P L D 2025 Peshawar 227 (PLP)

FAZAL SUBHAN, J.

The Provincial Government through Secretary Board of Revenue, Khyber Pakhtunkhwa and others (Petitioners) have filed the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 (constitution), and have called in question the Judgement and order of the learned Tribunal, established under the Khyber Pakhtunkhwa (Removal of Encroachment) Act, 1977, (Act), (Amended vide amendment Act No.XXXIII of 2021), and have made the following prayers. "It is therefore, humbly prayed that on acceptance of this Writ Petition the impugned Judgment, Decree and Order dated 29.09.2018 passed by the learned Additional District Judge-V/ Judge Tribunal, Kohat may very kindly be declared as without jurisdiction, illegal, void, without lawful authority and no legal effect and accordingly the impugned Judgment, Decree (partial) and Order may kindly be set aside".

2. Brief facts of the case are that the Assistant Commissioner Kohat (respondent No. 2) issued notice bearing No. 278 dated 1.03.2016 under section 3 of the Act intimating the respondents that they have illegally encroached upon 441 Kanals 19 Marlas of State Land in eight Khasra numbers i.e. 77/1, 71, 82, 83, 84, 85, 257 and 329, total measuring 1320 kanals and 8 marlas, situated at Mouza Jermam, District Kohat. It was further conveyed through the notice that without effecting partition, the respondents have started construction of a Model town and are making allotment of plots, whereas the matter being disputed, is subjudice before the Provincial Ehtisab Commission and directions of suspension of developmental work has been issued, hence the respondents were directed to remove all encroachments and illegal occupation from the public property within 07 days.

3. Aggrieved therefrom, the respondents filed/instituted a suit before the Tribunal for declaration and permanent injunction to the effect that they are owners and in possession of 697 kanals 14 Marlas, in the suit property on the basis of mutations, vouchers, and sale agreements and after getting no objection certification (NOC) from the Municipal Committee Kohat and payment of relevant taxes to the TMA Kohat, have spent millions on establishment of Model Town, hence notice No. 278 dated 1.03.2016, being wrong, illegal and unauthorized is ineffective upon their rights. In addition, they also prayed for a decree of possession and recovery of damages.

4. On filing the suit, the petitioners submitted their written statements and from the pleadings of parties, the learned Tribunal framed issues as following.

1. Whether the plaintiffs have got a cause of action?

2. Whether the plaintiffs are owners in possession of about 697 kanals 14 marla of land as their ownership?

3. Whether NOC issued by the TMA, Kohat in favour of the plaintiffs permitting them to construct Housing Society was validly and legally issued?

4. Whether NOC to the plaintiffs was issued for about 361 kanal 16 marla but the plaintiffs have encroached into the State land i.e public property by occupying it and making construction and development of the Housing Society As Model Town, Kohat thereby committing encroachment into the public property and liable to be dispossessed?

5. Whether any other land beyond the land mentioned in the NOC can be covered by the NOC?

6. Whether the defendants Nos. 11, 12 and 13 are owners in possession of some of the impugned land mentioned in the impugned Notice No. 278 land/public property?

7. Whether the NOC issued to the plaintiffs has not been cancelled/revoked for the reason that plaintiffs have not fulfilled the terms and conditions of the NOC and had gone beyond the land mentioned in the NOC?

8. Whether the plaintiffs are entitled to the relief as prayed for?

9. Relief?

5. Both the parties availed the opportunity of producing their respective evidence, whereafter, the learned Tribunal vide its judgement dated 24.09.2018, partially decreed the suit to the extent of declaring the notice No. 278 dated 1.03.2016 to be null and void. Aggrieved therefrom, the petitioners have filed this petition.

6. Arguments of learned AAG on behalf of petitioners and learned counsel for respondents heard.

7. The Khyber Pakhtunkhwa (Removal of Encroachment) Act 1977 (as amended) is a special enactment, promulgated for the purpose of evicting unauthorized occupant and encroachers from the public property. The term "encroachment" has been defined in Section 2 (c) of the Act, which means: "encroachment" means unauthorized occupation, temporary or permanent, of public property; The Act has also defined "public property" and "unauthorized occupant" in section 2(h) and (J) as under: "public property" means a building, land, place or premises, which vests in, or is in the possession or under the management or control of Government, Local Council, autonomous body, 6[public sector company] or such other authority; "unauthorized occupant" means a person who has made encroachment on, or is in occupation of, any public property without the express permission or authority of a competent authority and includes

