with IR Sahibzada Muhammad Arif Vs Superintendent Engineer Irrigation Mardan and others

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JUDGMENT SHEET

PESHAWAR HIGH COURT. PESHAWAR

JUDICIAL DEPARTMENT

w .P 730-P of 2022 IR Sahibzada Muhammad Arif Vs.

Superintendent Engineer lrrigation Mardan and others.

Date of hearing 04.02.2025.

Petitioner(s) by: Muhammad Saeed and S.M Ilyas, Advocates.

Respondent(s) by: Arbab Fakhre AIam Khan, AAG along with Baddar Muhammad Khan, Deputy Collector Mardtrr Irrigation Department.

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JUDGMENT

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SADIO ALI. J. This writ petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan (hereinafter to o'Constitution") is in be referred as the form of

writ of certiorari seeking annulment of the order dated 09.06 .2022 passed by the learned Additional District Judge-II, Marddn, 1973, with the following prayer: -

d "It is, therefoFe, most humbly prayed that on acceptance of this writ petition, the order and judgment of Lower Court dated 09.06.2022 moy pleose be set aside; and the case may please be decreed in favour of the petitioner against the respondents os proyed for ony other relief deemed Jit may please be graciously gronted in favour of the petitioneF."

2.In essence, the petitioner filed suit for declaration, wherein, he challenged the notice given to him by the respondent (Irrigation

v Department) under Section 3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977) (hereinafter to be referred as "Act of 1977") on the ground that he has committed encroachment in public property by making construction ofhouse/shops within the area of irrigation canal bearing Khasra No.l012 of Moza Bagh-e-Irum, Mardan. The petitioner filed a suit against them and claimed that his house and shops measuring 30 Marlas are situated in property in Khasra No.1039 purchased by him vide mutation No.457l dated29.04.2003, therefore, there was no any encroachment made by him in any public property and that the action and notice issued against him by the respondent about encroachment was wrong and illegal. Thus, on the basis of such claim and d assertion, he sought for declaration to that effect against the respondents with further prayer for permanent prohibitory as well as mandatory injunctions. The respondents were summoned, who appeared and contested the suit by filling their wriuen statements, wherein, they claimed that the petitioner had committed encroachment by constructing house/shops on public property.

The divergent pleadings of the parties were reduced to as many as six issues. Both the parties

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led their evidence in support of their respective contentions. For proper decision of the subject matter, the Tribunal appointed a local commission for proper decision of the subject matter in dispute mainly depended on the ascertainment of factual position on the spot and both the parties also floated requests for a local commission for spot inspection. The earlierreport of first local commission had been rejected. The second local commission was appointed, who submitted its detailed report in the maffer, he was also examined as CW-l, wherein, he submitted that petitioner has made no encroachment in canal therein bearing Khasra No.l0l2 of the petitioner.

However, the learned Additional District Judge- J III, Mardan, after framing issues, hearing both the parties and recording pro and contra evidence, dismissed the suit of the petitioner vide the impugned judgment and order dated 09.06.2022.

Hence, the instant writ petition.

3.Arguments heard and record

perused.

4.Perusal of the record would reveal that the learned Tribunal constituted under Section 12 ofthe Khyber Pakhtuntr*rwa Public Property (Removal of Encroachment), Act,1977 (hereinafter to be referred as "Tribunal")

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entertained the civil suit No.26ll of 2020 (original institution dated 05.01.201 8), wherein, the petitioner challenged the notice dated 22.05.2017 issued to him under Section 3 of the Act of, 1977, stating therein that the petitioner are owner and possession of the suit property and shops measuring 30 Marlas falling in Khasra No. 1039, purchased by him, vide mutation No.4 57 | dated 29.04.2003. Conversely, the respondent department in para No. 10 of their written statement raised the defence that the petitioner has encroached upon Khasra No .1012 Mouza Bagh e lrum to the extent of 13 Marlas and 6 Sarsai.

