Muhammad Zubair Khan etc Vs Govt. of KP through Chief Secretary, Peshawar

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.559-P/2024 Mr. Muhammad Zubair Khan Niazi & another Vs. Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar & others.

For Petitioners Mr. Shumail Ahmad But, Advocate.

For respondents (official) Mr. Muhammad Inam Yousafzai, AAG For private respondents M/s. Fida Gul & Syed Fakhar-ud-Din Shah, Advocates Research Assistant Riaz Aslam Daavi SRO, PHC Date of hearing 10.09.2025.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J:-The Petitioners have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, seeking the following prayers:- I. That the Impugned Judgment and Order of Special Encroachment Tribunal Bannu dated 23.05.2023 is illegal, unlawful, without lawful authority and of no legal effect thus be put at naught.

II. To set aside the inquiry proceedings so arising out of the impugned Inquiry Notice No. SO (E-I) E&AD/1-1/2023 dated 06.06.2023, being illegal, unlawful and without lawful authority.

III. To direct the Respondents to proceed ahead with challenging the Impugned Judgment and Order dated 23.05.2023 and seeking its judicial review before competent forum.

IV. Issue directions to Respondents to punish those indolent and nonchalant officers/officials who fail in protecting the interest of government and public property including river bed and public thoroughfare/road from the clutches of encroachment mafia.

2.The petitioners argued that the judgment dated 23-05-2023 of the Special Encroachment Tribunal is ultra vires the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, inconsistent with the revenue record that treats the site as public property, and contrary to binding precedent. On that footing, the Tribunal lacked lawful authority to reach the

conclusions recorded in the impugned judgment and order. They further submitted that fair trial and due process were denied in violation of Article 10-A of Constitution. The departmental inquiry initiated on 06-06-2023 is, they say, procedurally void: no statement of allegations or clear questionnaire was supplied, the inquiry officer was not senior in rank, and the mandatory scheme of Rule 10 of the KP E&D Rules, 2011 was ignored; moreover, a second exercise on the same subject offends Article 13 by exposing them to double jeopardy. According to the petitioners, the acts complained of were taken in discharge of official duties during an anti-encroachment drive and are protected by statutory indemnities, including section 27 of the KP Civil Administration (Public Service Delivery and Good Governance) Act, 2020, section 16 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act 1977, and section 23-A of the Civil Servants Act, 1973. As they were not designated Encroachment Magistrates, the recovery suit against them in their personal capacity is not maintainable. They added that the chain of actions amounts to politically motivated victimization of career civil servants and violative to Articles 3, 4, 10-A, 14, and 25. In their view, allowing the impugned judgment and the defective inquiry to stand would embolden land-grabbers, harm the public exchequer, and set a precedent adverse to governance and the rule of law.

3.In rebuttal, Respondent No. 1 argued that the petitioners were not aggrieved persons and therefore could not invoke the writ jurisdiction. He nevertheless acknowledged that the petitioners had been exonerated by the competent authority from the allegations raised by the complainant. He further submitted that any rent deed or irregularities lay within the internal domain of the TMA or local council, however, added that through this petition the matter between private respondents and TMA could neither be decided nor could be questioned before the Tribunal.

4.Respondents Nos. 5 and 6 argued that the petitioners lacked locus standi and could not assail the impugned judgment through private counsel. They asserted that the property had been allotted to them after completion of all codal formalities, that they were not unauthorized occupants, and that their possession could not be characterized as encroachment because they were lessees or tenants under valid instruments and regularly paying rent to the TMA which has never been disputed by the authority.They supported the impugned judgment and requested that the writ petition may be dismissed.

5.Arguments heard; record perused.

6.At the outset, it is necessary to advert to the writ petitions earlier instituted before this Court concerning encroachments at ViyalMandan ()ويال منڈن.The record reveals that multiple writ petitions were filed before this Court, some seeking removal of encroachments and others seeking to restrain anti encroachment operations.The first five writ petitions, namely WP Nos. 31-B/ 2013, 229-B/2013, 54-B/2013, 33-B/2013 and 135-B/2013, were decided through a consolidated judgment dated 15-05-2015. These petitions primarily sought removal of encroachments around Viyal Mandan (minor canal). In that judgment, the Court referred to the report of the Official Local Commission constituted by the Government of Khyber Pakhtunkhwa, which identified the encroachments; and at page 8, the Court recorded the following:

تجاوز کيا ہے۔165x4 نے بطرف منڈان ويالTC-II نياز خان االٹی، ( پہال پالزه رياض خان5 نياز خان بطرف منڈان ويال، االٹی ملک رياض خانTC-II ( دوسرا پالزه ملکيتی6 فٹ تجاوز کيا ہے۔165x4 نياز خان بطرف منڈان ويال، االٹی ملک رياض خانTC-II ( تيسرا پالزه ملکيتی8 فٹ تجاوز کيا ہے۔480x11

