P L D 2006 Supreme Court 350 (PLP)

MUHAMMAD NAWAZ ABBASI J.

These two connected petitions under Article 185(3) of Constitution have been directed against the judgment dated 9-2-2005 passed by the Peshawar High Court, Abbottabad Bench, whereby the constitution petition filed by the present petitioner questioning the legality of judgment dated 2-7-2001 passed by learned District Judge exercising the power of Tribunal constituted under Public Property (Removal of Encroachment Act), NWFP 1977 was dismissed.

2. The relevant facts in the background giving rise to these petitions are that property subject matter of the dispute, (shops) is situated within the premises of Empire Cinema, Abbottabad, was a leased property and late Sh. Jamil Ahmed, predecessor-in-interest of Sh. Zahoor and others, (present petitioners) purchased the property (shops) in auction held in execution of a decree passed by Senior Civil Judge, Abbottabad in 1966. The suit property was mortgaged by Mian Yameen ul Haq, the original lessee, in favour of one Muhammad Ashraf, who by way of filing of a suit, challenged the auction but the suit was dismissed and the judgment of court of first instance was further upheld by the High Court in appeal. The Municipal Committee, Abbottabad, in the ejectment proceedings initiated by the petitioners against a tenant, denied his title in the property but the Rent Controller having treated the petitioner as owner of the property (shops) held him landlord of the shops and rejected the claim of the tenant as well as that of the Municipal Committee, Abbottabad. In consequence thereto, the Municipal Committee having acknowledged the title of petitioner, approved the site plan submitted by him in 1982 for reconstruction of the shops and he accordingly, reconstructed the shops. The property being of evacuee character, was on lease with the judgment debtor, who had further mortgaged it with a third person and on expiry of original lessee in 1986, Municipal Committee, Abbottabad, issued notice to the petitioner under section 3 of NWFP Public Property (Removal of Encroachment) Act, 1977 (hereinafter called the Ordinance) whereupon, he filed a suit in the court of District Judge, Abbottabad exercising the power of Tribunal constituted under the Ordinance, wherein a declaration was sought to the effect that petitioner having purchased the property in court auction, was its lawful owner and was not an unauthorized occupant. The suit was dismissed by the Tribunal vide judgment dated 2-7-2001 and further in the constitutional petition filed by the petitioner, this judgment was maintained by the High Court.

3. The learned counsel for the petitioner has contended that the property was purchased by the petitioner in an open auction held in execution of decree and notwithstanding any defect in the title of the original owner, he being a bona-fide purchaser was lawful owner of the shops and could not be considered as an unauthorized occupant in terms of section 3 of the Ordinance but the Tribunal as well as the High Court through misconception of law, held him unauthorized occupant.

4. The learned counsel for the Administrator, Municipal Committee, Abbottabad, respondent herein, has contended that the claim of the petitioner regarding ownership of the property was without any substance, as the property was on lease with the judgment debtor, therefore, the title of the auction purchaser would be confined only to the extent of the lease hold rights and in any case, the question regarding the title of property has already been settled by this Court in the earlier round of litigation between the parties. The learned counsel for the petitioner to the contrary claimed exclusive ownership in the suit property with the assertion that the shops and the premises of Empire Cinema were two independent properties and the shops were not included in the lease in question.

5. This Court in Civil Appeal No.1655 of 1997 arising out of the dispute regarding the title of the property, between the original lessee and the Municipal Committee, Abbottabad, having determined the character and status of the shops as part of the premises of Empire Cinema, held that the entire property belonged to Municipal Committee, Abbottabad. In view thereof, the matter relating to the dispute of title A and ownership of the disputed shops having attained finality, was a past and closed transaction which could not be reopened. Consequently, the concurrent finding of the two courts regarding the origin and the character of property would not call for interference of this court, in the present petition (C.P. 1758 of 2005). In the light of the above legal and factual position, we have not been able to find out any substance in the contention raised by the learned counsel for the petitioner in support of this petition for grant of leave.

6. The Administrator, Municipal Committee Abbottabad being aggrieved of the order of High Court relating to the grant of compensation to the respondent for construction of shops, has filed the connected petition bearing number 1759 of 2005. The learned counsel for the petitioner in this petition, has contended that the respondent was not entitled to the compensation for the construction of shops as he has regularly been receiving the rent of the shops even after expiry of the original lease and was adequately compensated. This is an admitted fact that the shops were reconstructed by the respondent in 1982 with the permission of petitioner and even after expiry of the original lease in B 1986, the petitioner without treating him as an unauthorized occupant, allowed him to retain the possession as landlord of the shops till issue of notice under section 3 of the ibid Act in 1996. In any case, the status of the respondent would be recognized in law as licensee and he would have legitimate claim of the compensation for the construction raised by him with the permission of Municipal Committee.

7. In the light of the foregoing discussion, we do not find any substance in these petitions and the same are accordingly dismissed. Leave is refused in both the petitions. M.H./J-5/S?????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.