Muhammad Rashid & others Vs Galiyat Development Authority & others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 139-A/2018

JUDGMENT

Date of hearing.............11.09.2025...........................

Petitioner (Muhammad Rashid & others) By Mr.Siraj Hussain, Advocate.

Respondents (Galiyat Development Authority & others) By Mr. Muhammad Ayub Awan, Advocate.

AURANGZEB, J.- Through instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks the following relief:- “It is, therefore, most humbly prayed that on acceptance of instant writ petition, the impugned order dated 12/12/2017 of the tribunal below may graciously be set-aside by allowing the miscellaneous application of the petitioners and the case may kindly be remanded back to the tribunal for its disposal on merits after a due adjudication. Any other relief deemed appropriate may also be granted in favour of the petitioners.”

2.In essence, the petitioners instituted a civil suit for declaration and other consequential reliefs against the respondents, the particulars of which are comprehensively set forth in the headnote of the plaint. During the pendency of the said suit, the petitioners moved an application before the learned trial court seeking directions to the respondents to file their written statement within the prescribed period, so that

the proceedings could effectively advance towards adjudication on merits. The respondents, however, contested the said application by submitting their written reply wherein they resisted the prayer made by the petitioners. The learned trial court, after hearing arguments advanced by the learned counsel for both parties and considering the respective pleadings, vide order dated 12.12.2017, was pleased to dismiss the application of the petitioners. Not only that, but the learned trial court also proceeded to dismiss the main suit itself, holding that the same was not maintainable before the court in its present form. Feeling aggrieved by the said order and the consequential dismissal of their suit, the petitioners have now invoked the constitutional jurisdiction of this Court through the instant petition.

3.We have considered the submissions learned counsel for parties and have gone through the record.

4.The available record clearly reflects that the petitioners entered into temporary lease agreements with the respondents in respect of the shops under dispute. The very terms of the agreements, as incorporated in Paragraph No.1, leave no manner of doubt regarding the temporary and conditional nature of such arrangements. The clause unequivocally states that “the lease of the shop shall be on purely temporary basis which can be terminated as and when desired by the Trust. The lessee shall have no claim

whatsoever on the shop and it shall be dismantled when the land is required for the Trust.”

5.The language employed in the aforesaid covenant is categorical and unambiguous. It clearly circumscribes the rights of the petitioners, limiting them merely to a permissive use of the premises at the discretion of the Trust. The clause makes it abundantly clear that the Trust retained the absolute authority to terminate the arrangement at any time of its choosing, without assigning any further reason. The petitioners, as lessees, were expressly barred from setting up or asserting any proprietary right, ownership claim, or even a vested interest in the subject shops. The agreements, therefore, placed the petitioners on a purely precarious footing, with their possession being conditional and entirely subordinate to the requirements of the Trust.

6.In legal contemplation, such stipulations negate the creation of any enforceable tenancy rights or long-term leasehold interests. The temporary lease was contractual in nature, subject to the overriding necessity of the Trust, and by its very terms excluded the possibility of conferring any permanent or indefeasible entitlement upon the petitioners.

Once the Trust required the land for its own purposes, the petitioners’ right of possession automatically ceased, and they could not lawfully resist eviction or seek to assert any claim contrary to the express covenants of the agreements.

Accordingly, the foundation of the petitioners’ case stands

undermined by the very documents upon which they rely, which instead of supporting their claim, reinforce the temporary and terminable character of their occupation.

7.In view of the express stipulation contained in Paragraph No.1 of the lease agreement, whereby the lease was declared to be purely temporary and terminable at the will of the Trust, the respondents issued notices of cancellation of the temporary allotment in respect of the shops situated in Thandiani Township. Instead of vacating the shops in compliance with the said notices, the petitioners approached the learned trial court seeking redressal. Such recourse to the court was, however, in direct violation of Paragraph No.5 of the lease agreement, which explicitly provides that “He shall have no right to go to the court against the Trust for the purpose of lease or extension of lease period in case it is taken back by the Trust. The Chairman Trust will be the final authority to decide the case in case of any dispute between the Trust and the lessee.”