7.In these writ petitions, the present Respondent No. 6 figured as Respondent No. 25 in WP No. 229-B/2013. In these petitions, the Court appointed Mr. Muhammad Rashid Khan, Advocate, as mediator/commission. He submitted a detailed

report that, besides identifying encroachments, recorded that during measurement proceedings residents repeatedly defended their occupation on the ground that successive governments in different periods had given them the disputed area, thereby claiming that any encroachment stood regularized by the government itself. The mediator recommended that all encroachments from beginning to end, whether described as legal or illegal and whether occupied with official assistance or under court orders, be revoked, and that the Viyal Mandan be restored to its original width in accordance with the revenue record.This Court in Para-7 of the judgement has observed that “unfortunately, the local and provincial governments have themselves indulged in encouraging illegal acts promoting encroachments. There are reports that local government/TMA itself has made encroachment over the land of the water course under consideration, There are also instances that the local government has permitted various other departments, who had either executed unauthorized and technically unsound public works or constructed bridges over the said water course, and many other departments have passed gas pipeline and telephone cables, which has made it impossible for smooth flow of water through this channel. All these illegal encroachments have contributed to obstruction in the smooth flow of water resulting in flooding of many locations, which had caused damage to valuable properties of the residents of Bannu city on one hand, while on the other hand, it seriously affected the growth of crops in near about lands, which is the only source of income of the farmer.” The Court disposed of all the petitions with directions that (i) all encroachments made by any person over the Viyal Mandan water channel be removed forthwith, (ii) the channel be desilted, and (iii) every obstruction, in whatever form, that impedes the smooth flow of water be removed at the cost of the violators and encroachers. The Court further directed that the Viyal Mandan

be restored in accordance with the record of rights, and that all departments remove any pipelines, cables, or other installations laid across the channel.

8.In 2016, the present Respondents Nos. 5 and 6 filed Writ Petition No. 247-B/2016, praying for an order restraining the District Administration, Bannu, from demolishing their plaza and shops. In its judgment, this Court referred to paragraph 7 of the commission or mediator report prepared in WP No. 31-B/2013. Relying on that report, the Court directed the respondents, including the District Administration, to remove every inch of encroachment from the Viyal Mandan water channel strictly in accordance with the revenue record, without discrimination, fear or favour, and without delay. Thus, the prayers of Respondents Nos. 5 and 6 were dismissed in that writ petition. Thereafter, Respondents Nos. 5 and 6 filed Writ Petition No. 427-B/2021, praying that the authorities be restrained from causing any damage to their constructed property, or from dismantling the plaza/shops situated at Railway Gate (Eastern Side Viyal Mandan), measuring 10,872 square feet. The said property had been allotted to them by the Government of Khyber Pakhtunkhwa vide letter No. SO- II(LG)5-140/2007, dated 24.03.2007, on annual rent. This petition was subsequently clubbed with W.P. No. 442-B/2021. During the arguments, Notice bearing No 199/AC dated 17.05.2021 was produced but the court held that requirements of section 3 has not been fulfilled. Therefore, both petitions were disposed of through a consolidated judgment dated 10-06-2021 and the this court observed that:

“In view of the above, when no such report is there and no notice was ever served upon the petitioners or affixed any conspicuous place till now, we dispose of the instant petition and the connected W.P No.442-B/2021 titled “Khan Dar Ali Khan Vs. Secretary Local Government and Rural Development Government of Khyber Pakhtunkhwa & 08 others” in terms of directing the respondents to act strictly in accordance with law pertaining to the recovery of alleged encroached area of public property with prior

notice in accordance with Section 3 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, as any act done which is not in consonance with the Act of 1977 would be violative to the fundamental and statutory rights of the petitioners. These petitions stand disposed of, however with no order as to cost.”

This writ petition did not restrain the district administration from removing encroachments; rather, it directed that the proper procedure prescribed by law be followed.

9.The controversy of instant petition is the outcome of notices issued by the petitioners (the than Deputy Commissioner) to private respondents under section 3 of the Public Property (Removal of encroachment) Act, 1977 who have challenged the notices before the tribunal under the ibid Act of 1977 on the plea that they have not encroachment upon the public property and that their possession at the spot was not unauthorized. They have sought declaration therein to the effect that their constructed shops situated towards East Viyal Mandan Railway Gate Bannu City over an area of 26212 Square Feet owned by Municipal Committee/TMA, allotted to them after fulfilment of all legal and codal formalities and they being allottees/tenants are in possession of the same, who have made construction by spending huge amount but neither they have made any encroachment in the public property nor have violated the law. Their status is that of the tenants of TMA; hence, notices dated 22.06.2021 and 11.06.2021 are illegal, collusive, against the fact and ineffective upon their rights by alleging therein that TMA Bannu has given the possession of the property to them in term of highest bidder for auction of the property; thus, the allotment was issued in their favour on 24.03.2007. Proper site map was passed by the Competent Authority, rent agreements were executed and thereafter they have made construction. The have also alleged that in the year 2016, the defendants intended to demolish their constructed property for which W.P No.247-B/2016 was filed and

after proper demarcation, meager portion of constructed plaza was demolished, whereas, the remaining property was held to be in possession of respondents Nos. 5 and 6 and since they have made no encroachment in the public property; thus, the writ petition was decided in their favour on 10.06.2021. They alleged that without providing an opportunity of being heard, notices were served upon them, which are inoperative upon their rights.

