P L D 1988 Peshawar 158 (PLP)

Date of hearing: 8th June, 1988. Sahibzada Habibur Rehman and one other instituted a suit for declaration to the effect that they were owners in possession of the land mentioned in the plaint and that the entries in the revenue record in favour of the defendants, who were the District Council, Peshawar, the Collector, Peshawar and one Shahzad son of Mahmood Gul, were fictitious, wrong and inoperative against their rights. The plaintiffs further claimed permanent injunction against the defendants for restraining them from interfering in the possession of the plaintiffs on the disputed land. As an alternative relief, a decree for possession of the suit land was also claimed by the plaintiffs. The averments of the plaintiffs as contained in the plaint were that disputed land was Shamilat Mahal No. 5 and plaintiffs being hissadar owners in that Shamilat were owners thereof and were, in that capacity, in its possession. It was further alleged in the plaint that the defendant No. 1, who was the District Council, Peshawar; intended to auction a portion of the suit land and gaining knowledge of that fact the plaintiffs obtained copies of the revenue record, which disclosed that the defendant No.1 had been recorded therein, in column of cultivation, in possession of the suit land, It was asserted by the plaintiffs that the said entry in the revenue record, being factually incorrect, fictitious and collusive, was inoperative against their rights, and the defendant No. 1 on that basis, could neither have the right to auction the disputed land or any portion thereof nor could he transfer it in any other manner.

2. The suit was contested by the District Council, Peshawar, on the grounds, inter alia, that the plaintiffs were neither the owners nor in possession of the suit land and instead, the contesting defendant was owner in possession thereof and could therefore transfer it by means of auction.

3. At one stage of the proceedings, on account of the absence of the contesting defendant, an ex parte decree was passed by the learned trial Judge in favour of the plaintiffs on 22‑1‑1979, which was later set aside on 26‑3‑1980.

4. On 9‑9‑1980, however, the 'learned trial Judge made an order that the suit having abated under section 11(2) of the N.‑W.F.P Public Property (Removal of Encorachment) Ordinance, 1980 (which in fact was of the year 1977 and was later replaced by the North‑West Frontier Province Public Property (Removal of Encroachment) Act, 1977 could not proceed further.

5. The aforesaid order was challenged by the plaintiffs in appeal before the learned District Judge; Peshawar, who, while concurring in the view taken by the learned trial Judge, vide order dated 14‑1‑1982, dismissed the appeal, leaving the parties to bear their own .costs.

6. Both the said orders made by the learned Courts below have been assailed by the plaintiffs in this revision petition. The respondents in this petition elected in favour of remaining absent and were therefore placed ex parte.

7. Mr. Abdul Bari Khan, Advocate, appearing for the petitioners, contends that the learned Courts below have wrongly applied the law which was not applicable to this case and have wrongly refused to exercise the jurisdiction vested in them as the Courts of civil jurisdiction which could competently adjudicate upon the controversy arising in the suit. He further contends that the Tribunal constituted under the aforesaid Ordinance/Act can have exclusive jurisdiction only in matters where a notice in respect of encroachment is either served by Government or by a Local Council, and not otherwise. His precise contention is that a party to a dispute can only approach the Tribunal constituted under the said law where action against him has been taken or is being taken under the said law. The learned counsel has not cited any authority in support of his contentions.

