2008 P Cr (PLP)

KAZIM ALI MALIK, J.

Naseer Ahmad, Tanvir Ahmad and Muhammad Ajaib, petitioners filed a complaint under section 3 of the Illegal Dispossession Act, 2005 against their co-villagers Muhammad Farooq, Muhammad Aslam and Muhammad Imtiaz with an allegation that they resided in their house located in their owned Khasra No.337 of Revenue Estate Matial; that the respondents blocked thoroughfare abutting the house of the complainants illegally and forcibly and that they made themselves liable for prosecution on the afore-said charge for having occupied thoroughfare.

2. The learned trial Court recorded preliminary evidence and dismissed the complaint vide order, dated 9-1-2008, now under challenge at the instance of the petitioner-complainants through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

3. There is no allegation against the respondents that they ever encroached upon or occupied any piece of land or portion of house owned and possessed, by the petitioners-complainants. The only allegation against the respondents was/is that they encroached upon a public way/thoroughfare. For the sake of arguments, if it is admitted for a moment that the respondents encroached upon the above thoroughfare, even then they were/are not liable for any action under the penal provisions of the Illegal Dispossession- Act. For the facility of reference, relevant portion of section 3 of the said Act, is reproduced hereunder:-- Prevention of illegal possession of property, etc.

(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property. A bare perusal of the above quoted provision of law clearly shows that no one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property. In the case in hand the thoroughfare allegedly encroached upon by the respondents was not in occupation or possession of the petitioners-complainants and, therefore, no question of their dispossession or ejectment or ouster from it would arise. Thoroughfare was being used by the public-at-large including the petitioners and the respondents. Allegedly the respondents encroached upon the public path for which they are not liable under section 3 of the said Act. It would not be out of place to mention here that the Revenue Authorities had demarcated the disputed path/thoroughfare and made a report that the petitioners themselves had occupied major portion of the thoroughfare. In other words they did not approach the Court with clean hands. After having encroached upon the thoroughfare it does not lie in the mouth of the petitioners to complain that the respondents encroached upon the path.

4. The petitioners have approached wrong forum for removal of alleged encroachment upon the thoroughfare. Section 175 of the Land Revenue Act, 1967 governs the controversy which lays down that where the land has been reserved for the common purposes of the persons residing in the estate in which said land is situated has been encroached upon by any person, a Revenue Officer may, on the application of a land owner in the estate eject him from the land. The petitioners should have moved the Revenue Officer concerned under section 175 of the Land Revenue Act, 1967 instead of making a complaint before the Court of Session under the penal provisions of the Illegal Dispossession Act, 2005.

5. Another remedy available to the petitioners was a complaint before the Area Magistrate in terms of section 133 of the Criminal Procedure Code, 1898 which deals with public nuisance. The Magistrate has been empowered to remove any unlawful obstruction and nuisance from any way, which is or may be lawfully used by the public. There is no answer from the petitioners' side as to why they did not move the Revenue Officer under section 175 of the Land Revenue Act or the Area Magistrate under section 133 of the Criminal Procedure Code. It appears that the encroachment by the petitioners themselves upon the public path prevented them to make a complaint before the Revenue Officer or the Area Magistrate. Be that as it may, the fact remains that a complaint under section 3 of the Illegal Dispossession Act, 2005 is not competent, even if the allegation of encroachment on public way is believed:

6. For what has been stated above, the writ petition being without any substance is dismissed in limine. N.H.Q./N-10/L Petition dismissed.