10.The suit was resisted by the defendants including defendants No.5 and 6 on different legal and factual objections. It was alleged in the written statement that plaintiffs have encroached upon the public property, constructed shops in Khasra Nos.16 and 17 of revenue estate of Hinjal Sherza Khan and in Khasra Nos. 2156, 2157 and 2158 of the revenue estate of Fatima Khel Kalan, which is Ghair Mumkin Viyal and Ghair Mumkin Road. After completion of the trial, the suit was decreed in favour of respondents Nos. 5 and 6; hence, the instant petition.

11.The petitioners have questioned the correctness and legality of the judgment passed by the Special Tribunal. After hearing the learned counsel for the parties and examining the record, the following questions arise for determination:

1.Whether the impugned judgment passed by the Special Tribunal is within the jurisdiction of the Special Tribunal.?

2.Whether the disputed property falls within the definition of "public property" as provided under clause (h) of subsection (2) of the KPK Act V of 1977?

3.“Whether respondents No. 5 and 6 were in unauthorized occupation of the property in question and, if so, whether they were liable to dispossession?

4.Whether the petitioners can challenge the impugned judgment in their personal capacity?

5.Whether the petition of the petitioners falls within the category of pro bono public?

12.As to question No 1, the rationale underlying the establishment of specialized courts is threefold: firstly, to lessen the burden on ordinary courts; secondly, to ensure the

expeditious disposal of cases; and thirdly, to bring matters of a similar nature within the jurisdiction of a single forum to avoid controversies relating to jurisdiction. Therefore, the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 was enacted to provide measures for the removal of encroachment from all types of public property, including land and buildings, vested in the government or local bodies, with the main object to enforce the eviction of unauthorized occupants and the removal of any structures raised on the public land, at the encroacher’s risk and costs, through a summary process with exclusive jurisdiction for Tribunal and the powers to impose penalties. The law seeks to protect land, buildings, and other assets vested in or controlled by the Government, local councils, autonomous bodies, or public sector entities, so that such property is used for the benefit of the public and not appropriated for private gain. In order to achieve this purpose, the Act provides for the establishment of Special Tribunals by the Government through notification in the official Gazette. Each Tribunal is constituted for a specified territorial area and is presided over by a District Judge, Additional District Judge, District Magistrate, or Additional District Magistrate, with not less than three years of judicial experience. Section 13 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 vests exclusive jurisdiction in the Tribunal to adjudicate specific disputes. The law provides that where a question arises regarding whether a particular property is public property or not, or whether a lease or licence in respect of such property has been legally determined, it is the Tribunal alone that has the authority to decide such matters. Ordinary civil courts have no jurisdiction in such matters, and leaving the Tribunal as the sole competent authority to decide these issues. In the exercise of its functions, the Tribunal is empowered to proceed in accordance with prescribed procedures and enjoys all the powers of a civil court under the Code of Civil

Procedure, 1908. It may summon and enforce the attendance of witnesses, examine them on oath, receive evidence on affidavits, compel the production of documents, and issue commissions for the examination of witnesses or documents. Furthermore, the Act provides that any order passed by the Tribunal, conclusively determining the rights of the parties with respect to matters in controversy under the Act, is final and binding. Thus, the Special Tribunal functions as a specialized judicial forum designed to provide speedy and effective adjudication of disputes relating to public property encroachment. It is an instrument to safeguard the State assets, ensure compliance with the law, and prevent misuse of valuable public resources. In the present case, it is admitted fact that notices under Section 3 of the Act 1977 for removal of encroachment were issued in respect of the property known as Mandi Viyal Mandan, comprising Khasra Nos. 2156, 2157 and 2158 of the revenue estate of Fatima Khel and Khasra Nos. 16 and 17 of the revenue estate of Hinjal Sherza Khan. These notices, dated 11.06.2021 (bearing No.168/AC-1) and the reminder dated 22.06.2021 (bearing Nos.177–83), were challenged before the Special Tribunal Bannu by Respondents Nos. 5 and 6 through Civil Suit No. 03/CS filed on 12.07.2021. Assistant Commissioner Riaz Ahmad appeared before the Tribunal as DW-2 on 18.05.2023 in whose statement, notices were endorsed to have been issued by the then Assistant Commissioner Bannu.Once a notice under Section 3 of the Act ibid is issued, the matter falls exclusively within the jurisdiction of the special tribunal1. The learned Tribunal, in its limited jurisdiction, was seized with the powers to decide whether the plaintiffs/respondents Nos. 5 and 6 had encroached upon public property, or whether the notices issued under Section 3 of the Act of 1977 were legally correct, within the domain and in view of the parameters set out by the Hon’ble Supreme Court in the case of MUNEER AHMED Vs GALYAT DEVELOPMENT AUTHORITY (2023 CLC