(i) a lessee or licencee who after the expiry of the period of lease or licence or on determination of such lease or licence, continues to remain in occupation of any public property; (ii) a person inducted into any public property by the lessee or licencee thereof; and (iii) every member of the lessee's or licencee's family l[or a member of the family of any person inducted by the lessee or licensee into the public property under sub-clause (i),] who remains in occupation of any public property after the expiry of the period of lease or licence or after the determination of the lease or licence in respect of the same. Section 3 of the Act has provided the mode and manner of eviction of an authorized occupant which read as under: - (1) If the authorized officer is satisfied that a person is an unauthorized occupant, he may, by order in writing, direct such person to vacate the public property and to remove the structure at his own risk and cost, if any, raised by him on the public property, within such period as may be specified in the order: Provided that such period shall not be less than three days: Provided further that where the encroachment is on a road, a public thoroughfare, a water body, a river or a river bed, the authorized officer shall dispense with the issuing of order and shall forthwith proceed to remove the encroachment or structure at the sole risk and cost of the encroacher. (2) The order under subsection (1) may be served by- (a) giving or tendering it to the unauthorized occupant or any adult male person residing with him; or (b) affixing it at a conspicuous place on or near the public property to which it relates. (3) The order, under subsection (1), may, inter alia, contain? (a) the date from which the person is in un-authorized occupation of the public property that may be determined, inter alia, by use of technology authorized in terms of section 9A of this Act; and (b) the recovery of costs, penalties and fine, and the punishment that may be imposed upon the un-authorized occupant as provided under this Act.]

8. The moot question, therefore, for determination of the Tribunal was as to whether the respondents were unauthorized occupants of the public property. For this purpose, the statement of PW-1 Qasim Khan Patwari Halqa is of utmost importance. During his statement, he produced revenue record goshwara Hisas of the co-owners of suit property as Ex.PW1/1, which shows that out of 1320 Kanal 8 marlas in all the 8 Khasras, the petitioner No. 1 (Provincial Government) is owner of 441 kanal 19 marlas, Model Town 406 Kanal 16 marlas, other owners/allottes 425 kanals and National Highway Authority (NHA) 46 Kanals 13 marlas. From the said record, it is clear that on the spot, the respondents are in possessions of 700 kanals 9 marlas, other owners/allottees 492 kanals 10 marlas and NHA 74 Kanals 16 marlas whereas the petitioner No. 1 is not recorded in possession of any portion of the suit property. This indicates that the respondents other owners/ allottes and NHA are in access area/land in comparison to their entitlement/ownership.

9. From the above record, it cannot be denied that petitioner/ Provincial Government despite being owner of 441 Kanal 19 marlas is not possession, however it is admitted fact on record that the suit property is still joint and no official partition has taken place by meters and bounds. It is well settle law that a co-owner, in possession of an excess: area then his entitlement cannot be evicted except in due course of law, for the reason that possession of one co-owner/co-sharer is considered to be possession of all the co-sharers. The only course that can be adopted to oust the co-sharer from the excess area in his possession, is to seek partition of the land. From the record brought on record from patwari halqa, there is no doubt in our minds that the respondents are co-owners in the suit property along with defendants Nos.11 to 13 of the suit vide Jamabandi for the year 2007-08 Ex.PW-1/2. Ex.PW-1/3 (consisting of 67 sheets) are copies of mutations attested from private owners as well as from the petitioner No. 1 in favour of private persons through different letters issued by the Board of Revenue Department. Mirza Sikandar, Reader to Assistant Commissioner Kohat was examined as DW-2 and during cross-examination he answered: - "It is correct that the original of the notice, mentioned above, has not produced by me or any other official for our office. It is correct, that the Khasra numbers, mentioned in this notice, are the joint ownership of different people including the Provincial Government. An area of 406 Kanals 09 marlas has been correctly admitted as the ownership of the plaintiffs in the notice issued by the then AC, Kohat . It is correct that no suit for partition has been filed by the Provincial Government or AC, Kohat on behalf of Provincial Government. I am not in knowledge in respect of allotment of the property owned by the Provincial Government in the names of different tenants. It is correct that I am not in possession of any other documents to show the process on the basis of this notice under section 3 of Public Property Removal of Encroachment Act, 1977)".

10. From the overall consideration of available record it is an undeniable fact that the respondents are co-owners/co-sharers in the suit property and therefore one co-owner cannot evict another co-owner, without having recourse to partition, and though the respondents are in possession of land in excess to their entitlement but they can not be held to be illegal occupant within the meaning of Section 2(h) of the Act, hence such co-owner cannot be served with a notice under Section 3 of the Act, as they hold the suit property not as a encroachers but as co-owners/co-sharers and they can only be evicted from the suit property/excess land by approaching the competent forum for partition.

11. For the above mentioned reasons, a notice under section 3 of the Act to a co-owner/co-sharer is illegal and void ab initio, and therefore the learned Tribunal has rightly declared the same to be null and void. The petitioners have unable to show any illegality, irregularity, mis-reading or non-reading of evidence in the impugned judgement hence, the same is upheld and this petition being devoid of any merits, stands dismissed. MH/109/P Petition dismissed.