8.The effect of this clause is twofold: firstly, it reinforces the temporary and precarious nature of the petitioners’ possession, and secondly, it creates an express contractual bar against judicial interference in matters relating to termination or extension of such leases. The parties, by mutual consent, vested final authority in the Chairman of the Trust to resolve any disputes arising out of the agreement, thereby excluding the jurisdiction of civil courts in such

matters. Hence, the very act of the petitioners in instituting proceedings before the learned trial court was not only contrary to the spirit of the agreement but also in breach of their own contractual undertaking.

9.It is further noteworthy that after issuance of the vacation notices, the lease agreements between the parties were never renewed or extended by the respondents, thereby extinguishing whatever limited rights the petitioners might have previously enjoyed under the temporary allotments.

Additionally, it is admitted that no notices under Section 3 of the Khyber Pakhtunkhwa Public Removal of Encroachment Act, 1977 were issued by the respondents. This fact, however, does not advance the case of the petitioners, as their possession stood automatically determined under the terms of the lease agreements themselves. In these circumstances, where the contractual rights of the petitioners had lapsed, the bar contained in Paragraph No.5 of the lease agreement operated against them, and the absence of any statutory notices under the 1977 Act does not clothe them with an enforceable cause of action.

10.Furthermore, it is an admitted position that the property in dispute has now been declared by the Government of Khyber Pakhtunkhwa as part of its policy for the establishment of four Integrated Tourism Zones (ITZs), aimed at developing new tourist destinations in the province.

Thandiyani, situated in Abbottabad District, has specifically

been identified and notified as one of these Integrated Tourism Zones. In pursuance of this policy, the Tourism Department has approached the Galiyat Development Authority (GDA) and formally requested the transfer of an area measuring 462 kanals, so that the same may be placed at the disposal of the Department for onward submission in compliance with the requirements of the Khyber Pakhtunkhwa Integrated Tourism Enterprise (KITE) project.

This declaration by the Government, coupled with the request of the Tourism Department, clearly demonstrates that the property in dispute no longer remains a matter of private claim alone, but has assumed the character of land reserved for a public purpose of high significance, i.e., promotion of tourism and economic development. Consequently, any claim advanced by the petitioners over such land stands weakened, as the governmental policy decision and the statutory requisition by the concerned Department hold precedence under the law.

11.Besides, the pivotal question that arises for determination is whether, in the absence of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, the Tribunal could lawfully assume jurisdiction to the exclusion of the ordinary Civil Courts. More specifically, the issue is whether the Tribunal is vested with competence to exclusively adjudicate upon two essential matters: firstly, whether the property in dispute falls within the statutory

definition of “public property,” and secondly, whether any lease, license, or tenancy granted in respect thereof has been validly terminated or cancelled in accordance with law.

Such an inquiry necessarily touches upon the inherent jurisdiction of Civil Courts, which by settled principles, ordinarily enjoy plenary powers to decide questions relating to ownership, title, possession, leasehold rights, and validity of contractual arrangements. Thus, the fundamental question is whether such jurisdiction of Civil Courts stands ousted merely by implication in the absence of an express statutory provision. It is a settled principle of law that exclusion of the jurisdiction of Civil Courts cannot be readily presumed; it must either be explicitly provided by legislation or arise by necessary implication. The determination of this issue, therefore, goes to the very root of the matter as it involves the fundamental distribution of jurisdiction between specialized Tribunals on one hand and the ordinary Civil Courts on the other.

12.The Khyber Pakhtunkhwa Public Property

(Removal of Encroachment) Act, 1977 is a self-contained statute, enacted to address a particular mischief, namely, the unauthorized occupation and encroachment upon public property. The preamble of the Act expressly declares that its object is to provide effective measures for the removal of encroachments from public property and for recovery of possession thereof. Prior to its enactment, no special

mechanism existed for the speedy removal of

encroachments, leaving the Government vulnerable to protracted litigation. The Act, therefore, not only provides the State with expeditious remedies but also ensures that individuals claiming lawful rights are afforded an opportunity to contest the Government’s claim. Thus, the legislative intent was to strike a balance between efficient protection of State property and safeguarding individual rights.

13.The structure of the Act reveals that the legislature deliberately bifurcated responsibilities between executive authorities and a judicial forum. Section 3 empowers the authorized officer, once satisfied that a person is in unauthorized occupation of public property, to issue a notice requiring the occupant to vacate and remove any structure raised thereon. Section 4 enables the person so affected to seek review of such notice, particularly if he disputes the public character of the property or contests the termination of his lease or license. If non-compliance persists, the authorities are empowered to forcibly remove the encroachment and recover costs. These provisions constitute the executive framework designed to enable prompt Government action against encroachers.

