2004 PLP 1991 (YLR)

I have heard the learned counsel appearing for the respective parties and have also gone through the record. It has been contended by the learned counsel for the applicant that the applicant is the bona fide owner of the property which was mutated to the Record of Rights maintained by the concerned Government Department. It has, further, been contended that the trial Court while deciding application under Order XXXIX, rules 1 and 2, C.P.C. rejected the plaint of the suit under Order VII, rule 11, C.P.C and that too without causing any notice thereof upon the applicant-plaintiff. Moreover, no consideration was given to the point with regard to the fact that title documents own the name of the applicant. It has, further, been contended that the learned trial Court as well as the Appellate Court erred in holding that the jurisdiction of the Court is barred under the provisions of the Act, 1991 ignoring the fact that the said Act relates only to the encroachments on the area of National Highway whereas in the present case the applicant-plaintiff does not come within the definition of an encroacher and owns the suit plots situated on the National Highway. . On the other hand, learned counsel for the respondents Nos.2 to 6 has contended that section 12 of the Act, 1991 empowers the Authority to demolish and remove any structure summarily which is proposed for the site whereas section 30(2) of the Act read with section 90, C.P.C. bars the jurisdiction of the Courts in respect of the suit. It has, also, been contended by the learned counsel for respondents Nos.2 to 6 that the act of the respondents was for the public purpose as such the applicant plaintiff had no prima facie case. Moreover, applicant-plaintiff could have exhausted adequate remedy of damages as laid down under rule 7 of the Act, 1991. Learned Assistant Advocate-General appearing for respondent No.1 adopted the arguments of the learned counsel appearing for respondents Nos.2 to

6. I have considered the arguments of the learned counsel for the applicant as well as learned Assistant Advocate-General Sindh, appearing for respondent No. 1, and learned counsel, appearing for respondents Nos.2 to 6 and have also perused the record. Taking into consideration the point with regard to the powers of National Highway Authority defined in section 12 of the Act, 1991, it would, firstly, be appropriate to quote here the said section:-- "12 Powers to eject unauthorized occupants: Subject to rules, the Authority' shall have power to summarily eject any unauthorized occupant of National Highway or strategic road or proposed site thereof and demolish and remove any structure thereon, and to use such force, including police force, a as may be necessary for the purpose and to recover the cost thereof from the person responsible for such occupation or obstruction." The bare reading of the above section leads us to understand that the Authority shall have power to summarily eject only unauthorized occupant of National Highway or strategic road or proposed site thereof and demolish and remove any structure thereon. Here, in the present case, the plea of the applicant-plaintiff is that he is the bona fide owner of the property which was mutated in the Record of Rights maintained by the concerned Government Department and the title documents copies annexed herewith as annexures, on his name. It has, specifically, been asserted by the applicant plaintiff that Plot bearing No.20 was allotted to him by the Settlement Authorities on 10-3-1976 in respect where of Permanent Transfer Order (P.T.O.) was issued in his favour besides the entry in the relevant record of Revenue Department Whereas plot admeasuring 32 x 42 =1344 Sq. feet was also entered in Deb Form-11, showing its boundaries as 'Moroosi Plot' by the Mukhtiarkar Mirpur Sakro, Plot No. 16 admeasuring 10 Sq. yards was purchased by him from one Muhammad Hashim son of Ali Muhammad Jokhio through registered sale-deed dated 10-1-1998, entries whereof were ultimately made in Record of Rights in his name showing the sketch and boundaries thereof in the sale-deed and Deh Form II. Plot bearing No.25 was initially granted by the, Settlement Department to one Gul Muhammad son of Nabi Bux Jokhio through P.T.O. No.656, dated 5-7-1979 which was, thereafter, purchased by-him through registered sale-deed, entries whereof were also made in the Record of Rights in his name and Plot No.354 was granted to him under the provisions of Sindh Goth Abad (Housing) Scheme Act, 1987 by the Goth Abad Scheme Authorities and such Deh Form II and sketch were also issued. Now, in view of above assertions be point whether the applicant is a lawful owner of the suit plots or an unauthorized occupant to whom the National Highway Authority can eject following section 12 of the Act, 1991, can only be decided after recording evidence without which justice cannot be dispensed with to either of the parties. So far as the point with regard to barring the jurisdiction of the Courts to try the suit is concerned, I may again, for the sake of convenience tote section 30(2) Act, 1991:-- "(2) No suit, prosecution or other legal proceedings shall lie against the Authority, the. Chairman or any Member, officer, servant, expert, or consultant of the Authority in respect of any damage caused or likely to be caused or anything done or intended to be done in good faith under this Act or the rules or regulations." Again, perusal of the above quoted subsection (2) of section 30 of Act, 1991 reveals that suit, prosecution or other legal proceedings shall not lie against the Authority, the Chairman or any Member, officer, servant, expert, or consultant of the Authority in respect of only any damage caused or likely to be caused or anything done or intended to be done in good faith under this Act or the rules or regulations. Here, in the present case, since the applicant-plaintiff claims to be the legal owner and possesses the documents, the action taken by the Authority under the Act, 1991 cannot be defined in accordance with good faith particularly when the authority was tried to be apprised of the ownership by the applicant-plaintiff by producing original documents. Where the Government functionary intends to demolish construction of a property or intends to " acquire a property which is legally owned by a person, citizen is supposed to knock the door of the Court. The interpretation of this section by the learned Senior Civil Judge is against the principles of natural justice and if the practice to demolish construction or acquire any property, owned by the citizen, is allowed by the Courts under the shade of misinterpretation of law, no one would feel secured though he has got legal ownership of his property. Moreover, it can also be observed that according to law whenever remedy is not available for the citizen, he is always at liberty to knock the door of this Court under its Constitutional jurisdiction but since this case is based on factual controversy which cannot be agitated in the Constitutional petition, the only remedy remains for the applicant is to approach the Civil Court which has got inherent powers under section 151 of Civil Procedure Code. In such an ambiguous situation, learned Senior Civil Judge, Thatta (Mr. Iqbal Ahmed Khawaja) was not supposed to pass the judgment rejecting plaint under Order VII, rule 11, C.P.C. suo motu while deciding application, filed under Order XXXIX, rules 1 and 2, C.P.C. by the applicant-plaintiff for getting interim stay. Such judgment seems to have been passed in a hash has manner that, too, without putting the applicant-plaintiff on notice enabling him or his counsel to come prepared on such a point. It may not be out of place to observe here that the practice of getting disposal of the cases in a short-cut manner has become common in the lower judiciary and the learned Judges mostly try to get the units, to be shown to this Court on its administrative side, reject the plaints of the suits under Order VII, rule 11, C.P.C. without considering that their hasty orders can cause irreparable loss to the plaintiff(s). The judgment dated 21-7-2000 passed by the learned Senior Civil Judge, Thatta (Mr. Iqbal Ahmed Khawaja) is one of these instances. He, either, having poor knowledge about the law of interpretation or for getting the units, has passed the judgment in a hasty manner without providing opportunity to the applicant plaintiff or his representative/Advocate to come prepared and argue on the point of maintainability of the suit. Moreover, the learned Appellate Court i.e. 1st Additional District Judge, Thatta has also dismissed the appeal observing that National Highway Authority had issued notice under section 11 of Act, 1991 to the applicant-appellant on 11-7-2000. For the sake of convenience, section 11 of Act, 1991 is reproduced hereunder:-- "