“Mian Hakim Ullah & 02 others Vs. Additional District Judge/Tribunal, Nowshera &04 others”2, wherein it was held by the Hon’ble Supreme Court that;

“It may be mentioned here that under section 11 of the Act the jurisdiction of the Civil Court to decide a dispute whether any property is not `public property' or that the lease or license in respect of such public property has not been determined for the purposes of the Act has been taken away and all suits, appeals and applications relating to such disputes pending on the date of enforcement of the Act have been declared to have abated. However, under the proviso to section 11(2) a party to such a suit, appeal or application has been given the right to file a suit before the Tribunal constituted under section 12 of the Act within 30 days of the coming into force of the Act, relating to such dispute. This right conferred on the party can neither be suspended nor negated on the plea that the Government has not framed the relevant rules. We, accordingly, hold that the right available to a party under the Act to file a suit or application before the Tribunal in respect of dispute mentioned in section 13 of the Act is not circumscribed by availing of the remedy of review provided under section 4 of the Act.” It was also observed that;

“A plain reading of sections 12 and 13 of the Act will show that the Tribunal constituted under the Act is vested with the exclusive jurisdiction to decide the dispute under the Act, whether a property in respect whereof a notice under section 3 of the Act has been issued is not a `public property' or that the lease or license in respect of such property has not been determined for the purposes of the Act.”

Thus, in view of the foregoing grounds, the Special Tribunal was competent and possessed the jurisdiction to hear and adjudicate the matter. Therefore, the answer to the question is in the affirmative.

13.As to question No.2, public property has been defined in Section 2(h) of the Act of 1977, which reads as follows: “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, public sector Company, or such other authority.”

1993 SCMR 907

In light of the above definition, the record produced before the Tribunal confirms that the disputed property is owned by the Tehsil Municipal Administration (TMA) Bannu. PW-01 Zohaib Khan, Patwari Halqa Mauza Sherza Khan, produced Fard Jamabandi of Khasra Nos. 16 and 17 as Ex.PW-1/1, Khasra Girdawari as Ex.PW-1/2, Field Book as Ex.PW-1/3, and Aks Shajra Kishtwar as Ex.PW-1/4. PW-02 Hidayat Ullah Khan, Patwari Halqa Mouza Fatima Khel, produced Fard Jamabandi of Khasra Nos. 2156, 2157 and 2158 as Ex.PW-2/1, Aks Shajra Kishtwar as Ex.PW-2/2, Field Book as Ex.PW-2/3, and Khasra Girdawari as Ex.PW-2/DX-1. PW-04 Mir Baz Khan, Rent Inspector TMA, produced note sheets and lease documents including rent deed Ex.PW-4/6, proceedings of council Ex.PW- 4/7, rent assessment certificate Ex.PW-4/8, advertisement and auction proceedings Ex.PW-4/10 to Ex.PW-4/13, allotment orders Ex.PW-4/14 and Ex.PW-4/15, challan of Rs. 7,60,600 Ex.PW-4/16, rent deed with Malik Riaz Khan Ex.PW-4/17, and approved sketch Ex.PW-4/18. The statements of PW-05 and PW-06 further supported the stance of respondents Nos. 5 and 6.On the defendants’ side, DW-1 District Qanoongo Sakhi Shah produced mutation No.133 dated 28.05.1924 and mutation No.134 of the same date attested in favour of Municipal Committee Bannu, exhibited as Ex.DW-1/1 and Ex.DW-1/2, along with Jamabandi of 1927-28 as Ex.DW-1/3. The record shows that the property had been transferred from Deeparam and Jaswant Raam through these sale mutations. In light of the foregoing evidence, including Fard Jamabandi, mutations, demarcation reports, allotment orders, lease agreements, rent- paying documents, assessment certificates, the testimony of officials and revenue staff, and the comments of Respondent No. 1, it is established that the suit property vests in TMA Bannu and the special tribunal rightly relied on the evidence produced before it. It therefore falls within the definition of public property under

Section 2(h) of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977.The answer to the question is in the affirmative.

14.As to question No 3, the object of the act is to remove unauthorized occupants from the public property. Every possession of an individual in the public property is not unauthorized in consonance with the provision of Section 2(j) of the Act 1977 is as follows:

Unauthorized occupant means a person who has made encroachment on, or is in occupation of, any public property without the express permission or authority of a competent authority, and includes—

(i)a lessee or licensee who, after the expiry or determination of the lease or license, continues to remain in occupation of public property;

(ii)a person inducted into public property by the lessee or licensee thereof; and

(iii)every member of the family of the lessee, licensee, or a person inducted by them, who remains in occupation after the expiry or determination of the lease or license.

