P L D 1993 Peshawar 53 (PLP)

ABDUL KARIM KHAN KUNDI, J.‑‑‑As stated at the bar, petitioner Nawabzada Hamidullah Khan and the other petitioners had first brought a suit for declaration as being owners in possession of the suit property and that Deputy Commissioner and Municipal Committee, D.I. Khan, had no concern whatsoever with the suit land owned by them and accordingly sought them to be restrained to lease out the suit land to any one. The Civil Court has returned the plaint for want of jurisdiction. Petitioners accepted the said orders of the Civil Court and accordingly brought a suit before a Tribunal in a District Judge under the N.‑W.F.P. Public Property (Removal of Encroachment) Act, 1977 (hereinafter to be called as the Act) also with added allegation that the suit property was not a public property. The learned Tribunal framed issues in the case and issues Nos. 4, 5 and 6 pertaining to his jurisdiction and if the suit property was or was not a public property were decided against the writ petitioners holding that the suit property was a public property and that he lacked the jurisdiction because there have not been initiated any proceedings with respect to the subject‑matter under the Act. Feeling aggrieved petitioners invoked the Constitutional jurisdiction of this Court in the matter.

2. At the very outset we referred the learned counsel for the petitioners to the statement of Nawabzada Hamidullah (P.W.3) recorded by the Tribunal wherein he admitted that Municipal Committee, D.I. Khan was in possession of the suit property for the last 25/30 years, however, he alleged their possession to be illegal. His witness Abdul Ghaffar (P.W.2) admitted that the suit property has been given on lease by the Municipal Committee ever since 1952 till the day. He further stated that in the year 1964 leasing of the suit property for and on behalf of the Municipal Committee was also recommended by Nawabzada Fatehullah Khan, predecessor of some of the petitioners. Thus on factual plane there has emerged out an admitted position that the suit property has been in the possession, management and control of Municipal Committee, D.I. Khan ever since 1952 till the day. "Public property" has been defined in the Act to mean a building, land, place or premises, which vests in, or is in the possession or under the management or control of Government, Local Council, autonomous body, or such other authority. Under section 13 of the Act there has been vested an exclusive jurisdiction in the Tribunal to adjudicate upon a dispute that any property is not a public property. Petitioners' suit before the Tribunal in the District Judge sought a declaration that the suit property was not a public property. The Tribunal has thus the exclusive jurisdiction in the matter who, in view of the evidence on record, has rightly held that the suit property was a public property and he could not, therefore, grant a declaration to the petitioners to the contrary. The Tribunal may have said that he lacked the jurisdiction since there have not been initiated proceedings by the Municipal Committee or Deputy Commissioner under the Act but since there vested an exclusive jurisdiction in the Tribunal in the District Judge under the Act that the suit property was not a public property, hence the Tribunal has the jurisdiction to adjudicate upon the matter and he has accordingly exercised his jurisdiction holding that the suit property was a public property. As such there cannot be taken any exception to the judgment and order of the Tribunal to the extent of his having held the suit property to be a public property. Consequently, we have found no merit in this writ petition and the same is, therefore, dismissed with costs, fixing the pleader's fee in the sum of Rs.2,

000. A.A./1419/P Petition dismissed