11. Plans and schemes." (1) The Authority shall prepare a master plan for the development, construction, operation and maintenance of National Highways and roads in Pakistan for the approval of the Council. (2) The Authority may frame a scheme or schemes for all or any of the following matters, namely:-- (i) construction, expansion, operation and development of National Highway and strategic roads; (ii) research and development in the field of Highways; (iii) training of the Authority's employees; (iv) welfare of the Authority's employees; and (v) any other matter pertaining to the purposes and functions of the Authority or incidental thereto." The contents of above quoted section do not indicate that under this section the Authority issues notice to the person, having acquired the property of National Highway as an encroacher, or he should in response thereof reply to such notice. The observation of the learned Appellate Judge that:-- "The respondents National Highway Authority has issued notice under section 11 of National Highway Act, 1991 to the appellant on 11-7-2000. The appellant has not exhausted the departmental remedy by replying the notice and submitting the documents, sketch and site-plan of the lands over which is alleged by - National Highway Authority that appellant have encroached upon." is not understandable because when section II of the Act, 1991 only defines 'Plans and Schemes' of the Authority, how the notice was issued to the applicant appellant under said section and in what way he could have exhausted the departmental remedy inasmuch as he, in his pleadings, has very much asserted that he approached respondents Nos.2, 3 and 4 to 6 showing them the relevant documents in respect of the suit plots and also beseeched them not to demolish the construction raised by him on the suit plots but the said respondents instead of hearing him or acting according to law, issued serious threats of demolishing the construction. In such a situation, I am inclined to hold that both the Courts below have wrongly applied section 30 of Act, 1991 and the suit of the applicant-plaintiff was very much maintainable. For what has been discussed above, I am of the considered view that this F revision application merits to be allowed. The case of the applicant-plaintiff is remanded back to the trial Court for deciding the same on merits after leading evidence by both the parties. Lastly, it is ordered that not only copy of this order may be placed on the personal file of Mr. Iqbal Ahmed Khawaja, learned Senior Civil Judge but learned Member, Inspection Team of this Court is required to look into the matter on administrative side. Civil Revision Application No.234 of 2003 stands disposed of. M.H./A-43/K Case remanded.