2016 PLP 194 (YLRN)

Ss. 11, 4, 3, 12 & 13

Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Rules, 1981, R. 3

Civil Procedure Code (V of 1908), O. VII, R. 10

Specific Relief Act (I of 1877), S.42

Suit for declaration

Notice for removal of encroachment

Bar on jurisdiction of civil court

Plaint, return of

Scope

Notice was issued to the plaintiff for removal of encroachment

Contention of plaintiff was that said notice was illegal, unlawful and inoperative on her rights and was liable to be cancelled

Suit was partially decreed by the Trial Court subject to self-removal of encroachment but Appellate Court returned the plaint for presentation before proper forum

Validity

Trial Court while granting partial decree directed the plaintiff to remove encroachment and in case of failure empowered the defendants to remove such encroachment on her expenses

Plaintiff had not removed the encroachment within the specified time

Once encroachment was proved then there was no element of mala fide in the order for removal of encroachment

Civil court could not assume jurisdiction in view of bar on jurisdiction contained in S.11 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977

No illegality or legal infirmity was pointed out in the impugned judgment and decree passed by the Appellate Court

Revision was dismissed in circumstances. [Paras. 11 and 12 of the judgment] PLD 1988 Pesh. 158; PLD 2010 Pesh. 99; PLD 1997 SC 3; 1974 SCMR 356; 2008 CLC 1462 and 2009 CLC 659 ref. JUDGMENT QALANDAR ALI KHAN, J.

This revision petition under section 115, C.P.C. by Dr. Saira Shah daughter of Dr. Firoz Shah, petitioner, is directed against the judgment and decree of learned Additional District Judge-XII, Peshawar, dated 21.3.2015, whereby, appeal of respondents Nos. 1 to 3 was accepted and plaint was returned to the petitioner for want of jurisdiction to be presented before the proper forum. The petitioner prayed for setting aside the impugned judgment and decree and restoration of the judgment and decree of the learned Trial Court.

2. The petitioner/plaintiff had instituted a suit for declaration to the effect that impugned notice dated 27.3.2010, issued by Assistant Director, Building Control Agency, Peshawar Development Authority, was illegal, unlawful, not sustainable and inoperative on the rights of petitioner/plaintiff and was liable to be cancelled and set aside. In the plaint, prayer for perpetual and mandatory injunction was made, thereby, restraining the respondents/defendants from taking any action against the building/Doctor hospital of the petitioner/plaintiff on the pretext of widening of Jamrud Road, Peshawar. In her suit, the petitioner/plaintiff claimed ownership of Saira Surgical Hospital, presently known as 'Doctor Hospital', situated at main Jamrud Road, Taj Abad Chowk, Peshawar, which was constructed by her father on the land measuring 2 Kanal and 2 marla in 1985 after getting proper approval/permission from High Way Division, Peshawar Development Authority and Building Control Agency. According to the petitioner/plaintiff, the building was constructed according to the map duly approved by Building Control Agency, after site was properly inspected by all concerned and that the construction was started at a distance of more than 220 feet from the central line of the road. She alleged that the electric polls and transformers installed adjacent to the wall of the hospital indicated that the building/hospital was at a distance of more than 220 feet from central line of the road. The petitioner/plaintiff, therefore, assailed the impugned notice on the ground that no encroachment was made by petitioner/plaintiff.

3. The suit was resisted by the respondents/defendants who raised several objections, including objection with regard to the jurisdiction of Civil Court which was barred under NWFP Public Property (Removal of Encroachment) Act, 1977. The respondents/defendants pointed out that according to the approval dated 13.9.1982, the petitioner/plaintiff was required to construct the building/property at a distance of 116 feet from the central line of the road and further that the petitioner/plaintiff agreed to remove all structures lying within 220 feet from the central line; but, to the contrary, the building/hospital was hardly at a distance of 69 feet at eastern side and 77 feet at western corner away from the central line, hence encroachment by the petitioner/plaintiff upon public property. It was also claimed by the respondents/ defendants that as per approved Right of Way (ROW) record of C&W Department since 1933, the maximum width of total Jamrud Road was 200 feet with a minimum of 166 feet.

4. The pleadings of the parties were reduced to as many as 8 issues, and after recording evidence of the parties, the learned Trial Court/Civil Judge-I, Peshawar, partially decreed the suit vide judgment dated 12.5.2014, while 'discarding' the impugned notice for removal of encroachment dated 27.3.2010 being against the facts and law subject to self removal of 4 feet encroachment at the side of entry gate of the building and 2 feet encroachment on western side within two months of the issuance of this order; failing which will empower the defendants to remove such encroachment by themselves on expenses of plaintiff. Aggrieved of the judgment and decree of the learned trial Court, the respondents preferred appeal, which was accepted and plaint was returned to the petitioner/appellant for want of jurisdiction to be presented before the proper forum, vide impugned judgment/order of the learned Appellate Court/Additional District Judge-XII, Peshawar dated 21.3.2015; hence the instant revision petition.

5. Arguments of the learned counsel for the parties heard, and record perused.

6. At the outset, the learned counsel for the petitioner stated that respondent No.4, Executive Engineer High Way Division, was not a necessary party, therefore, requested for deletion of respondent No.4, which is deleted accordingly.

7. The learned counsel for the petitioner next argued that (i) impugned notice dated 27.3.2010 was not issued by an authorized person; (ii) no description of encroachment was given in the impugned notice; (iii) no opportunity of hearing was afforded to the petitioner; and (iv) the impugned notice was based on mala fide. In support of his contentions, the learned counsel referred to PLD 1988 Peshawar 158, PLD 2010 Peshawar 99, PLD 1997 Supreme Court 3, 1974 SCMR 356, 2008 CLC 1462 and 2009 CLC 659.