This provision clarifies the authority to order vacation of the property and removal of encroachment by persons who occupy public property without permission of a competent authority, or who continue in possession after the expiry of a lease or license. An unauthorized occupant is not merely an occupier/possessor in the physical sense but a trespasser against the collective will of society, the order of law, and the principles of justice. The addition of “unauthorized” occupation was intentionally added by the legislature with reasons and rationale. The theory of law is reason, free from passion, which encapsulates the ideal characteristics of a just and equitable legal system. By emphasizing the importance of reason, objectivity, and freedom from passion the law has provided the mode of removal of illegal occupant. Such an occupant is therefore subject to removal not only in the name of law but also in the name of justice, morality,

and the greater public good. Public property is held in trust for the benefit of the people, and any unauthorized occupation of it constitutes a breach of that trust. It is well settled that Public property belongs not to the whims of any single individual but to the collective interest of society, safeguarded by the law. To occupy such property without sanction is, therefore, a form of encroachment upon the rights of all, a usurpation of what is common for private ends.

15.In the present case, respondents Nos. 5 and 6 cannot be treated as unauthorized occupants. The revenue record, the allotment order, and rent-paying documents, as already noted in the answer to Question No. 2, confirm that their possession is lawful on the basis of lease. The record also reveals that no definite report exists regarding demarcation from three permanent points to determine the actual boundaries of the Viyal, the total width of which is 2 Karam (11 feet). Without proper demarcation, any construction raised therein cannot conclusively be termed as encroachment on public property. Reports prepared by the Girdawar and Patwari were placed on record, but none conformed as provided in the High Court Rules regarding Hadd- Shikni or proper determination of encroachment, as emphasized in Col. Mahboob Khan v. Abdur Rashid and another3. Even if it is presumed, without proper demarcation, that the construction fell within the area of Viyal, the possession of respondents Nos. 5 and 6 would still not qualify as unauthorized under Section 2(j). The Deputy Commissioner, being aware of the possession, the allotment by TMA, and the claim of lawful tenancy, was not competent to direct demolition without first determining the boundaries and status of the property. By ordering demolition without such determination, the action was carried to an extreme that the law does not permit. Accordingly, in light of the evidence before the Special Tribunal and the definition under Section 2(j), 1993 MLD 1599, Lahore

it is held that respondents Nos. 5 and 6 were not unauthorized occupants. Their possession being lawful, no anti-encroachment proceedings could be initiated against them. Therefore, while the suit property is indeed public property, the occupation of respondents Nos. 5 and 6 does not fall within the mischief of unauthorized occupation, and the question is answered in the negative.

16.As to question No 4, it is an admitted fact from the record that Petitioner No. 1, Muhammad Zubair Khan Niazi, was posted at Bannu on 23.01.2020, while Petitioner No. 2, Shaukat Ali Yousafzai, was posted there on 16.06.2020. Petitioner No. 1 was transferred from Bannu on 24.05.2022, and Petitioner No. 2 was also subsequently transferred from Bannu Division. The present petition was filed on 20.01.2024, at a time when both petitioners were no longer posted at Bannu.The record further shows that both petitioners were arrayed as defendants, in their official capacity, in the suit filed before the Tribunal constituted under Section 12 of the Public Property (Removal of Encroachment) Act, 1977. After the suit of Respondents No. 5 and 6 was decreed in their favour, an inquiry was initiated against Petitioner No. 1 through Notification No. SOE-III/LG/2-1/LCB/complaint/2013 W/F 3007 dated 18.04.2023, whereby Mr. Mukhtiar Ahmad (PCS SG BS-20) was appointed as the Inquiry Officer. He held the petitioner, along with Mr. Atiq ur Rehman (then RMO) and Mr. Naveed Gandapur (then TMO), guilty. Similarly, Respondents No. 5 and 6 filed a suit for recovery of damages amounting to Rs. 129,826,401/- on 17.11.2023 before the District Court, Bannu, against the petitioners and others. As a result, the petitioners filed the present writ petition. Therefore, the institution of present petition by petitioners is primarily in personal capacity in the above backdrop. In other words, the instant petition, to the extent of Petitioner No. 1, has been filed in his personal capacity for the following reasons. Firstly, decreeing

of the suit resulted in the initiation of departmental proceedings against Petitioner No. 1, as evident from the memorandum of petition, where one of the prayers was for setting aside the inquiry proceedings arising out of the impugned inquiry notice. It is appropriate to mention that during the course of arguments, learned counsel for the petitioners, Mr. Shumail Ahmad But, Advocate, submitted at the bar that the inquiry so initiated later resulted in the exoneration of Petitioner No. 1. Therefore, to the extent of prayer-II, the instant petition has become infructuous.

