2019 PLP 1428 (MLD)

KHADIM HUSSAIN M. SHAIKH, J.

The captioned Revision Application has been directed against the order dated 30.8.2018, whereby the learned 2nd Additional Sessions Judge, Badin dismissed I.D. Complaint, filed by the applicant Ali Akbar Mandhro, under the provisions of Sections 3 and 4 of Illegal Dispossession Act, 2005.

2. It is, inter alia, contended by the learned counsel for the applicant that the applicant is owner of plot No.24 admeasuring 4000 sq ft. located in Deh Tapo Seerani Taluka and District Badin on the basis of the Sanad, issued to him under Sindh Gothabad Scheme 1987 and entry in DF-II in favour of the applicant; that the applicant has been dispossessed by the respondents/accused illegally and unlawfully by breaking the lock of main gate of the subject house; and, that the learned Additional Sessions Judge, Badin, without considering such aspects of the case. has dismissed the complaint filed by the applicant under the provisions of Sections 3 and 4 of Illegal Dispossession Act, 2005.

3. Learned advocate for the respondents Nos.2 to 4 has mainly contended that the applicant is neither owner of the subject property nor the applicant ever remained in possession thereof at any time; that the subject plot is Government property, which has not been allotted to anyone; and, that the learned Additional Sessions Judge has rightly dismissed the complaint filed by the applicant.

4. Learned D.P.G adopting the arguments of learned counsel for the respondents, further submits that Sanad and the entry of Deh Form-II, filed by the applicant, are bogus documents; and, that there is no illegality in the impugned order passed by the learned Additional Sessions Judge. He, therefore, prays for dismissal of the Criminal Revision Application.

5. I have considered the submissions of learned counsel for the parties and have gone through the material placed on record.

6. According to provisions of The Illegal Dispossession Act, 2005 person, who can approach the court of competent jurisdiction for seeking relief under the provisions of the Act ibid, having been defined, are namely owner and/or occupier of the subject property. Definitions of occupier and owner for the purpose of applicability of the provisions of the Act ibid, have been provided by clauses (c) and (d) respectively of Section 2 of the Act ibid, which for the sake of convenience are reproduced here:- "2(c) "occupier" means the person who is in lawful possession of a property; "2(d) "Owner" means the person, actually owns the property at the time of his dispossession, otherwise than through a process of law."

7. For the sake of convenient subsection (1) of Section 3 of the Act ibid and Subsection (1) of Section 4, under which the Court can take cognizance of the offence under the provisions of The Act ibid, are reproduced here:-- "

3. 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. "

4. Cognizance of offence.

(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint."

8. From the above, it is clear that for attraction of provisions of The Act ibid and in order to get the benefit of subsection (1) of Section 3 of The Act ibid, the complainant has to prima facie establish before the court that he is lawful owner or was occupier of the subject property; that accused had entered into or upon the said property without having any lawful authority; and, that the accused had done so with the intention to dispossess or to grab or to control or to occupy the said property.

9. From a perusal of the record it would be seen that photocopy of purported Sanad alleged to have been issued under Gothabad Scheme in respect of an area of 4000 Sq. Ft does not seem to be genuine one, as Sanad for such an area of 4000 sq. feet could not be issued under the Gothabad Scheme; the copy of purported Entry No.24 of Deh Form-II, which is shown to have been signed by someone "for Mukhtiarkar Gothabad District Badin" and not by the competent authority also does not seem to be genuine, the report of spot inquiry furnished to the learned Additional Sessions Judge by the Mukhtiarkar Taluka Badin after verifying the record revealed that the original record of Mukhtiarkar Gothabad Badin was burnt on 03-02-2008 and such FIR was lodged at Police Station Badin; and it has also come on record that the respondents has encroached upon an area of 5000 sq.ft. by constructing Katcha but recently, per report, earlier it was lying vacant since last more than 30 years. In such view of the matter, the applicant has failed to prima facie establish that he is owner and/or occupier of the subject property; moreover, nothing has been brought on record, even to remotely suggest that the respondents Nos.2 to 4 have any right or vested interest over the property encroached upon by them, which even otherwise is a Government property as was asserted by the learned counsel for the private respondents, therefore, while dismissing this Criminal Revision Application, being devoid of merit, the Deputy Commissioner Badin is directed to take appropriate action for removal of the encroachments from the subject Government property in accordance with law within thirty (30) days of this Judgment. These are the reason of short order announced by me on 14.11.2018, whereby this Criminal Revision Application was dismissed. A copy of the order be provided to the learned Additional Advocate General, Sindh for compliance. SA/A-39/Sindh Revision dismissed.