P L D 1988 Peshawar 88 (PLP)

NAZIR AHMAD BHATTI, J.‑‑This writ petition filed by Noor Muhammad petitioner under Article 199 of the Constitution of the Islamic Republic of Pakistan challenges the judgment dated 16‑7‑1986 of Additional District Judge, Nowshera, respondent No.1 as being without lawful authority, null and void.

2. The facts of the petition are that the property in dispute belonged to Jay Ram and Hari Chand non‑Muslims and it was purchased from them by the petitioner and his two brothers by a sale‑deed registered on 29‑10‑1945 and possession thereof was also obtained. There was a private partition between the petitioner and his brothers sometime after the sale and the property in dispute fell to the share of the petitioner who constructed 'abadi' over it. The respondents 2 to 3 issued a general notice to the petitioner on 30‑10‑1984 wherein the property in dispute was claimed as public property and demolition of the 'abadi' was ordered. The petitioner coming to know of the said notice filed a suit in the Court of District Judge, Peshawar being a Tribunal under 'the N.‑W.F.P. Public Property (Removal of Encroachment) Act, 1977 (hereinafter to be referred as the said Act) which was transferred for hearing to respondent No.1 who is also a Tribunal under the said Act. In the said suit a preliminary objection was taken on behalf of respondents 2 to 5 with regard to in-competency of the suit for the reason that the plaintiff before knocking at the doors of the Tribunal did not file a review petition as required under section 4 of the said Act. This objection prevailed with respondent No.1 and he holding that before coming to the Tribunal by filing present suit it was the duty of the plaintiff to have sought redress in the first forum provided for by the Act and then the plaintiff could seek redress before the Tribunal and so he dismissed the suit by judgment impugned herein.

3. When the Writ Petition came up for hearing two conflicting judgments of this Court passed in Writ Petition No.148 of 1983 decided on 13‑2‑1985 and in Writ Petition No.297 of 1985 decided on 10‑2‑1987 on the same point were brought to notice of the Division Bench. Two Judges of this Full Bench while working at Circuit Bench Abbottabad had also taken a view on the same point in Writ Petition No.15‑A of 1986 decided on 22‑3‑1987 which is in conflict with the decision made in Writ Petition No.297 of 1985. The Writ Petition in hand was, therefore placed before the learned Chief Justice, who, by order dated 16‑6‑1987, constituted this Full Bench. It was also ordered that Writ Petition N0.463 of 1986, Writ Petition No.464 of 1986, Writ Petition 554 of 1986, Writ Petition No.17 of 1987 bearing on the same point shall also be heard alongwith the Writ Petition in hand. As such the judgment in Writ Petition in hand shall also dispose of the aforesaid five Writ Petitions.

4. The facts of the aforesaid Writ Petition No.148 of 1983 are that Cafe Shabistan owned and run by the petitioner thereof was housed in a building owned by the Municipal Corporation, Peshawar leased out to him on monthly rent of Rs.200 initially for a period of one year. The Municipal Corporation demolished the upper storey of the building and wanted to eject the said petitioner forcibly who filed a suit in the Court of Civil Judge, Peshawar wherein an undertaking was given that the petitioner would not be ejected otherwise than in due course of law and the suit was withdrawn. Having come to know again of steps being taken by the Municipal Corporation to get him ejected from the premises, the said petitioner filed before the Tribunal a suit under section 3 of the said Act in which a declaration was sought to the effect that he was lawful occupant of the building as a lessee and the lease agreement having not been terminated, he was not liable to be ejected. The Tribunal seized with the matter, by judgment dated 12‑5‑1983, held that since no notice under section 3 of the said Act had been given, the suit pending was incompetent and he dismissed the same. The learned Division Bench consisting of our learned brother Fazal Elahi Khan, J. and Allah Bakhsh, J. in their judgment announced on 13‑2‑1985, held in paragraph 5 as follows:‑ "Section 3 of the Act deals with the action to be taken by the authorised officer to get the premises vacated and to order the occupant to remove the superstructure raised over it if he is satisfied that the occupant is unauthorised. However, service of notice is not a condition precedent to the exercise of jurisdiction under section 13 by the Tribunal. Section 13 of the Act is not controlled by section 3 of the Act but provides an independent remedy to an aggrieved person if he claims that the property in his occupation is not a public property or that the lease or licence in respect of such property has not been determined under the Act. We have not been able to visualise a situation in which the Tribunal will refuse to exercise his jurisdiction in resolving, such question or any other connected matters not provided for in the section. We have been‑unable to import the provisions of section 3 into section 13 of the Act for exercise of jurisdiction on the question referred to above. We are, therefore, of the view that the learned Tribunal was not correct in holding that in the absence of notice under section 3 he lacked the jurisdiction to adjudicate in the matter. The finding of the learned Tribunal, therefore, to that extent is against the law."