17.Secondly, the decree in favour of Respondents No. 5 and 6 led to the institution of a suit for damages in personal capacity against the petitioners, which is still pending adjudication. This is one of the reasons that Petitioner No. 1 approached this Court in his private capacity, questioning the judgment of the Tribunal, which formed the basis for the institution of the damages suit. As to the questions regarding the maintainability of that suit for damages, whether the actions of the petitioners in official capacity were taken in good faith and in accordance with law, and whether immunity was available to them, are matters to be determined by the competent court where the proceedings are pending. Any findings on the maintainability of that suit in these proceedings may prejudice the rights of either party. Since the matter is sub judice, the merits of that case cannot be discussed through the instant petition, nor can the judgment of the Tribunal be challenged on the ground that proceedings for damages were instituted. Although the petition, to the extent of prayer-II seeking to set aside the inquiry proceedings, has become infructuous, the judgment of the Tribunal cannot be challenged solely on the basis that departmental proceedings were initiated against the petitioners. Likewise, the institution of the suit for damages, whether for special or general damages, cannot be challenged through a writ petition against the judgment of the Tribunal.

18.Another significant aspect is that the petitioners have instituted the instant petition through private counsel. When law officers and the office of the Advocate General are available to represent public servants and protect the interests of the Government, only in exceptional circumstances can private counsel be engaged. No such circumstances have been placed before this Court. The Apex Court has repeatedly held that governments should not engage private counsel when salaried law officers are available, as this burdens the public exchequer and reflects maladministration.However, a private counsel can be engaged if properly authorized by government. The Supreme Court, in the well-known Rasheed Ahmed4case , held as follows:- There may however be cases which involve complicated questions of the Constitution or some extremely technical law which the Attorney General, in the case of the Federation, and the Advocate General, in the case of a province, and their law officers do not have the requisite ability to attend to. In such a case the concerned constitutional office holder should certify that he and the law officers do not have the requisite expertise in the field and that the engagement of a private counsel who is competent and experienced is required. Needless to state, the engagement of private counsel can only be sanctioned for compelling reasons and in the public interest and not to protect or save a particular individual (as was done in WP 1548) or for any other ulterior reason.

In the present petition, the petitioners, while representing themselves as Deputy Secretary, Economic Affairs Division, Islamabad, and Commissioner, Mardan Division, did not follow the prescribed procedure for engaging private counsel. It is an admitted fact that both petitioners were arrayed before the Special Tribunal in their official capacity. Upon their transfer, the right to question the impugned judgment, if at all available, passed to their successors or to any other person aggrieved. Therefore, there remains no room for the petitioners themselves to challenge the said judgment, for once they ceased to hold office, the cause of 2017 PLD Supreme Court 121.

action, if any, devolved upon their successors. If those successors or other aggrieved persons consider themselves prejudiced, they are at liberty to challenge the judgment, and indeed such a challenge has already been made, though the petition in that regard was returned with objections. In this peculiar scenario, the petitioners cannot be permitted to assail the impugned judgment, for extending such liberty would not only infringe upon the right of their successors to challenge it, but would also amount to exonerating the successors in office from the duty attached to their position, and to wrongly substituting the petitioners in place of those upon whom the responsibility now lawfully rests. Law does not permit a person to re-enter a role once vacated, nor to usurp the rights of successors in whom authority is vested. To allow otherwise would be to undermine the continuity of office, to extinguish the lawful rights of successors, and to confer a privilege where none exists in law. Hence, the answer to the question stands in the negative.

19.As to question No 5, the contention of Mr. Shumail Ahmad But, Advocate, that Petitioners, being citizen of Pakistan, were vested with all the powers and rights granted by statute to question any illegality before this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is misconceived. This petition is not pro bono Público, as both petitioners seek to advance personal causes rather than public interest. Petitioner No. 1, already exonerated in departmental proceedings and facing a pending damages suit, cannot invoke this jurisdiction merely on account of having served as Deputy Commissioner, since such matters lie within the competence of his successor in office. Petitioner No. 2, transferred from Bannu to Mardan Division and himself a defendant in the damages suit, likewise lacks locus standi. The legality of the Tribunal judgment may be questioned only by those presently holding office or otherwise directly aggrieved, and not by the present petitioners. As

far as, the invocation of writ petition under the doctrine of pro bono public is concerned, the Apex court in the case of Moulvi Iqbal Haider5 held in the following words: - “A person can invoke the constitutional jurisdiction of the superior Courts as pro bono Público' but while exercising ' this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the public. The word `pro bono Público' as defined in Black’s Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means `for the public good' or `for -welfare of the whole' being or involving uncompensated legal services performed especially for the public good. `Public interest' in the Black Law Dictionary, has been defined as the general welfare of the public that, warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large, which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above contest, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate this grievance as `pro bono public.”

