The District Collector, Charsadda and others Vs. Mehraban Shah and others

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JUDGMENT SHEET

PESHAWAR HIGH COURT . PESHAWAR

JUDICIAL I) ARTMENT

W.P No.l 4t-Pt2023 The District Collector, Charsadda and others Vs.

Mehraban Shah and others

Date of hearing 17.10.2023 Petitioner(s) by: Ms. Shakeela Begum, AAG. Respondent(s) by: Mr. Abdul Samad Khan and Mr. Fazal Amin, Advocates.

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JUDGMENT

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IJAZ ANWAR, J. This writ petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, with the following prayer: - ult is, therefore, humbly prayed that on occeptance of this writ petition. i. The impagned judgment, decree and order doted 18.10.2022 passed by the learned Additional District Judge-II, Charsadda, may very kindly be declared as without jarisdiction, illegal, void, without lawful authority and of a no legal effect and accordingly the impugned judgment, decree & order may kindly be set aside.

ii. The notices issued by the petitioners for the removol of encroachment declared to be lawful.

iii. Declare the suit property os public property/state lond.

iv. The respondents No.l to 6/plaintffi may kindly be permanently restrained from illegal interference in the suit property.

v. The suit liled by the respondents No.l to 6/plaintffi, being incorrect, time-barued, baseless, frivolous, illegal, withoat any substance and against the record, may graciously be dismissed with heavy cost.

vi. Any other remedy which this Hon'ble Court deems proper in the circamstances may olso graciously be owarded in favoar of the present petitioners".

2.In essence, respondents/plaintiffs No.l to 6 filed a suit for declaration and other relief coupled with an application for temporary injunction against the petitioners.

The petitioners were summoned, who appeared and filed their written statements and after framing certain issues and recording of pro and contra evidence the learned Court of Additional District Judge-II, Charsadda decreed the suit filed by the respondents/plaintiffs No.l to 6 vide the impugned ' judgment and decree dated 18.10.2022. Petitioners being aggrieved filed the instant writ petition

3.Arguments heard and record perused.

4.Perusal of the record reveals that through notice purportedly under Section 3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 respondents No. 1 to 6 were seryed for removal of the

encroachment over the public properfy. This notice was impugned by the respondents/plaintiffs before the learned Tribunal constituted under section 12 of the ibid Act. It was a declaratory suit, wherein, the respondents/plaintiffs claimed ownership to the extent of 12 Kanal in Khasra No.2965 and Khata No.258 situated at Mouza Shabqadar, Tehsil Shabqadar, District Charsadda, as its owner in possession. It is alleged that the petitioner-Government and the respondents/plaintiffs are in possession oftheir respective Khasra numbers and that no encroachment, whatsoever, has been made, rather it is the petitioners, who have encroached upon the private property of the respondents/plaintiffs. They also claimed a declaration that they are using the property ownership ofthe petitioners Khasra No.2964 as a private path and they have a right of easement over the same. They have also sought relief of permanent prohibitory injunction, restraining the petitioners from interfering in the property of the respondents and also their easement right over the path in Khasra No.2964, and have also claimed relief for possession.

5.The admitted position is that the Government is recorded owner in possession of Khasra No.2964, while the respondents/plaintiffs have ownership in Khasra No.2964 to the extent of 12 Kanal out of total 19 Kanal and 7 Marla in Khasra No. 2964. Interestingly, when the respondents/plaintiffs claimed easement rights over the property of the petitioners, additional issues to this effect

were also framed by the learned Tribunal, which being relevant is reproduced as under:-

1.Whether notices for removal of encroachment issued on behalf of defendents were legal and according to prescribed law and rules?

2.Whether plaintiffs are legally entitledfor the easement rights upon the thoroughfare in sarvey No.2964?

6.It is pertinent to mention here that in order to ascertain the claim of the respondents/plaintiffs that the petitioners have encroached upon the private land, a local commission was appointed to ascertain this fact, in addition to that he was also directed to see as to whether the ownership of petitioners in Khasra No.2964 is being used as a way or not. The Local Commission submitted his report and clarified that the respondents/plaintiffs have not made afly encroachment upon the Khasra No.2964 nor the petitioners have made any encroachment and both the parties are in possession of their respective Khasrajat to the extent of ownership, however, the commission opined that the respondents/plaintiffs are using Khasra No.2964, as a path for quite some time.

7.The learned Tribunal decreed the suit of the a respondents/plaintiffs as prayed for and has also granted a decree of easement right of passage in Khasra No.2964 by also deciding in affirmative the additional issue.