5. In Writ Petition No.297 of 1985, the Division Bench consisting of our learned brothers Abdul Karim khan Kundi J, and S. Usman Ali Shah, C.J., in their judgment dated 10‑2‑1987 held as follows:‑ In fact as already stated section 14 provides for the decision of suit or application in the manner and in accordance with the procedure to be prescribed. Under section 17 of the Act there has been vested a power in the Government to make rules for carrying out the purposes of the Act. N.‑W.F.P. Public Property (Removal of Encroachment) Rules, 1981 have been made by the Government in exercise of the said powers conferred by section 17 of the Act. Rule 4 of the statutory rules has provided that a review petition shall be presented by the petitioner to the authority concerned and where the petitioner claims that the property in respect of which an order under section 3 has been passed is not a public property or that the lease or licence has not been determined, the case shall be referred to the Tribunal with jurisdiction. Rules 5, 6, 7 and 8 respectively pertain to the form of the review petition, amendment of the review petition, hearing of the review petition and order of the review petition while rule 9 pertains to the reference of the review petition to the Tribunal who shall fix a date for hearing with notice to the parties followed by the adjudication of the dispute by it if the property is not a public property or that the lease or licence has not been determined. Further under the Act unauthorised occupant has been defined to mean one who has made the encroachment or is in occupation of any public property without express permission of authority and includes a person who continues to remain in occupation of public property after the expiry of the period of lease or licence, a person is inducted into any public property by the lessee or licensee and every member of the lessee or licensee's family remaining in occupation of the public property after the expiry of the period of lease or licence or after the determination of lease or licence. The Act and the rules have thus provided for adjudication of certain matters by the authority in review petition but where a dispute will be raised that any property is not a public property or that the lease or licence in respect of such public property has not been determined, the authority shall refer the matter for adjudication to the Tribunal and the review petition shall thus, be deemed to have been referred onward and till its decision by the Tribunal there will be no eviction by the, authority in compliance of the notice under section 3 of the Act. It thus comes to that under the Act and the rules framed thereunder the writ petitioners, were first to file review petitions before the authority and in case they were to raise a dispute that the property was not a public property, the authority was to refer their cases for onward adjudication to the Tribunal and who on receipt of reference has to fix a date for hearing with notice to the parties. The Tribunal cannot directly receive and take cognizance of suits filed in his Court by persons aggrieved from the orders/notices of the authority under section 3 of the Act. We would, therefore, agree with the learned Tribunal in holding that the suits directly filed in his Court were not competent and those were to be routed through the authority in the form and shape of review petitions and we cannot take any exception in our writ jurisdiction to the non‑suiting of the writ petitioner by the Tribunal on this score. Besides except the structure of Mian Hakimullah in W.P.No.451 of 1986 which has not been demolished by the authorities under a mistaken belief that this Court had issued a stay order, the structure of the other writ petitioners had since been demolished in compliance of the orders/notices under section 3 of the Act and there has already been constructed a double carriage highway through Pabbi Town. In the circumstances the exercise of writ jurisdiction is otherwise not warranted."

