IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
PRESENT: 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE SARDAR TARIQ MASOOD 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
 
CIVIL PETITION NO. 1134-L OF 2018 
(On appeal against judgment dated 01.03.2018 passed 
by the Lahore High Court, Lahore in Intra Court 
Appeal No. 1392/2017) 
 
 
Province of Punjab through Secretary Communication and Works 
Department, Lahore through Chief Engineer (North/Central) 
Punjab Highway Department, Lahore 
 
… Petitioner 
 
VERSUS 
 
Yasir Majeed Sheikh etc 
 
 
 
… Respondents 
 
For the Petitioner: 
Barrister Qasim Ali Chohan, Addl. A.G.  
 
Mr. Asif Bashir, Deputy Director Legal 
 
 
For Respondent (1): 
Barrister Umer Riaz, ASC 
 
Date of Hearing:  
15.01.2021 
 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition 
under Article 185(3) of the Constitution of Islamic Republic of 
Pakistan, the petitioner has called in question the legality of the 
impugned judgment dated 01.03.2018 passed by the Lahore High 
Court, Lahore, whereby the Intra Court Appeal filed by the 
petitioner 
was 
dismissed 
and 
hence 
the 
judgment 
dated 
07.06.2017 of the learned Single Judge in Chambers was 
maintained, whereby the Writ Petition filed by the respondent No. 
1 for getting access of his petrol pump from the main carriage way 
was allowed.  
2. 
 
Briefly stated the facts of the matter are that in the 
year 2004, the respondent No. 1 installed a petrol pump on 
Lahore-Kasur Road. At that time, he was given access from the 
Civil Petition No. 1134-L/2018 
2
main road but subsequently the access from the main road was 
denied by the Punjab Highway Department, which led to filing of 
Constitutional Petition by the respondent before the learned 
Lahore High Court, Lahore. The learned Single Judge in Chambers 
of the High Court vide judgment dated 07.06.2017 allowed the 
Constitutional Petition by directing the petitioner to provide access 
points to the petrol pump of the respondent No. 1 from the main 
Lahore-Kasur Road in the shape of entry and exit. Being aggrieved, 
the petitioner filed Intra Court Appeal before the learned Lahore 
High Court but the same has been dismissed vide impugned 
judgment dated 01.03.2018. Hence, this petition seeking leave to 
appeal.  
3. 
 
Learned 
Additional 
Advocate 
General 
inter 
alia 
contended that most of the petrol pumps, which have been given 
direct access are not situated in front of the green belt whereas the 
petrol pump of the respondent is situated in front of the green belt, 
therefore, no question of discrimination arises; that the learned 
Single Judge as also the learned Division Bench did not inquire 
from NESPAK to explain their design of the dual carriageway so 
that if access is granted to the respondent’s petrol pump what 
could be the possible consequences in terms of road safety and 
other traffic related hazards; that no fundamental right of the 
respondent has been infringed by declining him direct access as he 
is specifically been given access from the alternate road, which is 
360 feet away and that the impugned judgments are not 
maintainable in the eyes of law.  
4. 
 
Learned counsel for the respondent No. 1, on the other 
hand, defended the impugned judgment. He contended that there 
are other petrol pumps which have been given direct access 
whereas the same has been denied to the respondent and that 
right of a roadside owner to have access to the highway is a 
fundamental right, which is protected under the constitution and, 
therefore, the writ petition was maintainable.  
5. 
 
We have heard learned Law Officer as also learned 
counsel for the respondent and have perused the record.  
6. 
 
We have specifically confronted learned counsel for the 
respondent as to how the writ petition was maintainable when the 
Civil Petition No. 1134-L/2018 
3
respondent was claiming direct access from the main road, which 
is an easementary right, to which he stated that right of roadside 
owner to have access to the highway is a fundamental right, which 
is protected under the Constitution and for the grounds of 
discrimination writ petition was filed. The learned High Court while 
allowing the writ petition of the respondent mainly observed that 
only the respondent’s petrol pump has been denied access from 
the main road, which is violation of Article 18 of the Constitution. 
However, we have noted that same is not the case here. According 
to the reports of local commissions, which were formed during the 
proceedings before the High Court, although some of the petrol 
pumps have been given access from the main road but at the same 
time there are petrol pumps, which have no direct approach, 
therefore, the question of discrimination does not arise. There is no 
cavil that Article 18 of the Constitution of Islamic Republic of 
Pakistan guarantees every citizen the right of freedom of trade, 
business or profession but this right of the respondent has not 
been infringed, because although he has been denied access from 
the main road but he has the access from alternate route i.e. 
service road, which is 360 feet away from the main road. In these 
circumstances, existence of right of easement in respect of the 
respondent is a question of fact, which needs to be decided after 
recording of evidence and the same could not have been done in 
the constitutional jurisdiction. Extraordinary writ jurisdiction in 
such like situations, which is based upon factual propositions, 
should not be exercised mere on the apprehension of the party. 
The jurisdiction conferred on the High Courts under Article 199 of 
the Constitution is an extraordinary relief and the same has to be 
exercised in aid of justice and not to interfere in jurisdictions of 
other statutory forums unless it is shown that order, action or 
inaction is in violation of any provision of law or without lawful 
authority or jurisdiction. When the law has provided an adequate 
remedy, constitutional jurisdiction under Article 199 of the 
Constitution cannot be exercised as the same has to be exercised 
in exceptional circumstances, which could justify invoking the said 
jurisdiction. It has time and again been said by this Court that 
propensity to bypass remedy provided under relevant statue by 
Civil Petition No. 1134-L/2018 
4
resorting to constitutional jurisdiction is to be discouraged so that 
legislative intent is not defeated. The same is meant to be exercised 
in extraordinary circumstances and not in run of the mill cases. 
Therefore, we are compelled to observe that the very constitution 
petition was not maintainable as disputed question of facts were 
involved, which cannot be decided unless evidence is recorded to 
that effect. Learned counsel for the respondent has cited certain 
judgments but those are squarely distinguishable on the facts and 
law, therefore, of no avail to the respondent in any manner.  
7. 
 
For what has been discussed above, we convert this 
petition into appeal, allow it and set aside the impugned judgment 
of the learned Division Bench dated 01.03.2018 as also the 
judgment of the learned Single Judge in Chambers dated 
07.06.2017. Needless to observe, the respondent can approach the 
Court of competent jurisdiction for redressal of his grievance in 
accordance with law, if so advised.  
 
 
JUDGE 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the  
15th of January, 2021 
Approved For Reporting 
Khurram 
 