8.In the instant case, since the notice was issued to the respondents purportedly under Section-3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act,1977, as such, we have to examine the scope of the Act of 1977 and the jurisdiction of the learned Tribunal. Similarly, the public property is also defined under Section 2

(a)of the said Act, which being relevant is reproduced as under:-

"public property" meons o building, land, ploce or premises, which vests in, or is in the possession or under the management or control of Government, Locul Council, aatonomous body, 6 [public sector companyJ or such other aathority".

9.Similarly, under Section 12 of the ibid Act a Tribunal is to be constituted, which shall consist of a District Judge, or Additional District Judge, or District Magistrate, or Additional District Magistrate wtth experience of not less than three years as such Magistrate as Government may appoint. While Section-l3 of the said Act deals with the jurisdiction of the learned Tribunal. Section 13, being relevant is reproduced as under:-

uL3. A Tribunal shall have exclusive jurisdictton to adjudicate upon a dtspute that any property is not a public property or that any lease or license in respect of such pablic property has not been determinedfor the purpose of this Act".

10.Section 13 of rhe ibid Act would show that the Tribunal has exclusive' jurisdiction to adjudicate upon a dispute as to whether the property in dispute was not a public property or if the lease or license was granted in respect of such property and whether the same was not determined under the said Act. Reference can be made to the case of "Mion Yamin ul Haque Vs Muncioal Committee throush Choirman Abbottabad and others" (PLD 2003 SC 307t.

11.Similarly, it is also by now well settled that the learned Tribunal having been vested with limited jurisdiction to the extent of determination of above referred questions, cannot assume the role of Civil Court by also determining other rights between the parties. Reference can be made to case titled "Muhammad Farid others Vs Muncioal Commitlep, throash Chairman Abbottabad and others" OLD 1999 SC 4l), the relevant para of which is reproduced as under:-

"Reading of sections 11 and 12 together, makes it abundantly clear that in cases where the Tribunal has been vested with exclusive jurisdiction, the jurisdiction of the Civil Court is barred, Mr. Mushtaq Ali Tahir Kheli, learned counselfor the respondents Nos. I and 2 has argued that the Tribunal has been vested with limited kind of jurisdiction and it has no jurisdiction to determine rights between the parties. 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 parpose of the ssid Act. Evidently, the questions deult with by the

Tribunal in the present case did notfail 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 barued as indicated by section 11. Mr. Muhammad lbrahim Satti has, however, argued that the words ,,or anything done or intended or purported to be done under this Act" occuruing in section 11 tend to enlarge the jurisdiciton 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 I I and 13 are to be read together. Section 13 of the said Act hardly leaves any doubt E 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. The said words referred to by Mr. Muhammad Ibrahim Satti indtcate that section 11 does not only relate to actions which may be taken under the Act, but the bar provided in the said section would even relate to purported actions that may be taken under the said Act. Therefore, the Tribunal is clearly not vested with jurisdiction to determine questions other than those referued to in section 13 of the said Act and jurisdiction of the Civtl Courts in such cases would not be burred".

L2. In the instant case, the main prayer of the respondents/plaintiffs pertains to the grant of easement rights and not to the one which was to be adjudicated by the learned Tribunal, because the notice issued to the respondents was in respect of the unauthorized use and encroachment upon Khasra No.2964, which was owned by the petitioner- Government, this fact was also admitted by the local Commission. Similarly, in the commission report, there is no

"Ghair Mumktn Rasta" is available in Khasra No.2964, thus, allowing a decree in the shape of right of easement to the respondents/plaintiffs, is beyond the jurisdiction of the learned Tribunal. As stated above, the learned Tribunal having limited jurisdiction to the extent of determination of the question as to whether such properfy is public properfy or otherwise, cannot go beyond by granting easement right of passage to the respondents/plaintiffs.

13.It is pertinent to mention here that during the pendency of the suit before the learned Tribunal a Service Delivery Center has already been constructed, which is functional and there is no allegation that the petitioner- Government has in any manner made any encroachment upon the property of the respondents/plaintiffs. This fact has also been conceded in the commission report.

14.Such being the case, we find that the learned Tribunal has exceeded its jurisdiction by rendering the impugned judgment, accordingly, this petition is allowed and the judgment and decree of the learned Tribunal is struck down, and the suit of the respondents/plaintiffs, stands dismissed.

Announced Dt:17.10.2023. t

JUDGE /

(DB)Hon'ble Mr. Justice liaz Anwar and Hon'ble Mr. Justice S.M Attioue Shah *Amir Shehzad*