8. The learned counsel for the respondents, on the other hand, forcefully defended the impugned order of the learned Appellate Court/Additional District Judge-XII, Peshawar dated 21.3.2015 whereby plaint was returned for want of jurisdiction, while referring to section 9, C.P.C., sections 3, 4, 11, 12 and 13 of the NWFP Public Property (Removal of Encroachment) Act 1977 (herein after referred to as 'Act 1977') and Rule 3 of the NWFP Public Property (Removal of Encroachments) Rules, 1981.

9. In order to properly appreciate the legal questions involved in the revision petition, it would be appropriate to reproduce the relevant provisions of law. Section 9, C.P.C. Courts to try all civil suits unless barred:- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Sections 3, 4, 11, 12 and 13 of the NWFP Public Property Removal of Encroachment) Act 1977: Section 3 (1) if Government, or any authority or officer authorized by the Government in this behalf, is satisfied that any person is unauthorized occupant, it or he may, by order in writing, direct such person to vacate the public property and to remove the structure, 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. (2) The order under subsection (i) 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. Section 4. (1) Any person aggrieved by an order made under section 3 may within seven days of the service thereof, prefer a review petition to Government or any authority or officer who has made such order. (2) Government or, as the case may be, the authority or officer as aforesaid, may, after considering the review petition filed under subsection (1) and after giving the petitioner or his duly authorized agent an opportunity of being heard, confirm, modify or vacate the order. Section 11(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 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 or purported to be done under this Act; (2) All suits, appeal and applications relating to encroachment or disputes referred to in subsection (1) and pending in any Court shall abate on the 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, 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. Section 12: (1) Government may, by notification in the official Gazette constitute a Tribunal and specify the area in which such Tribunal shall exercise its jurisdiction. (2) The Tribunal constituted under subsection (1) shall consist of a District Judge, or Additional District Judge, or District Magistrate, or Additional District Magistrate with experience of not less than three years as such Magistrate, as Government may appoint. Section 13: A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not public property or that any lease or license in respect of such property has not been determined for the purpose of this Act. Rule 3 of the NWFP Public Property (Removal of Encroachment), Rules 1981. Contents of order under section 3:- An order under section 3 shall as far as possible. (a) Contain the description of the public property which has been encroached upon by giving survey number, plot number, meter bound, etc, or any other description to identify the property. (b) The nature of the encroachment required to be removed.

10. It would thus be seen that section 11 expressly bars jurisdiction of Civil Court to entertain any proceedings, grant any injunction or to make any order in relation to a dispute that any property is not a public property or anything done or intended or purported to be done under the Act. The Act authorizes the Government or any Authority or Officer authorized by the Government to pass an order directing an unauthorized occupant to vacate the public property and to remove the structure, if any raised by him on the public property. Section 4 of Act 1977 makes a provision for review by the person aggrieved within seven days of the service of the order under section 3 of the Act and that review petition is to be preferred to Government or any Authority or Officer who made such order. It may be pointed out that barring section 11 of Act 1977 is followed by section 12, providing for constitution of a Tribunal consisting of a District Judge or Additional District Judge or District Magistrate or Additional District Magistrate with exclusive jurisdiction under section 13 of Act, 1977 to adjudicate upon a dispute that any property is not a public property.

11. In her suit, the petitioner/plaintiff had neither raised any objection with regard to issuance of the impugned notice by an unauthorized person nor denial of opportunity of hearing to her was alleged following the impugned notice for removal of encroachment. She also failed to show that the issuance of notice by a specified person was the mandatory requirement of law or description of encroachment was essentially required in the notice for removal of encroachment; while, on the other hand, there is nothing on record to show that petitioner/plaintiff preferred review petition within 7 days of the receipt of order/notice for removal of encroachment under section 3 of Act 1977. Moreover, the provision of Rule 3 of NWFP Public Property (Removal of Encroachment) Rules, 1981, lays down that an order under Section 3 of the Act shall contain description of the public property encroached upon as far as possible. It may not be out of place to point out here that even the Trial Court/Civil Judge-I, Peshawar, while granting partial decree in favour of the petitioner/plaintiff directed removal of encroachment on 2 sides of the building and in case of her failure, empowering the defendants to remove such encroachment by themselves on the expense of the plaintiff/petitioner. The petitioner/ plaintiff did not prefer appeal against the judgment and decree dated 12.5.2014 of the learned Trial Court/Civil Judge-I, Peshawar, neither the encroachment was removed by her within the specified time. Anyhow, once encroachment was proved even before the Trial Court, there could be no element of mala fide in the order for removal of encroachment as the order was made for the purpose of widening of the Jamrud Road, and the Civil Court could not assume the jurisdiction, in view of bar on jurisdiction of the Civil Court contained in section 11 of Act 1977. Needless to say that the learned counsel for the petitioner could not show that provision of law under which he could not raise the questions, raised before this Court in the revisional jurisdiction, before the Tribunal constituted under section 12 of Act, 1977.

12. As such, no illegality or legal infirmity was pointed out in the impugned judgment and decree of the learned Appellate Court/Additional District Judge-XII, Peshawar dated 21.3.2015, calling for interference by this Court in its revisional jurisdiction under section 115, C.P.C. The revision petition is, therefore, dismissed. ZC/162/P Revision dismissed.