Jalal Akmal vs Asj.etc.

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.12074/2013

Jalal Akmal etc. Versus A.S.J. etc.

S. No. of order/ Date of order/ Order with signature of Judge and that of Proceedings Proceedings Parties, counsel, where necessary

1.16.5.2013 Ch. Muhammad Latif Khan Sira, Advocate for the petitioner.

Through the instant petition, the petitioner has challenged the legality of order dated 13.4.2013 passed by the learned Addl. Sessions Judge, Kasur whereby private complaint of the petitioners filed under section 5 of the Illegal Dispossession Act, 2005 was dismissed.

2.The facts leading to the filing of this writ petition are that the petitioners filed complaint under section 5 of the Illegal Dispossession Act, 2005 against respondents No.2 to 12, the detail whereof has been given in the complaint filed by the present petitioners in para No.1 and 2 by stating that they had been dispossessed from their agri cultural land unlawfully and they also took possession of the land in dispute. The complainants also tried for reconciliation with respondents No.2 to 12 through Punchiat but respondents No.2 to 12 extended threats with dire consequences. Said respondents No.2 to 12 also refused to return possession to the petitioners/complainants’, therefore, they filed private complaint under section 5 of the Illegal Dispossession Act,

3.Notice in the private complaint was issued to SHO- respondent No.13; inquiry was conducted by the SHO on the direction of the Court and report was submitted before the

Court which is available on the file and after hearing the arguments of the learned counsel for the complainants on the question of maintainability, the complaint was dismissed by the learned Addl. Sessions Judge vide the impugned order dated 13.4.2013, hence this petition.

4.Learned counsel for the petitioners/complainants contends that the petitioners purchased land measuring 96 Kanals 16 Marlas situated at Ferozepur Road near Bungalow Kamboh Khan, Kasur. Reliance has been placed on the case reported as (2009 SCMR 1066) wherein it has been observed by the Apex Court that the complainant/petitioners have only to show that they were the lawful owners and it is not binding upon present petitioners to prove possession over the property. Halqa Patwari has submitted the report in favour of the petitioners but the learned Addl. Sessions Judge did not consider the same and ignored rights of the petitioners. Adds that SHO/respondent No.13 prepared report in league with the respondents No. 2 to 12 over the petitioners’ property land and as such the impugned order dated 13.4.2013 is liable to be set aside.

5.I have heard the learned counsel for the petitioners and carefully gone through the material available on the record.

6.Admittedly, the petitioners had not mentioned anywhere in the private complaint that after purchase of land they were in exclusive possession of the agricultural land. In their complaint, the petitioners had made juristic person as one of the respondent i.e. respondent No.1 as no criminal proceedings can be carried out against juristic person without impleading its Director etc. In the complaint the petitioners have not asserted that they were dispossessed forcibly. The very intention of the illegal Dispossession Act 2005 is to provide

remedies to the persons, who have been illegally and forcibly dispossessed by a group of persons who have having antecedents. It is settled law that a complaint under the Illegal Dispossession Act 2005 cannot be entertained where the mater of possession of the relevant property is being regulated by a civil or revenue court. The Illegal Dispossession Act is not applicable where dispute over possession of immoveable properties is between co-owners, co-sharers or relates to revenue proceedings; to dispute related to consolidation proceedings etc and it is also held by the Hon’ble Supreme Court of Pakistan that Illegal Dispossession Act 2005 was applicable only to those persons who had credentials and antecedents of Qabza Group and are involved in illegal activities and belongs to a gang of land grabbers or land Mafia. Reliance has been placed on the case reported Habib Ullah v. Abdul Manan (2012 SCMR 1533) and Mubashar Ahmad v. The State (PLD 2010 SC 605).

“The Illegal Dispossession Act, 2005 had been inducted into criminal law for the intruders called “property grabbers” or “land mafia” whose primary chore or errand is to illegally or forcibly take possession of immoveable properties belonging to other persons by way of utilizing force. The contents and objectives of the Act attract only upon the above-narrated persons and the same do not apply on the persons who have no credentials or antecedents of being property grabbers or being member of a Qabza Group or land mafia.”

7.Learned counsel for the petitioners admitted that respondents No.2 to 12 were already occupants of the property

as they themselves admitted in his grounds of writ petition. The report submitted by the SHO respondent No.13 reflects that complete inquiry was conducted by him and he joined the complainant as well as the respondents and get recorded statements of concerned persons and after doing needful he prepared site report and the said report reflects that juristic person respondent No.2 purchased the land and is owner in possession of the said property since 2003 as stated by Muzaffar Shah from whom the said property was purchased by respondent No.2 and rest of the property is under dispute as proceedings of consolidation was held in the year 1969 and thereafter dispute regarding consolidation proceedings were arises and matter was referred to Member Consolidation and said appeal was admitted on 10.1.1969 and till now the matters are subjudice before the revenue courts. It seems that the present petitioners want to settle their revenue disputes through private complaint. From perusal of the above said facts, it is found that Illegal Dispossession Act is only applicable where possession has been taken through force, secondly they have been dispossessed without due course of law and such persons belongs to group of land grabbers. The petitioners want to convert their civil and revenue dispute into criminal and the same cannot be allowed by misusing the provisions of The Illegal Dispossession Act, 2005. The present dispute was purely of civil and revenue in nature and the complainant could avail their remedy before the concerned court of competent jurisdiction. The complainant had not mentioned in his complaint as to when they were dispossessed. Neither had they given Khasra Girdawari of the disputed land or any revenue record to show their possession over the disputed land at the time of dispossession. Meaning thereby they had not specifically shown their possession over the property nor time and date of dispossession was mentioned

in their complaint. The complainant has failed to make out a case falling within the purview of Illegal Dispossession Act 2005. The learned counsel for the petitioner has failed to point out any infirmity legal or factual in the impugned order dated 13.4.2013 which would justify interference.

8.For what has been discussed above, I feel no hesitation in holding that the instant petition is devoid of force which is hereby dismissed in limine.

(Aalia Neelum) Judge Approved for reporting

Judge Hamid /*