2022 PLP 556 (CLC)

MAHMOOD A. KHAN, J.

Through this petition, the petitioner has challenged the order dated 08.02.2021 passed by the Anti-Encroachment Tribunal, Hyderabad formed under the Sindh Public Property (Removal of Encroachment) Act, 2010 i.e. Sindh Act No.XVIII of 2010, (hereinafter referred to as the said Act), whereby the occupation of the petitioner has been directed to be removed and the concerned official was directed to demolish. and remove the illegal construction of his Cabin from the public property on the public road within fifteen (15) days thereof on the application of the private respondent No.1 herein in the proceedings being No.30 of 2020.

2. In the memo. of the petition the allegations have been made that the impugned order has been obtained on behest of son of respondent No.1 working as District Attorney Tando Allahyar in respect of the cabin to which the petitioner claims entitlement on account of the petitioner paying to the concerned Municipal Committee Tando Allahyar rent in the name of Pacca Piri for an area of 7x9=63 square feet since 1965 lastly in the sum of Rs.600/ - per month and having acquired electricity in the year 2000 whereas the respondent No.1 had acquired the residential plot admeasuring 4239 square feet in the year 1992 near the occupation of the petitioner. It is also stated in the memo. of petition that the respondent No.1 in the year 2018 filed a. Constitution Petition bearing C.P No.D-2983 of 2018 against the official respondents required the removal however, the same was disposed of vide order dated 08.09.2019 wherein the said respondents required to approach the concerned tribunal under the said Act.

3. The grounds taken in the memo. of petition are that the impugned order is non-speaking without jurisdiction and that the respondent No.1 is not having any right, title or interest in the Municipal property; that the application was wrongly entertained and that the petitioner being a grantee since 1965-66 through their predecessor paying the rent was not liable to be disturbed and there was no complaint of encroachment by the competent authority, as such the impugned order is without lawful authority and is of no legal effect.

4. Comments in the matter were obtained from the respondents whereas the Municipal Authority taking in as respondent No.5 having failed to file the comments was required to be in attendance through their administrator who effected appearance submitting the same continents as filed before the learned Tribunal requesting that the same be adopted to this petition also. The version of the official respondents is that the petitioner is in occupation under the payment of the rent however, no permanent rights in this regard are available to the petitioner whereas the private respondent No.1 requires removal by supporting the impugned order states that the subject cabin is in front of the plot belonging to the said respondent and that after calling upon different authorities finally the constitution petition as referred above was filed and in compliance of the order passed thereon the approach to the Tribunal was made under the said Act. Proprietary rights of a person paying the rent in the name of Pacca Piri was also denied.

5. Learned counsel for the petitioner contended that the impugned order is liable to be set-aside as no evidence was taking by the learned Tribunal and that the only government servant as required under Section 3 is empowered under the said Act.

6. On the last date of hearing as the alleged factual controversies were found absent which otherwise are not open in a constitution petition. The controversy between the parties was narrow down to the element of "jurisdiction available to the Tribunal open to be exercised by a private person under the said Act". Today, learned counsel for the petitioner in this respect refers to Section 3 of the said Act stating that the said Section provided the exercise of powers by concerned Government officials by providing a notice and the encroachers as such requiring (as the case may be) is / are to approach the tribunal as the said Section 3 does not provide for any available approach by a private person as such the exercise of jurisdiction by the Tribunal as such is not available. He has referred to a portion of Suo-Motu case No.16 of 2011 reported as 2011 PLD Supreme Court page 443 contended that unauthorized land occupation being a encroachment upon government land the case registered under the said Act were considered and not by any private person. It is further contended that the subject property of the petitioner being admittedly public property, the private person cannot approach the tribunal under the said Act.

7. Learned Addl. Advocate General, Sindh however, contended that the public property is defined under Section 2 subsection (o) of the said Act, to which the subject property was fully covered and Section 3 requiring removal thereon of any structure and the tribunal was well empowered to pass the impugned order.

8. Learned counsel for the private respondent No.1 in this regard referred to Section 11 proviso thereof and Section 13 of the said Act contended that the Section 11 of the Said Act provides bar of jurisdiction to the Civil Court of any proceedings and injunctive order relating to a dispute as to the subject property being public property or the lease, or the licensee thereof in respect of the said property whereas Section 13 also bars the same and requires determination thereof for the purpose of the said Act, as such, he supports the impugned order.