20.The present petition does not fall within the category of pro bono Público, as the conditions mentioned above are not satisfied. The petitioners, being public functionaries, had a nexus with the property to protect the interest of the State. In accordance with law, they contested the suit through their written statement. However, once they were transferred, they could not Moulvi Iqbal Haider Vs Capital Development Authority (PLD 2006 Supreme Court 394) see also PLD 2004 SC 482

question the judgment of the Tribunal for the simple reason that they are public servants and the proceedings before the Tribunal were not in consonance with law. Whatever was done was in their official capacity. It is now for their successors in office to challenge the impugned judgment if they so desire or feel aggrieved. Although, as citizens of Pakistan, they may in their private capacity—without reference to their official status and by engaging private counsel—invoke the writ jurisdiction, yet in the present case, where the writ petition arises out of a departmental inquiry and a suit for damages, the character of pro bono Público loses its significance. The answer to the question is in the negative.

21.During arguments, certain additional contentions were raised, which this Court considers appropriate to address. It was argued that the due process for allotment in favour of Respondents No. 5 and 6 was not followed and that public property cannot be leased out. The record shows that in their written statement, the petitioners, while serving as Commissioner and Deputy Commissioner in Bannu Division, raised objections regarding the maintainability of the suit. In paragraph No. 5 of the preliminary objections, they questioned the advertisement for allotment issued by the Tehsil Nazim, while in objection No. 8 they disputed the allotment itself and the boundaries of the property. These issues could not be adjudicated by the Tribunal constituted under Section 12 of the Act of 1977. As held in the case of Mian Hakim Ullah (Supra), the Tribunal has exclusive jurisdiction only to determine whether a property is public or not. As to the question whether the property was allotted without following due process, this is essentially a matter which, on the administrative side, falls within the domain of the Local Government Department and the Provincial Government, and on the judicial side, within the jurisdiction of the Civil Court. The legality or propriety of the allotment, including whether proper procedure, advertisement, or transparency was observed, is to be

examined by those competent authorities. Such a question does not fall within the jurisdiction of the Special Tribunal, whose mandate, as already discussed, is confined to determining whether a property qualifies as public property within the meaning of law. Questions relating to allotment, possession of the TMA, transfer of possession to the plaintiffs, attestation of mutation, and determination of boundaries fall exclusively within the jurisdiction of the Civil Court.Reference may be made to the case of “Muhammad Farid & others Vs. Municipal Committee, Abbottabad through Administrator & others”6, wherein, it was held that:- “In our view, the learned counsel appears to be right because section 13 clearly vests the Tribunal with jurisdiction only to determine whether 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 the said Act. Evidently, the questions dealt with by the Tribunal in the present case did not fall within the ambit of its jurisdiction, as visualised by section 13. It is only in this regard that the Tribunal appears to have been vested with exclusive jurisdiction and the jurisdiction of the civil Court has been barred as indicated by section 11. Mr. Muhammad Ibrahim Satti has, however, argued that the words "or anything done or intended or purported to be done under this Act" occurring in section 11 tend to enlarge the jurisdiction of the Tribunal to any action that may be taken under the provisions of the said Act. This contention of the learned counsel appears to be falacious on the face thereof as sections 11 and 13 are to be read together. Section 13 of the said Act hardly leaves any doubt that the jurisdiction of the Tribunal extends to matters only referred to therein. As has been pointed out earlier, it is only where the Tribunal has been vested with exclusive jurisdiction, the jurisdiction of the Civil Courts to that extent has been barred.”

Therefore, the questions of alleged wrongful allotment or unlawful leasing can be addressed neither by the Special Tribunal PLD 1999 Supreme Court 41

nor, at this stage, by the petitioners through the writ jurisdiction of this Court.

22.Learned counsel for the petitioners also contended that the plaintiffs/respondents Nos.5 and 6 have made encroachment in the public property, which was in-fact a riverbed/Viyal in terms of the provisions of KPK River Protection Ordinance 2002, as such, neither any injunction could be granted nor could the suit be decreed. The scheme of the Khyber Pakhtunkhwa River Protection Ordinance, 2002 leaves little doubt that the Legislature intended to create strict protective belts around rivers and tributaries. By virtue of Section 1(2), the Ordinance extends to any river, stream, or tributary, or part thereof, as may be notified by Government, thereby ensuring its flexible and province-wide application. Section 3 imposes categorical prohibitions: no person is permitted to construct or undertake developmental activity within two hundred feet of the high-water limit on either side of a river, nor may any building be raised on the land between riverbanks. Equally, the release of substances in excess of National Environmental Quality Standards, or the disposal of solid or hazardous waste into river channels, is expressly barred. The Government retains the power to enhance these limits, thereby fortifying the protective regime. For enforcement, the Ordinance entrusts wide powers to Authorized Officers, enabling them to inspect, investigate, seal, and prosecute violations, while exclusive jurisdiction to try such offences vests in the Courts of Judicial Magistrates First Class. These restrictions, coupled with the enforcement structure, establish rivers and their adjoining lands as inviolable zones where private interest must yield to the overriding public good of environmental preservation. Thus, the Ordinance represents a legislative recognition that rivers are not private commodities but a collective inheritance of society, whose protection is mandated by law and whose preservation overrides private interest.