5.The learned Tribu nal, while

d adjudicating the matter, from the divergent pleading of the parties, framed as many as six issues. The crucial issues resolving the controversy between the parties are Issues No. 2 and 3, which being relevant are reproduced as under:-

"fssue No.2: (Whether the plainfiIf is owner in possession of a house meosuring 30-Marlas vide mutation No,4571 doted 29.04.2003 situated at conal road Biili Ghor). Issue No.3: Whether the property in respect of which nottce u/s 3 of the KPIK Removal of Encroachment Act, 1977 has been issued by the defendants is not a public property?)"

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6.It is important to mention here that the learned Tribunal, while adjudicating upon issue No.2, specifically held that the petitioner is owner in possession of 30 Marlas land consist of constructed house and shops falling in Khasra No.1039 vide mutation No.457 I dated 29.04.2003 and also held that there is no any controversy and differences between the parties with regard to ownership of the petitioner. Similarly, while adjudicating on issue No.3 the learned Tribunal specifically held that certain important facts which both the parties admit are worth mentioning at the very outset here, which are reproduced as under: - O fhe lrrigation conal of the defendants bears Khasro No.1012.

(it)On record, adjacent to the cunol (Khasra No,1012) towards east is situated Khasra No.1014 which wholly consists of a road belonging to the Railway Department. Then, d Khasro No.7039 in which the plaintff cloims his 30-Marals area/house, is situoted next odjacent to Khasra No.1014 (the rood) on eastern side. So, on record, the road bearing Khasra No.1014 of Railway Department intervenes the canal and Khasra No.1039 on the eastern side".

7.The local commission also carried out the spot inspection and submitted his report exhibited as CW. lll and was also examined aS C.'W- 1. As per the report of local commission, which was confirmed, wherein, it is stated that petitioner has made no

v any encroachment upon the irrigation canal bearing Khasra No. 1012 ofthe respondents. Yet, the petitioner has encroached upon Khasra No. 10l4,the road on the record belonging to the Railway Department, which is also public property

8.Now before giving any findings, over the merits of the case, it is important to examine the relevant law on the subject i.e. the Khyber Pakhtunkhwa Public Property (Removal of Encroachment), Act, 1977. The relevant provisions of the Act of 1977 are reproduced as under for ready reference: -

"2(a-i) "outhorized ofricer" meons ony person, appointed or authorized, generolly or specially, by Government, o Department of Government or its attoched department or subordinote office, on outonomous entity, o public sector compofr!, a local government, a development authority of Government or any other authori$ of Government, vested with the possession, monagement or control of a public property, to d corry out all or ony of the purposes of this Act and rules mode there-under,

2(d) "Government" means the Government of the Khyber Pakhtunkhwa.

2(h) "public property" meons o building, land, place or premises, which vests in, or is in the possession or under the monogement or control of Government, Local Council, outonomous body, 6 [public sector companyl or such other outhori$;

Section-3. Vacation of property ond removal of encroachment. ---(7) If the outhoriZed ofricer is satisfted that a person is an unauthorized occupant, he ffiay, by order in writing, direct such person to vacate the public property and to remove the structare of his own risk and cost, d on!, raised by him on the public property,

v within such period as may be specifted in the order".

9.Aperusal ofthe above-mentioned

provisions clearly shows that the Provincial Government as defined in Section 2(d) ofthe Act of 1977 is only competent to appoint or nominate generally or specially any'cauthorized officer" as mentioned in Section 2(a-i) to issue a notice under Section 3 of the ibid Act, with regard to the any encroachment, upon the public properly, as envisaged under Section 2(h) of the Act of 1977. So, by scanning the entire record of the case file and the findings of the learned Tribunal, it is admitted fact that the notice issued by the respondent to the petitioner is not within the mandate of respondent Department, as the property forming the subject matter of the notice does not fall within the Khasra No.1012, which d is the property of the Irrigation Department.

While on the other hand, the record suggests that the petitioner has encroached some ofthe portion of Khasra No.1014, which belongs to the Railway Department (Federal Government).

