Forcible dispossession

2022 PCrLJN 14 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 3 & 4Illegal dispossessionPre-requisiteForcible dispossessionScope

Complainant claimed ownership on the basis of sale agreement, allotment order and possession order issued by the Housing Society and stated that his son, who was also his attorney, came to the city and found the respondents in occupation of the property

Trial Court dismissed the complaint, inter alia, on the ground that on the basis of utility bills and the statement of neighbourer, respondent seemed to be in possession of the property since 2002

Validity

Basic ingredients for setting into motion the provisions of Illegal Dispossession Act, 2005 were lacking in the present case as it was not the case of complainant that he was in possession of the property and that the respondents on certain date and specific time illegally entered the property in question and forcibly or illegally dispossessed him therefrom

Respondents had been in possession of the premises for a considerable period which was even admitted by the complainant by stating that due to non-payment of utility bills by respondents their gas and electricity connections were disconnected

Nowhere in the entire complaint, complainant had alleged his illegal or forcible dispossession at the hand of respondents

Application, being meritless, was dismissed.

2022 PCrLJN 14 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 3 & 4Illegal dispossessionPre-requisiteForcible dispossessionScope

Scope of Illegal Dispossession Act, 2005 is very limited and the Court, exercising powers under S. 3 of the Act, is supposed to determine merely the fact as to who was in actual physical possession of the property before filing of the complaint and whether the complainant was dispossessed in an illegal and unlawful manner by the persons arrayed as accused/opponent in such complaint

Court is not competent to give any findings with regard to the title or ownership or, for that matter, in respect of authenticity/genuineness of a document.

2019 YLR 2623 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Arts. 10-A & 24Constitutional petitionProperty rightsDue process of lawNatural justice, principles ofForcible dispossession

Petitioners claimed to be owner of subject land and were aggrieved of orders passed by authorities whereby they were forcibly dispossessed from subject land

Validity

Adverse action was taken by authorities against petitioners without affording opportunity of hearing to them

Petitioners were not only entitled to get back possession of property in question but were also deserved to be permitted to again raise construction of demolished boundary wall at subject land

Action of dispossession of petitioners by authorities and demolishing boundary wall raised by them was not only illegal but was taken at instigation of respondents

Order passed by authorities was without justification, mala fide and void ab initio

Stand of respondent regarding ownership and/or location of survey number where subject land was situated was not only self-conflicting but also self-destructive

Such stand led to a presumption that respondent had no genuine case

High Court in exercise of Constitutional jurisdiction set aside orders passed by authorities and declared that all such actions taken/orders passed by authorities pursuant to such orders were mala fide, illegal without jurisdiction and of no legal effect

High Court directed the authorities to give peaceful possession of subject land to petitioners

Constitutional petition was allowed accordingly.

2012 CLC 1236 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 124 (2), 195 & Sixth Schedule, item 64Punjab Local Council (Property) Rules, 2003, Rr. 9 (2) (e), 16 (c) & 18Punjab Local Councils (Contract) Rules, 1981, R.4Constitution of Pakistan, Arts.4, 10-A, 18, 23 & 199LeaseEnhancement of rentForcible dispossession

Grievance of petitioners was that there had been a valid lease of plot in question in their favour since 1961, but Tehsil Municipal Administration forcibly dispossessed them from plot in question

Plea raised by authorities was that lease in question was executed in violation of the provisions of Punjab Local Council (Property) Rules, 2003 and petitioners were not paying rent according the market rate which had made out a case for enhancement of rent against the petitioners

Validity

Petitioners were entitled to a "reasonable notice" for enhancement of rent (variation in the terms of the lease) and in the case of their non-acceptability, for cancellation of their lease

Authorities had woken up (it is not clear whether TMA woke up on its own motion or was driven by some other vested interest) from a long slumber with a shuddering realization to immediately protect and safeguard interest of Tehsil Municipal Administration and public exchequer but in their overzealousness, insensitively trampled upon due process and rule of law guaranteed to the petitioners under the Constitution

Tehsil Municipal Administration had offended fundamental and constitutional rights of petitioners, bypassing the process provided under section 195 and the schedule to Punjab Local Government Ordinance, 2001, and violating the protections guaranteed under Articles 4, 10A, 18 and 23 of the Constitution

Rushing directly to auction leasehold rights without giving notice to existing tenants i.e. petitioners, in terms of the Schedule (which enjoyed higher legislative status than the Rules), was unabashedly unconstitutional and a blatant violation of Punjab Local Government Ordinance, 2001

Initiation of auction proceedings and resulting auction was in violation of Punjab Local Council (Property) Rules, 2003

High Court, in exercise of Constitutional jurisdiction declared such auction to be illegal and set aside the same

Petition was allowed accordingly.