23.However, as stated earlier, the matter relating to the alleged encroachment of the Viyal or riverbed required proper determination and demarcation of the property in order to establish whether the plaintiffs had in fact encroached. In the present case, it has been brought on record that the respondents/plaintiffs were in possession as tenants of the TMA, and in such circumstances they could not be treated as encroachers of the property. The petitioners, in their written statement, alleged that the property could not be transferred through mutation attested in favour of the TMA; however, the learned Tribunal had no jurisdiction to decide the legality or otherwise of such mutation beyond determining the factum of alleged encroachment upon public property. Nevertheless, to the extent of the Khyber Pakhtunkhwa River Protection Ordinance, 2002, if the Viyal (water channel) has been notified as protected under Section 1(2) of the Ordinance, then the matter may also fall to be examined within the framework of that law.

24.Another contention was raised by Mr. Shumail Ahmad But, Advocate, who placed much emphasis on the argument that there were two judgments of this Court directing the petitioners, in their capacity as public functionaries while posted at Bannu, to remove encroachments. It is undeniable that this Court has directed the removal of encroachments strictly in accordance with law and on the basis of the record of rights. However, in the present case, the Tribunal has held, and the record also confirms, that Respondents No. 5 and 6 are neither trespassers nor unauthorized occupants, as they hold a valid lease in their favour. Therefore, it is not a valid argument that the petitioners acted in compliance with this Court order for removal of encroachments, without considering the fact that Respondents No. 5 and 6 do not fall within the category of unauthorized occupants. If, however, the revenue record establishes that the leased property falls within Viyal Mandan, a road, or any other public utility such as a water

channel or riverbed, then appropriate action in accordance with law must first be taken against TMA Bannu for leasing out such property, which itself constitutes encroachment.

25.Hence, keeping in view the four prayers of the petitioners, this Court holds that the responsibility to challenge the Impugned Judgment and Order rests with the successors of the petitioners in their official capacity. The present petitioners, having been transferred from office, cannot challenge the same in their private capacity. If they have challenged the impugned order in their present official capacities, then they cannot hire private counsels as mentioned above.

26.As to the contention that the matter constitutes public interest litigation, this Court finds that it does not fall within the ambit of pro bono Público. The inquiry initiated against the petitioners and the damages suit filed against them were the reasons for filing this writ petition. Accordingly, the petition cannot be treated as one filed in public interest. Regarding the second prayer, as already discussed and evident from the comments of Respondent No. 1, the petitioner has been exonerated. Therefore, this prayer has become infructuous. With respect to the third prayer, Deputy Commissioner Bannu posted at Bannu questioned the validity and correctness of the judgement of the learned Tribunal, which as per the submission of both the learned counsel was returned with certain objections and till now, no petition was filed. Hence, any direction in this regard is neither warranted nor desirable. As far as the last prayer is concerned, this Court has already issued directions for removal of encroachments from Viyal Mandan in Writ Petition Nos. 31- B/2013, 247-B/2016, and 427-B/2021. In those cases, it was categorically directed that every inch of encroachment shall be removed on the basis of the record of rights and revenue record, which remain in the field. The Provincial Government is duty bound to implement those directions.

27.In the present case, this Court has noticed that TMA Bannu is recorded as the owner of the property and, as evident from the discussion above, has leased it to Respondents No. 5 and 6. However, the revenue record of Khasra Nos. 2156, 2157, and 2158 of the revenue estate of Fatima Khel, and Khasra Nos. 16 and 17 of the revenue estate of Hinjal Sherza Khan, describes the property as Viyal Mandan and road. When the nature of the property is such, a serious question arises as to whether it can lawfully be leased out, even if TMA Bannu is shown as its owner. Therefore, this Court considers that, in light of the earlier writ petitions wherein directions were issued for removal of encroachments on the basis of revenue record and record of rights, and in order to finally settle the matter, the Provincial Government shall examine all such allotments or leases made by any department in respect of properties which, according to the revenue record, form part of a riverbed, road, thoroughfare, water channel, or other public utility in consonance with the judgement of the Hon’ble Supreme Court in the case of Marvi Memon vs. Federation of Pakistan and others (PLD 2011 SC 854) 28. Hence, for the reasons discussed above, the instant writ petition is dismissed. There shall be no order as to costs. The Additional Registrar (Judicial) of this Court is directed to transmit a copy of this judgment to the worthy Chief Secretary, Government of Khyber Pakhtunkhwa, and to the Secretary Local Government, for consideration and necessary action in reference to paragraphs No. 20, 21, 23 and 24 of this judgment. Announced.

Haider Shah, SSS -sd-

J UD G E

-sd-

J UD G E

(DB)Hon’ble Mr. Justice Muhammad Naeem Anwar and Hon’bleMr. Justice Kamran Hayat Miankhel.