14.In parallel to this administrative mechanism, the Act establishes a judicial forum in the form of a Tribunal. Section 12 provides for its constitution, while Section 13 vests in it the exclusive jurisdiction to determine two specific questions:

firstly, whether a particular property is or is not “public property” within the meaning of the Act; and secondly, whether a lease, license, or tenancy in respect thereof has been validly determined. Section 11 reinforces this exclusivity by expressly barring the jurisdiction of Civil Courts in matters falling within the Tribunal’s competence. This statutory ouster of jurisdiction is unambiguous: once proceedings are initiated under the Act, the ordinary Civil Courts cannot entertain suits or grant injunctions concerning the nature of the property or the validity of rights claimed therein.

15.Furthermore, Section 14 of the Act clothes the Tribunal with powers judicial in character. It is vested with powers akin to those of a Civil Court, including summoning of witnesses, compelling production of documents, recording evidence on oath, and issuing commissions. The Act declares proceedings before the Tribunal as judicial proceedings, ensuring due process, solemnity, and adherence to procedural fairness. Orders of the Tribunal conclusively determining the rights of the parties are declared final and binding, thereby giving its decisions the status of adjudications having full legal efficacy.

16.From this statutory scheme, it becomes manifest that the legislature intended to strike a careful equilibrium. On one hand, it ensured that the Government’s efforts to protect and reclaim public property would not be impeded by the delays of civil litigation. On the other hand, it safeguarded the

rights of individuals by entrusting disputes relating to the nature of the property and subsistence of leasehold or contractual rights to an independent judicial forum. The Tribunal thus serves as a check against arbitrary or mistaken executive action while ensuring that adjudication remains efficient, specialized, and focused on the precise issues envisaged by the Act.

17.It follows, therefore, that once a notice under Section 3 is issued and a dispute arises regarding the public character of the property or the validity of lease or license claimed therein, such questions can only be raised before the Tribunal. Any recourse to ordinary Civil Courts is expressly barred under Section 11. The role of the Tribunal is not executive in nature; rather, it is strictly judicial, its function is to adjudicate upon the legitimacy of the Government’s claim.

Its decisions, being final under the Act, conclusively resolve the controversy, subject only to judicial review on constitutional grounds such as lack of lawful authority, jurisdictional defect, or violation of fundamental rights.

18.In view of the foregoing, it is held that the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 creates a dual mechanism: administrative action for prompt removal of encroachments, and judicial adjudication by the Tribunal for disputes concerning the character of the property and rights therein. The jurisdiction of Civil Courts stands expressly barred, and the Tribunal alone is competent

to decide such disputes. This reflects the deliberate legislative intent to simultaneously protect public property while ensuring preservation of due process and fairness to all parties concerned. In the regard reliance is placed on case titled Mian Yamin Haque versus Municipal Committee through Chairman, Abbottabad and others (PLD 2003 Supreme Court 307), wherein it was held that:- “10. With regard to pleas raised in leave granting order, the scope of Tribunal under the North-West Frontier Province Public Property (Removal of Encroachment) Act, 1977 (hereinafter referred to as the said Act) the section 13 of the said Act states as follows:-- "A Tribunal has 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.".

The above provision of said Act, 1977 would show that the Tribunal has exclusive jurisdiction to adjudicate upon the dispute as to whether the property in dispute was not a public property or if the lease or licence was granted in respect of such property whether same was not determined under the said Act. "Public property" as defined under subsection (h) of section 2 of the said Act, 1977 would mean "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". The property in question was admittedly-on lease with the said 'Hindu' who raised over the said land, a building for running a cinema, which land was leased out by .the respondent local council i.e. Municipal Committee, Abbottabad, therefore, the land fell under subsection (h) of the said Act. Admittedly, after expiry of lease period, lease money was not paid to the respondent by the appellant, therefore, the lease stood determined/terminated. In the circumstances