6. In Writ Petition No.15‑A of 1986, which was decided on 2 2‑9‑198 7, it was held as follows:‑ 3. 'The main question to be determined in this petition is whether in accordance with sub‑rule (2) of Rule 4 of the North‑West Frontier Province Public Property (Removal of Encroachment) Rules, 1981 reference has to be made to the Tribunal by Government or authority authorised by Government alone and that the Tribunal cannot take cognizance of the matter upon suit/petition made to it directly by the person concerned. We have carefully gone through the wording of the Act as well as the said rules and we do not think that there is any bar in the said Act and the said Rules for the affected person to directly approach the Tribunal through a suit/petition for obtaining declaration that the property from which he is sought to be ejected is not a public property within the meaning of the said Act. No doubt, Rule 4(2) aforesaid provides that the claim made by the petitioner before the Authority concerned, when not agreed to shall be referred to the Tribunal having jurisdiction in the matter but it is nowhere written in that rule that if the concerned authority sleeps over the petition made to it by the affected person in taking the decision or does not at all refer the matter to the Tribunal, then the affected person has no remedy left in law. According to the provisions of the Act the jurisdiction of civil Court is barred from entertaining a dispute of this nature and this being the scheme of the Act, it will be wrong to presume or say that in the eventuality referred to above the affected person would be thrown out in the street with no remedy whatsoever provided by the said law. The intention behind the Statute clearly is that both the parties, Government or designated authority as well as the affected person, can approach the Tribunal in order to get determination as to whether or not the property in dispute is or is not a public property. Any other interpretation in this regard would be doing violence to the language used in the said Statute. We are, therefore, of the view that the learned Tribunal in this case had the jurisdiction to decide the matter which was brought before it and by not exercising jurisdiction vested in it, the, impugned order passed by it is without lawful authority, which we hereby declare as such. In consequence, while accepting this writ petition, we would direct the Tribunal concerned to admit the suit/petition of the petitioners to its original number and re‑heard it and re‑decide it in accordance with law. We shall, in the circumstances, make no order as to costs.

7. From the perusal of the above‑mentioned three judgments it shall be seen that there was a conflict of opinion with regard to the stage at which a suit or application is to be filed before the Tribunal constituted under the said Act and whether the remedy of review petition provided for in section 4 of the said Act is a compulsory prerequisite before filing a suit or application before the Tribunal.

8. A minute perusal of the provisions of section 4 of the said Act would clearly show that any person aggrieved by an order to remove encroachment made upon public property, can within seven days of the service of the said order prefer a review petition to Government or any authority or officer who has made such order and the Government or authority after hearing the petitioner may confirm, modify or vacate the order. The points worth keeping in mind of the provisions of section 4 are that firstly, the filing of a review application is not mandatory, the wording is that the person aggrieved by the order may prefer a review petition; secondly, the review petition is to be made to the same authority which has made the order; and thirdly, the authority before whom the review petition has been preferred may, after hearing the petitioner, confirm, modify or vacate the order.

9. It shall thus, be seen that the making of a review petition is neither mandatory nor a prerequisite before filing a suit or application before the Tribunal, that the review petition is to be made to the same authority which has passed the order and that when the review petition has been made three courses are open to the authority either to confirm the order or to modify it or to vacate the same. It shall further be seen that since the review petition is to be made to the same authority which had made the order for removing the encroachment, the possibility is there that it may be rejected since it has been preferred before the same authority and that is why the' legislature in its supreme wisdom did not make the filing of a review petition mandatory. Moreover, when a review petition is preferred, the authority has to confirm, modify or vacate the order wherefrom it can also be gathered without any fear of contradiction that the matter of review petition will finally be disposed of before the authority to which the review petition has been preferred and the authority has not been given any power to make a reference thereon to the tribunal. The authority adjudicating upon a review petition would only be competent either to confirm the order which is the subject- matter of the review petition or to modify it or to vacate it. Besides adopting one of the aforesaid three courses of action the authority has no other alternative or any other power to deal with a review petition. Since the review petition is to be made to the same authority, which has passed the order of removing encroachment, the review petition is also hot mandatory. After analysing the provisions of section 4 of the said Act we are clear in our minds that the remedy of a review petition is an additional remedy provided to an aggrieved person besides filing a suit before the Tribunal. Moreover, the filing of a review petition is also not a mandatory prerequisite before filing a suit before the Tribunal.

