P L D 1976 Karachi 995 (PLP)

Subject: Breach of condition of Licence. Dear Sir, I have to say that office No. 9, Akbar Road was allotted to you in your personal capacity under a licence but from enquiry it has been revealed that a portion of the said office is being used for residential purposes, while a portion has been sublet to Messrs Afaq Films on rental basis. A window has also been opened in the same without obtaining any permission. Rent of the same is also in arrears. You are therefore called upon to show cause within seven days of the receipt of this notice why the said license should not be cancelled. If no reply is received within the said period or the contents of the reply are found to be unsatisfactory, the said license shall stand cancelled. (Sd.) Chief Officer." The respondent denied the assertions of the appellant in the notice and claim ing to be tenant filed Suit No. 472 of 1955 (out of which the present appeal has arisen) initially in the Chief Court of Sind but subsequently it seems to have been transferred to the Court of II Sub-Judge 1st Class, Karachi. The case of the respondent in the plaint was that he was the tenant of the appellant in the premises but the appellant was treating him as a licensee and wanted to take over the possession of the demised premises illegally. Following is the relief clause of the plaint:- "

33. The plaintiffs therefore claim:- (1) A declaration that they as well other occupants of defendants building paying rent to defendants are monthly tenants and not licensees. (2) A declaration that so-called document of licence is not inforceable in law. (3) That a permanent injunction be issued against defendant his servant workmen and other persons sent by defendant to restrain them from forcibly interfering with their tenancy right. (4) That defendant be ordered to open immediately the seal of shop No. 11, Hassanaly Afrandi Road, Karachi. (5) Any other relief that may be necessary may also be granted. (6) Costs of the suit may be awarded."

3. The appellant contested the suit and in denial of the case of the respondent, contended that the latter was only a licensee of the appellant. Among the issues framed by the Court the following two issues were framed :- "(1) Is the plaintiff-tenant of the defendant in respect of office No. 9/2, Akbar Road and has been in continuous possession of the same for the last many years? (2) Is the plaintiff a mere licensee as alleged by the defendant in respect of the premises in dispute?" The learned Civil Judge, on assessment of the evidence came to a finding that -the respondent was not a tenant but only a licensee of the appellant and dismissed the suit. The respondent challenged the decision in appeal before the District Judge, who on the construction of the agreement held that the respondent is the lessee of the appellant and accepting the appeal decreed the suit of the respondent. The appellant then filed the present second appeal.

4. Diwan Bashir Ahmed Khan, learned counsel for the respondent in support of the application invoking section 11(2) of the Act, has contended that in terms of that provision this appeal has abated and the remedy, if any, of the appellant now lay before, the Tribunal constituted under the Act He relied upon Murad Bux v. Haridas and others (P L D 1975 Kar. 1046). On the other hand Mr. Nasrullah Awan the learned counsel appearing for the appellant contend ed that the di3pute in the suit does not fail within the purview of section I1 of the Act. It was submitted by him that the case of the appellant is not that the licence has been determined and hence the dispute is not of the nature contemplated in the said section. In the alternative, be submitted that if it is held that the appeal has abated by the operation of the said provision it will have to be held that the entire proceedings have abated and the decree passed in favour of the respondent would also stand abated.

5. It would be necessary to reproduce section 11 of the Act which reads as under; "

11. 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 dune 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 Acts Provided that a party to such suit, appeal or application may, within thirty days of the coming into force of this Act, file 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." As observed by my learned brother, Fakhruddin Ebrahim, J., in the case of "Murad Bux the express purpose of the Act is to provide measures for removal of encroachment of public property and I would add, also to provide for .adjudication of disputes of specified nature relating to action for removal of encroachment by a Tribunal of exclusive jurisdiction constituted under the Act. Section 11 of the Act is the provision for ouster of jurisdiction of the civil Court and section 14(2) given finality to the orders made by the Tribunal which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. These matters would necessarily be such that arise in connection with disputes which are within the jurisdiction of the Tribunal to decide. In this connection section 13 of the Act reads as -.follows:- "

13. Exclusive jurisdiction.-A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property hag not been determined, for the purpose of this Act."

6. Now subsection (1) of section 11 of the Act is intended to oust the jurisdiction of the civil Court prospectively with effect from the date of coming in force of the Act, so that after the date of Act no suit relating to a dispute of the prescribed nature can be entertained by the civil Court and an interested party has to take such dispute to the Tribunal. Subsection (2) on the other hand deals with pending legal proceedings relating to such disputes and provides for their abatement. However, the proviso to this subsection preserves the right of an interested party to remedy, inasmuch as any party to such abated proceedings can file a suit before the Tribunal.

7. Since section 1 t provides for ouster of jurisdiction of the civil Court it had to be strictly construed. Clause (c) of section 2 of the Act defines `Encroachment' to mean unauthorised occupation of or undue interference -with public property. For an appeal to abate it must relate- (i) to encroachment or in other words, to unauthorised occupation o public property, and (ii) to dispute that any property is not a public property, or that any lease or licence in respect of such property has not been determined. If an appeal does not relate to encroachmeat and to a dispute of the above nature, it will obviously not abate and can remain in the ordinary Courts for decision. 7-A. Now the question is whether the present appeal satisfies the above conditions. As stated above the facts of this case show that the appeal does not relate to encroachment as there is, so far, no question of unauthorised occupation of public property. For it is the case of the appellant that the respondent is the licensee in respect of the property and only a notice was issued to him to show cause why the license should not be cancelled. The question of unauthorised occupation would only arise when the licence is cancelled or revoked or the lease is determined. Also the appeal does not relate to a dispute that the licence has not been determined. The only dispute, at this stage, between the parties is whether the agreement between the parties constitutes a lease or licence. Therefore, nine of the two condi tions prescribed in subsection (2) of section 11 of the Act exists in this case. The dispute in this appeal, therefore, doe not fall within the ambit of that section and the appeal has not abated. If and when the appellant terminates the lease or licence of the respondent, any dispute raised by the respondent ,may be a matter for the Tribunal to decide.

8. For the foregoing reasons the application is dismissed. The office will now fix the appeal for further hearing on merits. S. Q. Application dismissed.