1990 MLD 815 (PLP)

7. The learned Tribunal in arriving at the decision that it lacked jurisdiction has placed reliance on a judgment of the Sindh High Court in Syed Weedhal Shah and another v. Province of Sindh and another ( P L D 1978 Kar P. 464) under Sindh Public Property (Removal of Encroachment) Act (V of 1975). The provisions of Act V of 1977 and those of N.-W.F.P. Public Property (Removal of Encroachment) Act, 1975, relevant in the context of the present controversy, are identical. Needless to say that all disputes of civil nature are to be adjudicated upon by a civil Court as provided under section 9 of the Civil Procedure Code irrespective of the fact whether such dispute is with regard to private or public property or between the State and its citizen unless a special Statute specifically ousts the jurisdiction of civil Court. Furthermore, ouster clause in a special Statute shall be strictly construed and shall not be given liberal meaning so as to usurp power of the ordinary civil Court. Keeping in view these cardinal principles in mind, the N: W.F.P. Public Property (Removal of Encroachment) Act, (Act V of 1977) being a special Statute whenever a question of jurisdiction of a Court or Tribunal is raised the ouster clause in the special Statute shall be interpreted in the line with the scheme of the Act. The preamble of the Act clearly provides the purpose and the spirit underlining the enactment which in unambiguous words is the removal of encroachment over public property through a special machinery in a speedy manner. While raising an objection to the jurisdiction of the ordinary Civil Court in a case like the present one, there must be made a positive assertion that the property in dispute is public property and that it has been encroached upon or that the public property was under the lease or licence which has been terminated or withdrawn. That the machinery provided under the Act has been set in motion for removal of such encroachment. When both these conditions are proved to the satisfaction of the Court to exist, then the Civil Court would have no jurisdiction in the matter for removal of encroachment and for matters ancillary thereto. In such a case an aggrieved person has to appeal the Tribunal for his redress. 8. "Encroachment" and "Public Property" both have been defined in section 2(c) and (h), of the Act which are as follows:-- "Encroachment" Means unauthorised occupation, temporary or permanent, of public property. "Public Property' means 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. There may be a suit in a Civil Court in which a dispute is raised directly or indirectly that the property is or is not public property but that by itself would not oust the jurisdiction of the ordinary civil Court in giving its decision on it unless the suit is with regard to the determination of the character of the suit property in proceedings initiated against the plaintiff for removal of encroachment over it. When removal of encroachment is required through the machinery provided in the special law the question of ouster of jurisdiction of the civil Court would become relevant. Section 3 of the Act visualises a situation when public property is encroached upon and for its removal notice is duly served in writing on a person directing him to vacate such property and to remove the structure, if any, raised by him. Section 4 further provides that the person served with a notice has to prefer a review petition before the Government or any Authority or Officer who has made such order while section 5 pry for entry upon such property (encroached property) on the rejection of the review petition while rest of the sections deal with the use of force, recovery of penalty and punishment. Section 11 which is with regard to bar of jurisdiction and abatement of suit and section 13 which provides for exclusive jurisdiction of the Tribunal are relevant for the purpose of the present controversy and are reproduced as follows:‑‑ 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 a public property, or that any lease or licence in respect of such public property has not been determined for the purpose of this Act, or any done or intended or purported to be done under this Act. (2) All suits, apes 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: Section 13 "A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purpose of this Act." Both these sections of law, as already pointed out are identical with section 11 and 13 of Sindh Public Property (Removal of Encroachment) Act 1975. In several reported judgments from the Sindh High Court these two sections came for consideration and it would be advantageous to refer to some of them, these being helpful for the decision of the present petition. In Karachi Municipal Corporation v. Ali Hussain P L D 19'76 Kar.995, under the earned Judge dealing with the question of jurisdiction observed as "Since section 11 provides for ouster of jurisdiction of the Civil Court it had to be strictly construed. Clause (c) of section 2 of the Act defines "Encroachment" to mean unauthorised occupation of or undue interference with public property. For an appeal to abate it must relate‑‑‑ (i) to encroachment or in other words, to unauthorised occupation of public property, and (ii) to dispute that any property is not a public property, or that any lease or