P L D 2021 Peshawar 166 (PLP)

ROOH UL AMIN KHAN, J.

Through this common judgment, this court proposes to decide the instant civil revision, filed by Tehsildar Mardan and others v. Asif Bacha and others and the following connected revision petitions, as in all the revision petitions, the petitioners have called in question the judgment/decree dated 20.2.2020 passed by learned Additional District Judge-II Mardan/Presiding Officer Encroachment Tribunal whereby the suit filed by the respondents for declaration and permanent injunction, fully detailed in the head note of the plaint, has been decreed. i. C.R. No. 755-P/2020 titled Tehsildar Mardan and others v. Arif Bacha and others. ii. C.R. No. 754-P/2020 titled Tehsildar Mardan and others v. Abdul Sattar. iii. C.R. No. 756-P/2020 titled Tehsildar Mardan and others v. Gul Sher and others. iv. C.R. No. 757-P/2020 titled Tehsildar Mardan and others v. Zahid Gul. v. C.R. No. 758-P/2020 titled Tehsildar Mardan and others v. Ajmal and others. vi. C.R. No. 759-P/2020 titled Tehsildar Mardan and others v. Sartaj. vii. C.R. No. 760-P/2020 titled Tehsildar Mardan and others v. Javed. viii. C.R. No. 761-P/2020 titled Tehsildar Mardan and others v. Shakir and others. ix. C.R. No. 762-P/2020 titled Tehsildar Mardan and others v. Asim Ali Shah. x. C.R. No. 763-P/2020 titled Tehsildar Mardan and others v. Zarshad. xi. C.R. No. 764-P/2020 titled Tehsildar Mardan and others v. Noorul Basar. xii. C.R. No. 784-P/2020 titled Tehsildar Mardan and others v. Said Anwar. xiii. C.R. No. 785-P/2020 titled Tehsildar Mardan and others v. Malik Khalid. xiv. C.R. No. 786-P/2020 titled Tehsildar Mardan and others v. Ubaid Ur Rehman. xv. C.R. No. 787-P/2020 titled Tehsildar Mardan and others v. Inayat Ur Rehman and others. xvi. C.R. No. 788-P/2020 titled Tehsildar Mardan and others v. Zahir Shah.

2. Petitioners have also impugned the order dated 28.9.2020, whereby review petition filed by them against the above said judgment was dismissed vide order dated 28.9.2020.

3. Facts of the case, giving rise to filing the instant as well as the connected civil revisions are that, petitioners instituted a suit for declaration and permanent injunction to the effect that, they are owners in possession of the land measuring 18 kanals 07 marlas bearing No. 1283 situated in the real estate of Mauza Allah Dad Khel, Par Hoti, District Mardan whereas the petitioner No.1 ( Tehsildar) Mardan served them with notices whereby they were directed to remove the superstructure over their properties. The respondents contested the suit by filing written statement. Learned trial Court framed the required issues from divergent pleadings of the parties. After recording pro and contra evidence of the parties, suits filed by the respondents were decreed and the notices issued by Tesildar were declared void ab-initio, as such were set aside vide judgment /decree dated 20.2.2020. Feeling aggrieved the petitioners filed review petitions before the Tribunal, but the same were dismissed vide judgment dated 28.9.2020. Against which the petitioners have preferred these revision petition.

4. Arguments heard and record gone through carefully.

5. It would be advantageous to mention that the suit filed by the petitioners before the tribunal was decided vide consolidated judgment dated 20.2.2020, whereas the instant as well as connected civil revisions have been filed on 21.11.2020 viz almost after nine months of the decision of the Tribunal which is not only badly time barred, but when learned AAG was confronted with the proposition, as to whether statute i.e. in case decided by the Tribunal under Khyber Pakhtunkhwa (Removal of Encroachment Act), 1977 any remedy of filing civil revision petition before the High Court can be availed by any party, particularly when provisions of Civil Procedure Code, 1908 are not applicable and if so, what would be the period for filing revision petition against the judgment of presiding officer of Tribunal, he could not wriggle out of the situation, however argued that where the revision petition is not competent, this court has ample power to convert it into writ petition. He while requesting for conversion of the civil revision into writ petition, vehemently argued that there is no time limit for challenging a void order.

6. No doubt proceedings of one kind be converted into another by this court to advance the cause of justice but it is also settled law that constitutional jurisdiction can never be involved as a substitute for the right of appeal. Writ jurisdiction of the High Court is extra ordinary jurisdiction and the same can be invoked only to meet the extra ordinary situation. In case in hand the lis between the parties has been decided by a special Tribunal constituted under section 12 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, which is vested with exclusive jurisdiction to adjudicate upon a dispute any property is not a public property. Any order passed by the Tribunal, which conclusively determined the rights of the parties with regard to any of the matter in controversy under the Act ibid shall be final and binding on the parties. The statute neither provide right of appeal nor of revision or review. In the circumstances, not only the instant and connected revision petitions are not competent but its conversion into writ petitions shall amount to defeat the intention of the legislature. The provisional Government has consciously legislated the Act by giving finality to the decision and judgment of the Tribunal and not providing any right of appeal, revision or review to any party. To convert these revisions into writ petitions or to permit their conversion for such purpose, by exercising the extra ordinary jurisdiction of this court under Article 199 of the Constitution, shall definitely circumvent the legislative intent and nullify the mandatory provisions of the Act ibid. I have no hesitation to hold that where a statute does not provide any right to a party to file appeal or revision before the High Court, the purpose is to give finality to the order passed under the Statute and in that situation, this court would not be justified in interfering with such an order in exercise of jurisdiction under Article 199 of the Constitution. Yet there is another aspect of the case that the High Court under constitutional jurisdiction cannot assume the power of appellate or revisional court, but has to see whether the Tribunal has jurisdiction to deal with the matter and if so, whether the impugned order is vitiated by procedural irregularities. In other words the court is concern not with the decision but with the decision making process.

7. In view of above discourse it can be safely held that the Act does not provide any right of filing of appeal or revision before this court, whereas the provisions of Civil Procedure Code, 1908 are not applicable to the proceedings under the Act 1977, as such all the revision petitions filed under section 115 Civil Procedure Code, 1908 are not maintainable, deserve dismissal. Likewise to permit the conversion of these revision petitions into writ petitions is to nullify the legislative intent of not providing revisionary power to the High Court, which is not permissible under the law.

8. Resultantly, the request of learned AAG for conversion of these revision petitions into writ petitions is repelled, consequently, this and the connected civil revision petitions stand dismissed being not maintainable. ZH/159/P Petitions dismisse