P L D 1985 Karachi 312 (PLP)

2. The facts leading to this Revision Application, briefly stated, are that the applicants on 4-5-1972 filed a Civil Suit bearing No. 816 of 1972 in the Court of IXth Civil Judge, First Class, Karachi, praying for declaration and injunction.

3. It was, inter alia, averred in the plaint that the applicants were in occupation of land in suit, since 1965. The possession, initially, was unauthorised. However, the Governing Body of the respondent i. e. K. D. A. in order to solve the problem of unauthorised occupation of land by a number of unauthorised persons, including the applicants, passed a Resolution No. 190(3) on 27-5-1969 read with earlier Resolution No. 278 of 4-10-1968 and decided, inter alia, that the possession of land in the Displaced Persons Townships, including the Drigh Colony, where the land in question is situated, be regularised and the cost of the land be recovered at the rate of Rs. 25- per . sq. yd. plus Rs. 5 per sq. yd. as penalty for unauthorised occupation.

4. It was further averred in the plaint that the respondent regularised the cases of many other unauthorised occupants on the same terms and conditions but not of :he applicants. The applicants made a representation to the Commissioner of Karachi, Chairman of the respondent governing body who passed an order that the K. D. A. was willing to let the applicants purchase the plots of land occupied by them unauthorisedly on payment of auction price prevalent in the area.- Aggrieved with the same, the applicants filed the suit seeking, inter alia, the relief of declaration that the plaintiffs (Applicants) are entitled to regularisation of their cases of unauthorised occupation in respect of the areas in their possession on payment of Rs. 25 per sq. yd. towards cost of land plus Rs. 5 per sq. yd. as penalty, as resolved by the respondent.

5. The respondent filed an application under Order VII, rule 11, C. P. C. for striking off the plaint on the ground that in view of section 11(2) of the Sind Public Property (Removal of Encroachment) Act V of 1975 the suit has abated. The learned Civil Judge agreed with the contention of the respondent and allowed the said application. The applicants filed an appeal which was dismissed by the learned I11rd Additional District Judge, Karachi. Being aggrieved with the said judgments they have now preferred this Revision Application.

6. I have heard Mr. Azhar Ali Siddiqui, learned counsel for the applicants and Mr. Sabir Hussain Qizilbash, learned counsel for the respondent, K. D. A.

7. The only point for consideration. is whether the two Courts below have legally exercised their jurisdiction in dismissing the suit as having been abated. The point requires examination as to the application of section 11(2) of the said Act to the facts of the present case. The relevant section is reproduced below : "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 to be done under this Act. (2) All suits, appeals and applications relating to encroachment and dispute that any property is not a public property or, that any lease or licence in respect of such property has not been determined, for the purpose of this Act, shall abate on 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, rile 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."

8. Mr. Sabir Hussain Qizilbash has placed his reliance on Murad Bux v. Haridas and 4 others (P L D 1975 Kar.1046). The case relied on by Mr. Sabir Hussain Qizilbash does not lend any support to him as there can be no cavil on the point that the jurisdiction of the civil Court is barred if there is dispute that any property is not a public property whereas in the present case no such claim or even an assertion has been made by the applicants. They have admitted that the property in question is a public property and vests in K. D. A., but they are claiming a right of transfer to them by virtue of certain Resolutions passed by the respondent K. D. A. for regularization on certain terms and conditions.

9. On the other hand, Mr. Azhar Ali Siddiqui has referred to a decision by a Division Bench of this Court Syed Weedhal Shah and 8 others v. Province of Sind and another (P L D 1978 Kar. 464) wherein it has been observed that exclusive jurisdiction of the Tribunal to determine the question would be when a question that the property is not a public property arises in the proceedings contemplated by the Act and not independently of it. Reliance may also be placed on .another case Karachi Municipal Corporation v. Ali Husain (P L D 1976 Kar. 995).

10. In my view, the provisions of section 11 are not attracted to the facts of the present case. The dispute does not relate to a question whether the land is or is not a public property or, that any lease or licence has not been determined for the purpose of this Act. The case of they applicants in the suit was that although initially they were unauthorised occupants but by virtue of Resolution No. 190 passed by the Governing Body of the K. D. A., it was decided to regularise their unauthorised possession on recovery of the stipulated cost of land and penalty. As would appear from the nature of the suit, the applicants claimed a right to retain possession of the property in question as authorised occupants in terms of the aforesaid resolutions which were sought to be enforced through the suit filed by them. In my view, therefore, the suit as framed did not fall within the mischief of section 11(2) of the Sind Public Property (Removal of Encroachment) Act, 1975, which provides for abatement of a suit "relating to encroachment and dispute that any property is not a public property or, that any lease or licence in respect of such property has not been determined", which is not the claim or the case here.

11. In this connection, I may also refer to section 13 of the aforesaid Act, which prescribes the extent of the scope of exclusive jurisdiction of the Tribunal. Statutory Tribunal constituted under the said provision has exclusive jurisdiction "to adjudicate 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." I find that in this case where the adjudication called for in deciding the suit falls beyond the limited questions transferred to the exclusive jurisdiction of the Tribunal, the general jurisdiction vesting in the civil Court remains unaffected.

12. My conclusion, therefore, is that the suit is not hit by the provision of section 11(2) of the Sind Public Property (Removal of Encroachment) Act, 1975. The Revision Application is, therefore, accepted and the impugned judgment dated 31-10-1975 passed by the learned 1st Senior Civil Judge, Karachi and judgment dated 19-12-1975 passed by the learned lIIrd Additional Judge, Karachi are set aside. There will, however, be no order as to costs.

13. Now, the case will go back to the Court of learned First Senior Civil Judge, Karachi for trial on merits The learned counsel for the parties request that the learned trial Judge may be directed to dispose of the suit within a given time as the matter is hanging fire for nearly a decade. The request is reasonable. I will, therefore, direct the learned trial Court to decide the suit within six months from the date of the receipt of the judgment of this Court. Revision accepted.