9. In rebuttal, learned counsel for the petitioner contended that the forum available for the respondent No.1 was civil proceedings however, he could not provide any explanation to the bar and exclusive forum referred above.

10. Having heard the learned counsel for the parties and gone through the record. In our understanding, it is better to refer the relevant sections concerning jurisdiction available to the Tribunal, as such, for a ready reference same are reproduced hereunder: AN ACT "to provide measures for removal of encroachment from public property and to retrieve possession. Preamble.

Whereas it is expedient to provide measures for removal of encroachment from public property and to retrieve possession and for matters ancillary thereto; (o) "Public Property" means a building, land, place or premises vesting, in or under the management or control of Government, local council, autonomous body or registered cooperative society or such other authority;

3. Removal of encroachment and structures.

(1) Government or any authority or officer authorized by Government in this behalf may require the person directly or indirectly responsible for encroachment to remove such encroachment together with. the structure, if any, raised by him on the public property, within the period not less than two days as may be specified in the order. Explanation.

Lesse or licensee who after the expiry of the period of lease or license or on determination of such lease or license, continues to retain unlawfully possession of any public property shall for the purpose of this subsection, be deemed to be responsible for encroachment.

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 license 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 license in respect of such property has 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 seven days for 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 license in respect of such public property has not been determined.

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 license in respect of public property has not been determined for the purpose of this Act.

14. Procedure and Powers of the Tribunal.

(1) Tribunal shall decide any suit or application in such manner and in accordance with such procedure as may be prescribed. (2) Any order made by the Tribunal which conclusively determines the rights of the parties with regard to all or any of the matters in controversy shall be final and binding on the parties. (3) The Tribunal shall have power of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) as to - (a) Summoning and enforcing the attendance of any person and examining him on the oath; (b) Receiving evidence on affidavit; (c) compelling the production of documents; (d) issuing commission for examination of witnesses or documents. (4) The proceedings before the Tribunal shall be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act No.XLV of 1860).

11. We have after going through the above describing the jurisdiction observed that this subject law has been created to deal with almost all the normal problems in vogue for the matters concerning encroachments. The same include encroachment which, is relating to land, building and public property as defined therein. The said public property has been defined under the heading of public property by Section 2 (o). It needs no mention of law that the management of public property is as such the duty of the concerned officials. In the present case, the petitioner had approached the concerned officials however, on failure of their action to the satisfaction of the petitioner the tribunal was approached after the approach to this court by way of constitution petition referred therein. We do not agree that the order passed by this Court conferred jurisdiction on the tribunal, however, we have observed, that the tribunal itself is having jurisdiction on account of any failure, if any, present on part of the officials of government for the required. It has been observed that the approach to the tribunal by a private person is no where specifically barred or restricted in the said Act. However, the denial of jurisdiction to the civil proceedings as described in the Sections 11 and 13 of the said Act provides the same. It cannot be said that in such circumstances where the jurisdiction is not available to the civil Court a private person is left without a forum and at the absolute mercy of the concerned officials despite their failure as ultimately the concerned officials are appointed to redress / provide redressed to his grievance as available in accordance with law. As such no bar is provided for a person to approach to a tribunal. In our understanding, the duty casted upon by the government officials in the first place requires them to exercise their powers as provided under Sections 3 and 4 of the said Act and where such exercise is not indulged into by the official respondents, the private person is not deprived to approach the subject tribunal under the said Act and it is for the tribunal to decide the dispute. As to the law itself the word "determination" is used i.e. determination of lease and licensee i.e. occupational rights is / are also to be determined by the tribunal. The word determination in the Black's Law Dictionary 7th Edition being a noun is described as: (1) a final decision by a Court or administrative agency, (2) the ending or expiration of an estate for interest in the property or of a right, however, or authority.

12. In the circumstances, we hold that the tribunal under the said Act is empowered to decide the question of possession, its terms, variation thereof and the availability of occupation which the government servant is required to manage and in case, the said management is not proper the private person having any adverse effected thereto may approach the tribunal under the said Act.

13. On having determined the foregoing, we had dismissed the petition in the matter with no order as to costs by way of our short order dated 08.09.2021 and these are the reasons for the same. ZH/S-76/Sindh Petition dismissed.