10.The other question before this Court is that whether under Article 199 of the o'Constitution" this Court can interfere in the order and judgment passed by the learned

v Tribunal. Article lgg(tXaXii), deals with the writ of certiorari, which reads as under: - u199. Jurisdiction of High Court. (l) Sub' .

to the constitution, a Hish court mov, i, it is satisfied that no other adesuate remedv is r-ovided bv low-

(o)on the a -" " ' oc anv osgFieved n 'n, moke an order

(t)directing o person performing, within the teruitoriol jurisdiction of the Court, functions in connection with the affiirs of the Federation, a Province or o local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he iS required by law to do; or

(i0 declarins that onv oct done or roceedins token within the teruitorial iurisdiction o" the Court bv a r -son performins functions in connection with the af" :- , of the Federation, a Province or a locol authoritv has been done or token without lawful authoritv ond is oe no lesol e'coct: or

(b)on the application of any person, moke sn svflsy-

(t)directing that a person in custody within the teruitorial jurisdiction of the Court be brought before it so d that the Court moy satisfy itself thot he is not being held in custody without lawful authority or in on unlawful manner; or

(it)requiring a person wilhin the teruitorial jurisdiction of the Court holding or purporting to hold a publtc office to show under what authority of law he claims to hold that office; or

(c)on the application of any aggrieved person, moke an order giving such directions to ony person or authorily, including ony Government exercising any power or pedorming ony function in, or in relation to, any teruitory within the jurisdiction of that Court as

v moy be appropriate for the enforcement of any of the Fundomental Rights conferued by Chapter I of Port ffu.

11.It is manifest from the above, the writ of certiorari, a High Court on the one hand is vested with power to correct the error committed by the inferior Courts or Tribunals and on the other hand to annul the acts or proceedings taken by the inferior bodies without any lawful authority.

12.The order of certiorari issues out of the High Court and is directed to the Judge or Officer of an inferior tribunal to bring the proceedings in a cause of matter pending before the Tribunal into the High Court to be dealt with in the order to ensure the applic ant for the order may have the more sure and speedy justice. It may be had in either civil or criminal d proceedings. The Court issuing a writ of certiorariacts in the exercise of a supervisory and not appellate jurisdiction. As regards the character and scope, certiorari will be issued for correcting effor of jurisdiction. In order to explain it more precisely, it can be said that writ of certio ruri can be issued in the following circumstances: -

"(i) when an inferior Court or tribunal acts without iurisdiction or in exces^t of it or fails to exercise it,

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(i0 when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, os when it decides without giving on opportuni$ tu the parties to be heard, or violates the principles of natural justice.

(iit) if there is an eruor opporent on the face of the FecoFd".

13.Guidance in this respect can be sought from "AUC - , DEPARTMENT throuph Chie' ' 'gralor Auc ' Pun' Lohore v. Y, MINISTRY OF

RET,IG ZAKAT. US AND

MINORITIES AFFAIRS GOVERNMENT OF

PAKISTAN, ISLAMABAD and 3 o,thers" (2009 SCMR 210t. The relevant extract from the same is reproduced below: -

"8. As discussed in preceding poragrophs, there ore two dffirent kinds of properA, one 'Muslim Waqlf Property' defined in section 2(e) of the Punjab Waqf Properties Ordinonce, d 1979 and the other 'evacuee trust proper$' defined in section 2(1)(d) of the Evacuee Trust Properties (Monagement and Disposal) Act, 1975. These two properties can be maintained by the concerned functionories/ authorities under the relevant provisions of low. The Administrator Auqaf is not competent to take over possession, control and manogement of the 'evacuee trust properA', rather it is the Chairmant Evacuee Trust Property Board,

who is competent for the same. Learued counselfor the petitioner has not been able to controvert the above provisions of law. The High Court has validly observed that the question as to whether the transfer in 1960 was or was not 'bona Jide, cannot be determined because it was not a question of law. The High Court has competently dismissed the writ petition as lindings recorded by the respondent/authorities being based on appreciation of evidence could not be interfered with by the High Court in exercise of "ertraordinary" constitutional jurisdiction and in regard tofinding offact recorded by the respondent writ of ncertiorari" could only be issued, tf in recording such Jindings, the respondent had acted on evidence which was legally inadmissible or had ref,used to accept J admissible evidence or if theJindings were ntot supported by any evidence at all. If in such c(Nes errot would amount to eruor of law.