licence in respect of such property has not been determined. If appeal does not relate to encroachment and to a dispute of the above nature, it will obviously not abate and can remain in the ordinary Courts for decision. Now the question is whether the present appeal satisfies the above conditions. As stated above the facts of this case show that the appeal does not relate to encroachment as there is, so far, no question of unauthorised occupation of public property. For it is the case of the appellant that the respondent is the licensee in respect of the property and only a notice was issued to him to show cause why the licence should not be cancelled. The question of unauthorised occupation would only arise when the licence is cancelled or revoked or the lease is determined. Also the appeal does not relate to a dispute that the licence has not been determined. The only dispute, at this stage, between the parties is whether the agreement between the parties constitutes a lease or licence. Therefore, none of the two conditions prescribed in subsection (2) of section 11 of the Act exists in this case. The dispute in this appeal, therefore, does not fall within the ambit of that section and the appeal has not abated. If and when the appellant terminates the lease or licence of the respondent, any dispute raised by the respondent may be a matter for the Tribunal to decide." In Syed Weedhal Shah and 8 others v. Province of Sindh and another (P L D 1978 Kar. P. 464), their Lordships held as follows:‑‑ "It will be noticed that under the Ordinance the bar to the Civil Courts' jurisdiction did not extend to adjudication by the Civil Courts upon the dispute that property is not public property and to my mind subsection (2) of section 11 was intended to abate such suits allowed by the Ordinance following the proceedings for removal of encroachment or eviction under the Ordinance. Again, under section 13 of the Act the Tribunal has been given exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property "for the purpose of the Act". In other words the exclusive jurisdiction of the Tribunal to determine this question would be when such a question arises in the proceedings contemplated by the Act and not independently of it. The bar to the jurisdiction of the Courts' even if we were to assume that it was broadly worded, must in its application be limited to the object in view before the Legislature and the subject‑matter of the enactment. Our conclusion, therefore, is that the petitioners' suit was not barred under sections 11 and 13 of the said Act for the question whether or not the subject land was public property arose not in relation to the Act or any proceedings thereunder but independently of it. The petitioners' plaint was, therefore, wrongly rejected under Order VII, rule 11 C.P.C." Similar question came for consideration in Mst. Siddiqa Begum and others v. Karachi Development Authority (P L D 1965 Kar. 312). The case of the applicant in the suit was that although initially they were not authorised occupants of the property in suit but by virtue of Regulation 190 passed by the Governing Body of the KD.A. it was decided to regularise their unauthorised possession on recovery of the stipulated cost of land and petty. The occupants brought a suit and claimed a right to retain possession of the property in question as authorised occupants in terms of the aforesaid resolutions which were sought to be enforced through the suit filed by them. On the objection that the suit had abated under section 11 of the Act his Lordship held as follows:‑‑ "In my view, therefore, the suit as framed did not fall within the mischief of section 11(2) of the Sindh Public Property (Removal of Encroachment) Act, 1975 which provides for abatement of suit "reto encroachment and dispute that any property is not a public property or, that any lease or licence in respect of such property has not been determined"." It was further held:‑‑ "I find that in this case, where the adjudication called for in deciding the suit falls beyond the limited question transferred to the exclusive jurisdiction of the Tribunal, the general jurisdiction vesting in the Civil Court remains unaffected." For the reasons stated above and in view of the consensus of opinion expressed in the judgments cited we are inclined to hold that the question involved in the present case, as can be spelt out from the plaint filed before the Tribunal does not fall within the purview of section 13 of the Act. The learned Tribunal was therefore, perfectly justified under the law in holding that it lacked jurisdiction in the matter. Withdrawal of the revision petition from the High Court, and in consequence of the suit from the civil Court in the circumstances was apparently misconceived. We hold that the plaintiffs suit is triable by the civil Court. The petitioner having withdrawn their earlier suit can therefore, approach civil Court for seeking appropriate remedy which is available to them under the law. We may also observe that if injunction is not a proper remedy to be granted to the plaintiff then the Court has ample power to grant any other relief prayed for and available to aggrieved person in circumstances of the case. This writ petition is, therefore, disposed of accordingly. There shall, however, be no order as to costs. M.B.A./960/P Order accordingly.