10. In pursuance of the provisions of section 17 of the said Act, rules known as North‑West Frontier Province (Removal of Encroachment) Rules, 1981 were published on 20thMay, 1982. Rule 4 of the said Rules pertaining to review petition specifies that when a review petition has been presented and where the petitioner claims that the property with respect to which an order under section 3 of the said Act has been made is not a public property or that the lease or licence has not been determined it shall be referred to the Tribunal having jurisdiction. The provisions contained in sub‑rule (2) of rule 4 will clearly indicate that where the claim of the petitioner is that the property in respect of which an order under section 3 of the said Act has been passed is not a public property or the lease or licence has not been determined the case shall be referred to the Tribunal having jurisdiction. We have anxiously considered the provisions of sub‑rule (2) of rule 4 of the rules and we find ourselves at a loss to follow as under which provision of the said Act‑ the provisions of sub‑rule (2) have been framed: Section 4 of the said Act V of 1977 provides that when the review petition has been I preferred, the authority, after hearing the petitioner, is required either to confirm, or to modify or to vacate the order. In turn it would mean that the function of the authority would come to an end when after hearing the petitioner it has either confirmed the order or modified it or vacated it. There is no provision ‑in the said Act to the effect that the 'authority has also the power to refer the matter to the Tribunal when it finds that the property about which the order has been made is not a public property or that the lease or licence has not been determined. This function of referring the matter to the tribunal having jurisdiction is neither supported by any provision of the said Act nor it is expedient to confer this power on the authority deciding the review petition. The reason underlying this conclusion is that the Act or the rules nowhere provide that if the authority refuses to or neglects to or does not refer the matter to the Tribunal then what is to follow next. There is no compulsive provision in the said Act or the rules that the authority has per force to refer the matter to the Tribunal. From the wording of the provisions of sub‑rule (2) of rule 4 it can be easily gathered that the matter of reference to the Tribunal has been left to the sweet will of the authority seized with the review petition. It may or may not make a reference to the Tribunal and the matter would end there and then as the provisions of sub‑rule(2) of rule 4 indicate.

11. In certain other laws where analogous provision has been made then the authority has also been compulsorily enjoined to refer the matter to the next authority. This point would be very clear when we peruse such provisions in some other laws.

12. The first reference in this connection can be found in section 18 of the Land Acquisition Act, 1894 according to which if any person interested, who has not accepted the award, makes an application to the Collector under section 18 of the Land Acquisition Act, then, provided the application is not time‑barred the Collector has no option but to refer the application to the Land Acquisition Court. The perusal of sections 18 and 19 of the Land Acquisition Act would clearly indicate that it is mandatory for the Collector to make a reference to the Land Acquisition Court when an application had been submitted to him within the prescribed period of time by a person who is interested and has not accepted the award. Excepting the case of a time‑barred application there is no other alternative for the Collector except to make a reference to the Land Acquisition Court.

13. Analogous provision also exists in section 4 of the North‑West Frontier Province Service Tribunals Act, 1974. According to the provisions contained` in section 4 of this Act any civil servant aggrieved by any final order; made by the departmental authority in respect of terms and conditions of service can prefer an appeal to the Tribunal having jurisdiction in the matter provided where an appeal, review or representation to a departmental authority is provided, the civil: servant cannot file an appeal to the Tribunal unless he has first preferred an appeal or‑ application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was preferred. 'The minute perusal of the aforesaid provisions of section 4 of the North‑West Frontier Province Service Tribunals Act would clearly show that before filing an appeal to a Service Tribunal the Civil servant is required to file an appeal or application or representation to a departmental authority but the matter does not end there. The departmental' authority has also to decide the said appeal, application or representation within ninety days and if the civil servant does not within the said period, hear from such departmental authority as to what action was taken on his appeal, application or representation then he can as of right file an appeal before the Service Tribunal.

14. It shall thus, be seen that where in a law any aggrieved person is' required to file any application or representation to an authority other than a Court, then by virtue of the further provisions contained in law that authority is either enjoined by law to refer the matter to the Court or if no action is taken by the authority within a specified period of time then the aggrieved person has been given a right to move a Court independent of any action by the authority, However, such a provision does not exist in rule 4 of the North‑West Frontier Province Public Property (Removal of Encroachment) Rules where the authority before whom a review petition is preferred has not been enjoined by any mandatory provision to refer the matter for the adjudication of the Tribunal having jurisdiction in the matter. It can be further gathered from this that it would be the sweet will of the authority to make or not to make a reference to the Tribunal and if it chooses not to make a reference then the person aggrieved by the order made under section 3 of the said Act will have no remedy either to approach the authority for making a reference to the Tribunal or to independently go to the Tribunal. In our opinion this was not "the intention of the legislature as would be seer from the provisional contained in section 4 of the said Act. We have earlier held that the remedy of a review petition is an additional remedy and the filing of a suit before the Tribunal is not dependent upon the filing of a review petition and the course of action envisaged in section 13 of the said Act is independent of a review petition.