14.In the case of RAHIM SHAH

versus THE CHIEF ELECTION

COMMISSIONER OF PAKISTAN AND

ANOTHER (PLD 1973 Suoreme Court 24t the Hon'ble Supreme Court ofPakistan also outlined the scope of writ of "certiorari" in the following words :-

v "It may he further observed that although the conditionsfor grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the ertefi of this constitutional jurisdiction cannot be enlarged to an appeal on facts, or questions of law. An appeal is a creation of statute and if no appeal ,s provided by the Legislature the determination of a ffibunal of exclusive jurisdiction is tinal. The scope of interference in the High Court is, therefore,limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answet be in the affirmative the High Court will stay its hands and will not substitute its owntindingsfor the ftndings recorded by the trihunal. Cases of no evidence, bad faith, misdirection or failure to d follow judicial procedure, etc. are treated as acts done without lawful authotity and vitiate the act done or proceedings undertaken by the tribunal onthis ground.lWhere the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted''

15.This Court in the case of B3Sfl!!

AHMAD KHAN versus ADDITIONAL

v SESSIONS JUDGE ond others Q020 tt[LD r, also observed as under:-

"7..........The person invoking the Constitutional jurisdiction under the above Article seehing issuance ofwrit of certiorari, by way of setting aside the order, has to show that the order, under challenge, violates the condilion mentioned in the above provisions of the Constitution, that the

authority/court/tribunal was denuded of jurisdictton whatsoever to pass the order or that the order impugned is unsustainable on account of being result of extremely, improper exercise of jurisdiction or has clearly been passed in violation of any provisions of law or is product of excess orfailure of jurisdiction, by the tribunal or that some principle of taw laid down by the superior courts, which under Article 189 of the Constitution is binding on the subordinate courts has been violated. The scope of intederence by the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law.

If the answer be in the afrirmative the High Court will stay its hands and will not substitute its own tindings for the Jindings recorded by the tribunal. Cases of no evi.dence, had faith, misdirection or failure to follow judicial

v procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertahen by the Tribunal on this ground."

16.In a nutshell under the above- referred article of the "Constitution", a High Court is empowered to interfere in all cases of excess of jurisdiction, whether the person exceeding jurisdiction is a Court, a judicial or a quasi-judicial body or a purely executive or administrative Tribunal or officer, provided such body, authority or officer is performing functions in connection with the affairs of the Federation, a Province or a Local authority.

17.In view of the above, I have reached to a definite conclusion that the notice dated 22.05.20t7 issued by the respondent d Department to the petitioner, with regard to the encroachment upon the public property, the respondent Department has lacked the competence to issue notice under Section 3 of the Act of 1977 withregard to the property, which is not owned and possessed by the "Government" as defined in Section 2(d) of the Act through o'authorized officer" as defined in Section 2(a-i)' Thus, the notice issued by the authorized officer is without any competence, the authorized person of the Railway Department (Federal

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v Government) can only issue notice for the removal of any encroachment or the property belonging to the Railway Department, under the relevant law, after adopting the proper procedure

18.Hence, the order and judgment of the learned Tribunal dated 09.06.2022 to the extent of non-striking the impugned notice dated 22.05.2017 is set aside, and consequently, the notice date d22.05 .201 7 issued by the respondent Department is hereby struck down. The Railway Department (Federal Government), if so desired, can initiate the proceedings against the petitioner for removal of the encroachment, if any.

L9. This writ petition is disposed of in the above manners.

Aqnounced t Dt:04.02.2025.

JTIDGB

(SB)Hon'ble Mr. Justice Sadio Ali.

*Amir Shehzad*