P L D 1969 Supreme Court 53 (PLP)

Abid Hassan Minto, Advocate Supreme Court (absent) and Abdul Karim Attorney (absent) for Respondents. Date of hearing: 11th December 1968. SAJJAD AHMAD, J.‑‑This appeal by special leave raises a point of law which according to the admitting order of this Court, dated the 14th of April 1966 is of some difficulty and apparently of first impression, namely, whether an erstwhile evacuee property which was brought into compensation pool under section 3 (2) of the Displaced Persons (Compensation and Rehabilitation) Act is immune from the processes of section 145 of the Criminal Procedure Code. The point has arisen in the following circumstances. The appellant, Mr. S. M. Jaffar, a claimant displaced person was an allottee of a flat in a building known as New Charlie Villa. Pindi Point, Murree. He filed a C. H. Form for the transfer of the entire building, but without disposing it the Settlement Authorities auctioned the building in the year 1962 in favour of the auction‑purchaser Muhammad Din, father of the respon dents. The appellant preferred an appeal which was accepted by the Settlement Commissioner, who set aside the auction and directed that the C. H. Form of the appellant be disposed of on its merits. Thereafter some of tire other fiats in the building, which were in possession of certain Police Officers, were surrendered by them and occupied by the appellant. It was allege that on the 15th of May 1962, tire respondent broke open the locks of Flats Nos.1 and 2 and took their wrongful possession. The appellant moved an application under section Criminal Procedure Code in the Court of S. D. M., Murree, who ordered the attachment of the property in dispute but subse quently vacated that order on the ground that the property in dispute being an evacuee property was outside his jurisdiction. The appellant then moved a second application under section 145 of the Criminal Procedure Code in the Court of the A. D. M., Rawalpindi, who on the 17th of June 1964 ordered the attach ment of the property. The respondent's objection to the jurisdiction of the Court on the ground that the property being evacuee was immune from action under section 145 of the Criminal Procedure Code was over‑ruled for the reason that by a Notification No. U‑8‑79‑59 (4261), dated the 20th of November 1959,. issued by the Government of West Pakistan, the property in dispute had been acquired by the Central Government and thus ceased to be evacuee property from since that date under sub‑clause (3) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, hereinafter described as the Act. Dissatisfied with the order of the learned Additional District Magistrate the respondents filed a revision petition in the High Court of Vest Pakistan, Lahore, which was accepted by a learned Single Judge, who held that section 25 of the Act which ousted the jurisdiction of the Courts qua the matters required to be disposed of under the Act, operated as a bar to proceeding under section 145 of the Criminal Procedure,.‑Code. Section 25 aforesaid, reads as follows :‑‑ "Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is 4 empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to he taken in "exercise of any power conferred by or under this Act." The latter part of this section which enjoins that "no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act" has been interpreted by the learned Single Judge in the High Court as constituting a bar to proceedings under section 145 of the Code, by reference to the provisions of sections 7 and 29 of the Act which may now be examined. Section 7 protects a property which forms a part of the compensation pool constituted under the Act, from any liability to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of Court or by other authority. Section 29 empowers the Chief Settlement Commissioner to eject or cause to be ejected any person in possession or occupation of any evacuee property (or any property acquired under section 3) whose possession or occupation is not authorized by any of the provisions of this Act, or who contravenes or may have contravened any of the terms and conditions under which the property is held by him, or who, when called upon, has failed to pay public dues, or has willfully caused damage to, (any such property) allotted to or occupied by him, and for the purpose of such ejectment use or cause to be used such force as may be considered necessary. T49 learned Single Judge in the High Court seems to have been influenced in his decision by the consideration that since section 29 of the Act empowers the Settlement Commissioner to take action for ejectment of any person in possession of a property which is vested in the Central Government, section 25 of the Act bars the jurisdiction of the courts for action under section 145 of the Criminal Procedure Code to undertake the same or similar process. The other consideration taken note of by the learned Single Judge is that as one of the objects of section 145 is to determine the question of possession of the disputed property between the disputants on the date of the initial order or within two months next before that date and to restore it to the party which has been dispossess ed during that period irrespective of title, a possible conflict of views between a criminal Court acting under this section and the Settlement Authorities acting under section 29 of the Act is easily conceivable. It may be said so with all respect that in reaching this conclusion the learned Single Judge has not correctly comprehended the true import of section 145 of the Criminal Procedure Code. This section confers summary powers on Magistrates enjoying a certain status not lower than that of the rank of a Magistrate 1st Class, to take action with regard to a dispute concerning land or water including buildings, etc. within the local limits of his jurisdiction, to prevent a breach of peace taking place over that dispute. In the quasi‑criminal proceedings that are initiated under this section, the Magistrate has to decide as to which of the parties was at the date of his initial order ors within two months next before that order in actual possession of the subject‑matter of dispute without any reference to the merits or the claims of any of such parties to a right to possess it. The tentative and provisional nature of this order made under section 145 is made clear by subsection (6), thereof, which states that such an order shall declare a party to be entitled to possession till such time that the party is evicted there from in due course of law, forbidding the disturbance of such possession until such eviction. Plainly enough, in proceedings under A section 145 of the Criminal Procedure Code, no action is taken against the property for the enforcement of any claim of any party thereto as described in section 7 of the Act, the object of the proceedings being to avoid breach of peace and to maintain status quo as to possession of disputed property provisionally, without even determining the right of the rival parties to possession thereof. There can also be no question of any conflict between a decision made by a Magistrate under section 145 of the Criminal Procedure Code and orders of ejectment that may be passed by the Settlement Authorities under section 29 of the Act. The former will yield to the latter if and when passed in due course of law as provided for in subsection (6) of section 145 of the Code referred to above. In our view the learned Single Judge of the High Court was in error in quashing the proceedings under section 145 of the Criminal Procedure Code that were taken in respect of this property. In the result this appeal is accepted, the order of the High Court, dated the 21st of February 1966, is set aside and the orders of the Additional District Magistrate, dated the 7th of June 1964, and the 14th of July 1964, are restored. We heard this appeal ex parte, as no one was present for the respondents. Issue notice to the attorney on record to explain his absence from the Court at the li iring of this matter. K. B. A. Appeal accepted.