15. When a review petition under the provisions of section' 4 of the said Act is preferred by any person aggrieved by an order made under, section 3 thereof, the authority, to whom it is preferred, has only to adopt one out of the three courses of action provided in subsection (2) of section 4 and that is that either the authority may confirm the order or it may modify it or it may vacate it and the matter would end there and then. It 'shall thus, be seen that when the authority before whom the review petition has been preferred has adopted one of the aforesaid three courses of action, the matter of the review petition is finally disposed of and comes to an end. Viewing in this context the provisions of sub‑rule (2) of rule 4 of the aforesaid rules, wherein it is provided that when it is found that the property in respect of which an order under section 3 of the said Act has been passed is not a public property or that the lease or licence has not been determined the case is to be referred to the tribunal having jurisdiction. are not only violative of and made without any sanction of the law behind them but are also inconsistent with the provisions of the said Act. In view of the provisions contained in section 4 of the said Act the matter of the review petition comes to a final end, the provisions contained in rule 4 of the aforesaid rules for reference of the review petition by the Government or authority to the Tribunal having jurisdiction are without any legal effect. We have given our anxious consideration to this aspect of rule 4 of the aforesaid rules and we have come to the irresistible conclusion that the provisions contained in sub‑rule (2) of rule 4 in so far as they provide for reference c the matter to the Tribunal by Government or other authority had been framed without any legal sanction and to that extent are inconsistent with the provisions of the law and cannot be given any legal effect.

16. Although the Division Bench consisting of our learned brothers Fazal Elahi Khan, J and Allah Bakhsh J did not directly consider the effect of the provisions of sub‑rule 2) of rule 4 of the aforesaid rules about reference of the matter to the Tribunal is the case pending with them and referred to in earlier part of this judgment yet they were of .the opinion that the provisions of section 3 were independent of the provisions of section 13 of ‑the said Act and it was held by them that they were unable to import the provisions of section 3 in section 13 of the said Act for exercise of the jurisdiction by the Tribunal. They were of the opinion that the Tribunal could exercise jurisdiction in the matter independent of the provisions of section 3 of the said Act. Since we have also arrived at the same conclusion in the present judgment w would, therefore, not only agree with the aforesaid finding of the said learned Division Bench but we would also support it. On the contrary the learned Division Bench consisting of our learned brothers Abdul Karim Kundi, J and S. Usman Ali Shah, C.J. came to the conclusion in the matter pending decision with them that the Tribunal could not exercise jurisdiction unless a reference had been made to it by the authority before whom review petition had been made. However, for the aforesaid reasons we will with respect, disagree with this view taken by our learned brothers.

17. Having arrived at the aforesaid conclusion we now propose examine ‑the vires of the impugned order of the learned Tribunal in the Writ Petition in hand. A preliminary objection was taken up by the respondents before the learned Tribunal to the effect that the suit before him was incompetent for the reason that the plaintiff before knocking at the doors of the Tribunal did not file a review petition as required under section 4 of the said act and this point prevailed with the learned Tribunal. Since we have already held that the remedy of review petition is an additional remedy and suit before the Tribunal is independent of the review petition, we cannot uphold the impugned judgment of tile learned Tribunal and we, would therefore, set aside the said order as being without jurisdiction and lawful authority. The Tribunal should have proceeded with the suit independent of the view whether a review petition had been preferred or not and should have decided the suit on merit according to law. The Tribunal failed to exercise jurisdiction which under the law vested in him and petitioner had successful, prevailed upon us to interfere in the matter. We would, therefore accept this Writ Petition, seaside the impugned order of the learned Tribunal and we would direct him to adjudicate upon the matter according to the provision: of the said Act. There shall, however, be no order as to costs Same point is involved in Writ Petitions No.463 of 1986, No.464 of 1986, No.554 of 1986, No.17 of 1987 and No.18 of 1987. They are also disposed of accordingly. A.A./617/P Petition accepted.