Gul Usman etc vs DC

2014 C L C 1681

[Peshawar]

Before Muhammad Daud Khan, J

GUL USMAN and others----Petitioners

Versus

DEPUTY COMMISSIONER and others----Respondents

Civil Revision No.456-M of 2013, decided on 2nd December, 2013.

(a)Civil Procedure Code (V of 1908)---

----O. VII, R. 10 & S. 9---Specific Relief Act (I of 1877), S.42---Land Acquisition Act (I of 1894), Ss.4, 6, 7, 17, 18 & 23---Suit for declaration---Return of plaint--- Scope---Suit property had been acquired for public purpose and after issuance of notification award had also been announced---Reference had been filed before the Referee Judge for determination of amount of compensation which was sufficient to redress grievance of effectee/owner of a property---Civil court had got no jurisdiction to try the matter if right was created by special law and procedure for enforcement of the same had also been provided in such special law---Plaintiffs had already joined the procedure and adjudication under Land Acquisition Act, 1894 which had provided forum in the shape of reference---Both the courts below had passed just, balanced and correct judgments/orders---Revision was dismissed in circumstances.

Raees Ghulam Sarwar through Attorney v. Mansoor Sadiq Zaidi and 4 others PLD 2008 Kar. 458 rel.

(b)Civil Procedure Code (V of 1908)---

----S. 9---Jurisdiction of civil court---Scope---Civil court was court of general and ultimate jurisdiction to try all suits of civil nature unless expressly or impliedly barred by law---Civil court had got jurisdiction to try the suit under Section 9, CPC if legal right was created by the special law but no remedy was provided under the same.

(c)Maxim---

---"Ubi jus ibi remedium"---Meaning---There was no wrong without remedy.

Sayyed Badshah for Petitioners.

Muhammad Javid, D.A.-G. for Respondent.

Date of hearing: 2nd December, 2013.

JUDGMENT

MUHAMMAD DAUD KHAN, J.--- Impugned herein are the judgments and orders of learned Senior Civil Judge/A'la Illaqa Qazi, Chitral dated 13-7-2013 and that of Additional District Judge/Izafi Zilla Qazi, Chitral dated 22-7-2013, by virtue of Order VII, Rule 10 of C.P.C., the former returned the plaint to the petitioner, while the latter maintain the order of trial Court in appeal.

2.Precise but necessary facts forming the background of revision petition are that the petitioners/plaintiffs instituted a suit against the respondents seeking

declaration and permanent injunction in the Court of Senior Civil Judge/A'ala Illaqa/Qazi, Chitral. As per averments of plaint, the petitioners are owners of shops and a petrol pump as shown in the map annexed with the plaint; that petitioners came to know about survey of Chitral bypass Road Phase-III in which shops and petrol pump of the petitioners were included in consequence of political approach; that the petitioners submitted applications to respondent No.1 and high- ups but with no fruitful result. The petitioners sought permanent injunction to the effect that respondents be restrained not to include their shops and petrol pump in survey for the construction of Chitral bypass road phase-III and be also restrained to dismantle the same.

3.The respondents contested the suit through submission of written statement, wherein they sought for dismissal of the suit. The learned trial Court after hearing the parties on application for temporary injunction and point of jurisdiction, returned the plaint to the petitioners for want of jurisdiction vide order dated 13-7-2013.

4.Aggrieved of the afore-said order of trial Court, the petitioners preferred an appeal before the appellate Court. The learned Additional District Judge/Izafi Zilla Qazi, Chitral, also returned the appeal to the petitioners, vide judgment and order dated 22-7-2013. Hence, the present revision petition.

5.Learned counsel for the petitioners argued that judgments/orders of subordinate Courts are against law and facts; that the trial Court committed illegality by not framing necessary and proper issues; that both the Courts below have passed the impugned findings in a slipshod manner, which has occasioned gross miscarriage of justice. He lastly argued that respondents with the connivance of political figure are hell-bent to deprive the petitioners from their established business by dismantling their shops and petrol pump which is against the law and natural justice.

On the contrary, learned D.A.-G. appearing on behalf of the respondents strongly opposed the arguments of learned counsel for the petitioners and argued in support of the impugned findings.

6.Arguments heard and file perused.

7.This Court vide order sheet dated 27-8-2013 requisitioned the record of Award No.8104-08/Collector/DC Chitral, dated 25-6-2013 and case file of Reference under section 18, Land Acquisition Act (hereinafter called 'The Act'), pending adjudication before Additional Sessions Judge/Izafi Zilla Qazi, Chitral. The requisitioned record revealed that the disputed property has been properly acquired for a public purpose and to this effect Notification under section 4 was issued on 2-4-2012, while Notification under sections 6 and 7 was issued on 5-6- 2013 and after issuance of Notification under section 17, the Award of compensation was announced on 25-6-2013, vide which petitioner Haji Usman is entitled to Rs.18,86,587 for the land and Rs.28,46,650 for structure with 15% compulsory acquisition charges.

8.As on the application submitted by the present petitioner to the Collector, under section 18 of the Land Acquisition Act, the reference has been adjudicating before Referee Judge for determination the amount of compensation for which the Referee Court, under the Act, ibid, have to take into consideration all the related matters, as envisaged under section 23 of the Act, ibid, which is reproduced herein below:---

23.Matters to be considered in determining compensation.--- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration.---

Firstly, the market value of the land at the date of the publication of the notification under section 4, subsection (1);

Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;

Thirdly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;

Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;

Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the collector's taking possession of the land.

(2)In addition to the market-value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition.

The perusal of above-quoted provision of law is much comprehensive to redress grievance of effectee/owner of a property.

9.No doubt that Civil Court is Court of general and ultimate jurisdiction to try all suits of civil nature unless expressly or impliedly barred by law. Finds its base from the maxim `ubi jus ibi remedium' (there is no wrong without remedy).

10.If legal right of a party itself is created by the special law but no remedy is provided under the same, in such an eventuality, the Civil Court has got jurisdiction to try the suit under the provision of section 9 of C.P.C, but if in a special law not only the right is created, it also provides and prescribes a procedure for its enforcement. In such like cases, the right is strictly enforceable through the mechanism provided by said law and impliedly the Civil Court has got no jurisdiction to try the matter. Reliance can be placed on PLD 2008 (Karachi) 458 `Raees Ghulam Sarwar through Attorney v. Mansoor Sadiq Zaidi and 4 others'.

11.In the instant matter, the petitioners have already joined the procedure and adjudication under The Act, ibid, which provides four fora in shape of reference and appeals up to the apex Court to determine proper compensation on account of such acquisition, so, this petition is futile and useless. Both the Courts below have passed just, balanced and correct judgments/orders, which are not disturbed by this Court.

For what has been discussed above, the instant civil revision is hereby dismissed with no order as to costs.

AG/295/P Petition dismissed.