8. Both the learned Courts below have held that in view of the provisions contained in section 11 of the North‑West Frontier Province Public Property (Removal of Encroachment) Act, 1977 (hereinafter referred to as the Act) the Civil Court was left with no jurisdiction to give decision on the question whether or not the suit land was a public property. It has also been held that in view of the said, provisions of law the suit which was pending on the coming into force of the Act had abated. It is, therefore, necessary to examine with care the provisions of the Act which came into force on the 23rd June, 1977, having been gazetted on that date after receiving the assent of the Governor of the North‑West Frontier Province. The preamble of the Act would show that it was enacted with a view to providing for measures for removal of encroachment from public property and for matters ancillary thereto. In section 2 thereof 'encroachment' has been defined to mean unauthorized occupation, temporary or permanent, of public property, and 'public property' has been defined to mean a building, land, place or premises, which vests in, or is in the possession or under the management or control of Government, Local Council, autonomous body, or such other authority. In section 3 of the Act, procedure for removal of encroachment from public property is provided for, and section 4 of the Act provides for review of any such order made by the persons authorized by the Act. Section 5 of the Act provides for eviction of a person who fails to vacate public property after requisite notice. Section 11 of the Act, which has been relied upon by the learned Courts below, is in the following terms:‑ "

11. Bar of jurisdiction and abatement of suits.‑--(1) No civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined for the purpose of this Act, or anything done or intended or purported to be done under this Act (2) All suits, appeals and applications relating to encroachment or disputes referred to in subsection (1) and pending in any Court shall abate on the coming into force of this Act: Provided that a party to such suit, appeal or application may, within thirty days of the coming into force of this Act, file a suit before a Tribunal in case of a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined." Section 12 of the Act deals with the constitution of the Tribunal and section 13 thereof confers exclusive jurisdiction on such a Tribunal and is in the following words: "

13. Exclusive jurisdiction.

A Tribunal shall have exclusive jurm3ction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purpose of this Act." By subsection (2) of section 14 of the Act finality has been attached to the decisions made by the Tribunal in regard to the matters in controversy under the Act. These are the matters which have specifically been mentioned in subsection (1) of section 11 and section 13 of the Act.

9. The above‑quoted provisions of the Act would clearly show that the Act was brought into being with a view to providing for the measures for removal of encroachment from the public property as defined in the Act and for all other matters ancillary thereto. The machinery‑provisions contained in the Act also provide for the methods and the measures which may be adopted or employed for evicting a person found having made encroachment on the public property and also for removing the construction or the structure which he may have raised thereon. It can, therefore, unhesitatingly be concluded that the Act has been brought on the Statute book to achieve the limited purpose mentioned therein. The Act therefore has a limited scope. The legislative intent respecting the limited scope of the Act is further made manifest by employing the words "for the purpose of this Act" in subsection (1) of section 11 and section 13 of the Act The abatement clause provided for in subsection (2) of section .11 of the Act also relates to the disputes specified in subsection (1) thereof, which are controlled by the words "for the purpose of this Act", Finality has also been attached under subsection (2) of section 14 of the Act to the decisions given by the Tribunal when they relate to the matters in controversy under the Act. It is well‑settled rule of interpretation that where the Act has a limited scope, it is to be strictly construed, and the ouster clause contained therein is therefore to be applied to the extent it is absolutely necessary. This being so, I am of the view that where the action has been initiated or concluded by the specified authority, for the removal of the encroachment from, and for the demolition of the construction, if any, raised on, the public property, under the Act, then the jurisdiction to decide the dispute whether or not it is a public property would exclusively vest in the Tribunal constituted under the Act. However, where no action has been taken or concluded in accordance with the procedure prescribed in the Act, but a cause of action has been furnished to the, aggrieved person independent of the provisions of, or the proceedings under, the Act, or the dispute relates to the matters not provided for in the Act, then the aggrieved person has a remedy before the Civil Court which shall have the jurisdiction to determine all such matters, including the question whether or not the subject- matter of suit is a public property. While taking this view of the matter, I hold that the learned two Courts below wrongly applied the law to this case and thereby failed to exercise the jurisdiction vested in them. The suit which was pending before the Civil Court, having not abated, is therefore to be tried and disposed of by the trial Court in accordance with law. While accepting this revision petition, I hereby set aside the orders made by the learned Courts below and remand the case to the learned Trial Judge, who would restore the suit to its original number and decide it on merits and in accordance with law. A.A./645/P Case remanded.