction of the mosque by the respondent No. 3. The said information was communicated by the Deputy Commissioner (East), Karachi. Subsequently in persuance of the said allotment, the Executive Engineer K. D. A. handed over formal possession of the land allotted to the Masjid Committee. The acknowledgment of possession order is dated 3‑8‑1981. The No‑Objection Certificate', the allotment Order' and Possession Order' have been produced by the respondent No. 3 as Annexures R‑2. R‑3 and R‑4, respectively alongwith the site plan which is marked as Annexure R‑5. Some disputes were raised about the area of the plot allotted to the respondent No. 3 and a notice was issued by the K. M. C. but sub sequently the Director, Land & Estates, Karachi Municipal Corporation, after perusal of the allotment documents withdrew the aforesaid notice by his letter dated 28‑2‑1981.

2. The present petitioner who claims to be registered association of the residents of Sector T‑Korangi, Karachi filed a Civil Suit, being No. 552 1981 against the respondent No. 3/their office‑bearers for injunction praying therein that the defendants therein be restrained from raising construction on the above‑mentioned plot which they described as a plot of park and where according to the petitioners the children and residents of locality used to have their sports. An application for injunction was also moved in the said suit for grant of temporary injunction which was contested and a counter affidavit was filed. On plaintiffs‑petitioners application the learned Civil Judge allowed the defendants to be cross‑examined. Thereafter, the parties were heard and the learned Civil Judge by order passed on 6‑3‑1981 dismissed the said application with the following observations "Nothing substantial has come out in the cross‑examination of the defendant on the counter affidavit.

The amenity plot can be used for the purpose of construction of mosque.

The defendants have got regular allotment from K. D. A. with no objection certificate from Deputy Commissioner, East and the plaintiffs do not have any proof of their entitlement. The plaintiffs therefore lack the prima facie case. The defendants are raising construction on the area of which possession was handed over by K. D. A. in persuance of an allotment order. The balance of convenience there fore is in refusing an injunction. The plaintiffs have no locus standi and just opposite thereto the defendants are constructing boundary wall and have invested substantial amount. Grant of injunction will cause injury to the defendants.

In these circumstances I do not find it a fit case to grant injunction as prayed. I, accordingly dismiss the application with costs and vacate the status quo already granted."

3. After the injunction was refused and the order of status quo earlier granted in favour of the petitioners was vacated by the learned Civil Judge in the suit referred to above, the petitioner instead of filing any appeal against the said order filed the present petition in this Court on 28‑3‑1981.

4. The learned counsel for the petitioners in support of this petition has raised the plea that the plot allotted to the respondent No. 3 was an amenity plot and could not have been allotted to the respondent No. 3. The petitioner when questioned about the locus standi of the petitioners as to how they were aggrieved party, the learned counsel submitted that the petitioners were an association of the residents of the locality founded for A the sole object to help the residents of the said area in their petty problems which might arise in the locality. It is obvious that this does not confer any or legal right upon the petitioners to file this petition and they cannot be treated as an aggrieved party.

Moreover the documents produced by the respondent No. 3 clearly establish that they are the rightful and legal allottees of the plot in ques tion. There is nothing on the record to show that this plot was a playground or a park as alleged by the petitioners.

5. In any case the petitioners had already availed alternate remedy by filing a civil suit being Suit No. 552/81 in the Court of the Civil Judge at Karachi. It is indeed strange that after their application for injunction had been dismissed and the earlier interim order whereby the status quo was ordered to be maintained, was vacated that the petitioners instead of filing any appeal against the said order preferred to file this petition invoking the constitutional jurisdiction of this Court. When asked as to how this petition was maintainable in view of the remedy availed by the petitioner by filing a civil suit, the learned counsel for the petitioners submitted that in view of the fact that the civil Court had dismissed the petitioner's application for injunction, the suit was not an adequate alternate remedy. We are not inclined to accept this argument of the learned counsel as in case of refusal to grant injunction, the remedy of the petitioners was to have filed an appeal revision against the said order and not to invoke the jurisdiction of this Court by filing the constitutional petition. Reference may here be made to the case of Anjumane Ahmadiya v. D. C., Sargodha (P L D 1966 S C 639) where the Hon'ble Supreme Court observed

"On the other hand, if the remedy sought for is in substance a remedy which is available under the ordinary law, then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy for the remedy provided by this Article is not intended to be a sub stitute for the ordinary forms of legal action."

6. Under the circumstances stated above and in view of the fact that the petitioners had already availed of the alternate remedy and also for the reasons that the petitioners have no prima facie case, we dismiss the petition in limine.

M. Y. H. Petition dismissed.