the land, which was on lease with the then lessee reverted to the respondent Municipal Committee, the structure of building on the land also became unauthorized within the meaning of subsections (c) (h) (i) (ii) (iii) of section 2 of said Act, 1977 on the determination of the lease of the land. It is true that the Tribunal constituted under the said Act has exclusive jurisdiction to adjudicate upon the dispute as to whether the property was not a public property or the lease or the license of such property has not been determined but for adjudication of the said dispute it would be inevitable, unavoidable to determine the status of property as to whom the said property vested/belonged within the meaning of subsection (h) of the said Act, 1977. So also it would be of utmost importance to find out as to whether, the property in dispute vested with the Settlement Authorities so as to be available for its transfer under the Settlement Scheme or that the property vested with the respondent-Municipal Committee so as to fall under subsection (h) of section 2 of the said Act, 1977. The Tribunal has gone through the relevant documents on record and has rightly arrived at the conclusion that the property in dispute vested/belonged to the respondent-Municipal Committee, therefore, same was "public property" within the meaning of subsection (h) of section 2 of said Act 1977 as such could not be in the compensation pool and available for its transfer. Besides it be observed that the appellant/plaintiff in the instant case himself approached the said Tribunal for determination of the said dispute claiming relief that the said notice of auction was illegal and void as it was not a "public property" belonging to the respondent- Municipal Committee, therefore, the Tribunal adjudicated upon the said dispute and came to the correct and legal conclusion that it was a "public property" considering that after determination of the lease period, which having not been renewed/extended under the rules of the Municipal Committee said land reverted to the respondent. In the said circumstances, it cannot be said that the Tribunal by adjudication has exceeded its jurisdiction in declaring the said property to be public property vesting with the respondent/ Municipal Committee or that the learned

Division Bench of the High' Court committed any jurisdictional error in maintaining the finding of the learned Tribunal.

12.So far the contention of the learned counsel for the appellant that the issuance of the notices for auction the land were not legal, has no merit and force as after the appellant failed to remove the unauthorised structure as per material on record, said action on the part of the respondents was legal, proper and in accordance with law considering that neither lease money was paid nor period of lease was got extended so as to make the structure of cinema to be legal/authorised, therefore, the land in dispute which vested with the respondent-Municipal Committee, being public property could not be transferred by the Settlement Authorities. Besides, it may be pointed out that the appellant/plaintiff having approached the-Tribunal for the relief cannot be allowed/permitted to reprobate by pleading that the Tribunal had no jurisdiction on the ground that the Civil Court being the Court of plenary jurisdiction, would be competent to decide the dispute of ownership. It be borne in mind, that in order to determine the dispute as to whether the property was not a public property or the lease period of said public property has not been determined, the question of status/nature or title of such property would be relevant and necessary to be determined as discussed above. In view of material on record and reasonings, notices and action initiated by the respondent-Municipal Committee were legal, proper and in accordance with law.”

Further reliance is placed on the judgment of this court rendered in case titled Muneer Ahmad versus Galyat Development Authority and another (2023 CLC 1093), wherein it was held that:-

“In the matter in hand, so far no order under section 3 of the Act read with Rule 3 of the Rules has been passed, directing the petitioner to vacate any public property, rather it is contended in the suit before the Civil Court as well as before the Tribunal that the officials of the respondent/GDA are interfering in his peaceful possession, hence, in the absence of any order ibid, the Tribunal established under the Act had no jurisdiction to entertain the suit, and therefore, the suit filed before the Tribunal was not maintainable, hence, the impugned order was patently correct, hence, this writ petition being devoid of any merits stands dismissed.”

19.Accordingly, in light of the admitted contractual terms, the unequivocal language of the lease agreements, and the conduct of the petitioners, it is held that the suit instituted by the petitioners was not maintainable before the learned trial court, being barred both by the agreement executed between the parties and by operation of law.

20.Learned counsel for the petitioners has utterly failed to demonstrate or even point out any illegality, material irregularity, or jurisdictional defect committed by the learned trial court while passing the impugned order. The arguments advanced on behalf of the petitioners remained vague, general, and unsupported by any cogent material on record.

No violation of law, disregard of settled principles of procedure, or miscarriage of justice has been established which could warrant interference by this Court in the exercise of its extraordinary constitutional jurisdiction.

21.For what has been discussed hereinabove, the instant writ petition being bereft of any merit, is hereby dismissed.

Announced.

JUDGE

Aftab PS/*