Government of Khyber Pakhtunkhwa through Deputy Commissioner, Swabi & others Vs Said Amin and others

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JI,JDGMENT SHEET

IN THE PESHAWAR HIGH OURT,

PESHAWAR,

IJUDICIAL DEPARTMENTI

Writ Petition No.779-Pl2022 with IR

Government of Khyber Pakhtunkhwa through Deputy Commissioner, Swabi and others Vs Said Amin and others

For petitioner: Malik Akhtar Hussain Awan. Additional Advocate General.

For respondents: Mr. Muhammad Hamayun Khan. Advocate.

Date of hearing: 27.07.2022.

JUDGMENT

FAZA,L SUBIIAN. J.- Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Government of Khyber Pakhtunkhwa through Deputy Commissioner Swabi and four others (petitioners), have challenged the judgment and decree dated 27.10.2021, passed by the leamed Additional Dishict Judge-I, Swab/Tribunal, under the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 withthe following prayers: -

ult is, therefore, humbly prayed that on acceptance of this writ petition the impugned ludgment, Decree & Order dated 27.10.2021 passed by the learned Additional District Judge-|, Swabi may very kindly be declared as without jurisdiction, illegal, void, without lawful authority and of no legal effect and accordingly the impugned fudgment, Decree & Order may kindly be set aside. Apptopriate Orders may also be issued for restoration of the Mutation No.6546 dated 17.02.1985 and furthermore, the suit

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liled by the rcspondents No.I to 6/plaintffi, being incorrect, time baned, baseless, frivolous, illegal, without any substance and against the record, may graciously be dismissed with heavy cost."

2.Relevant facts of the case are that the respondent No.l Said Amin and five others instituted a suit for declaration against the present petitioners before the leamed Additional District Judge-I, Swabi/Tribunal constituted under the above referred Act, claiming to be owners of property measuring 06 Kanals out of total 75 Kanals, 04 Marlas, bearing Khasra No.l975l1, Khata No.8221576, Mouza Kala, Tehsil & District Swabi, on the basis of Register Haqdaran for the years 2012-13, and that the defendants/present petitioners have got no right of ownership in the suit property and mutation No.6546 attested on 17.02.1985, entries in the revenue record and notices ofeviction on the basis ofthe said record issued by the defendants/petitioners No.1 and 2 are wrong, illegal and against the facts and circumstances of the case and therefore ineffective upon their righ* and to the extent of their hissadari possession they are entitled to retain the possession. In addition, they prayed for permanent injunction and possession of the suit property

The suit was contested by the petitioners by frling written statement and from the divergent pleadings of the parties as much as five issues were framed. The parties produced their evidence and,

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after hearing counsel for the parties and appraising the evidence, the learned Additional District Judge-I, Swabi/Tribunal decreed the suit in favour of the respondent No.1 in the following manner:- uI|. The present suit is decreed, impugned notices for removal of encroachment are hereby cancelled.

Similarly, the status of suit property is restored as before the attestation of matation No.6546 dated 17,02,1985 by cancelling the said mutation. Costs shall follow the event,"

Aggrieved from the said judgment and decree of the Tribunal, the petitioners have referred the instant writ petition.

3.We have heard learned counsel for the parties and have gone through the available record.

4.Perusal of the plaint reveals that the Tribunal under the above said Act was approached when the petitioner No.2 served notices u/s 3 of the ibid Act, vide annexure-A (consisting of three notices). The respondents through their suit have not only called in question the said notices but at the same time challenged mutation No.6546 attested on 17.12.1985 in favour of the petitioners. More precisely, the impugned judgment reveals that while granting decree in favour of the respondents, not only the impugned notices were cancelled but at the same time mutation No.6546 dated 17.02.1985 attested in favour of the Education Department was also cancelled which was beyond the competence and jurisdiction entrusted to the Tribunal

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under the ibid Act as provided u/s 13 which is reproduced herein below for the sake of convenience and understanding.

"$f,L A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or license in respect of such public property has not been determined for the purpose of this Act "

5.From the above provision it is manifestly clear that the Tribunal can only determine the question as to whether a property is a public property or otherwise whereas it cannot enter and decide the question of title/ownership which is the exclusive jurisdiction of the civil courts.

6.For the above reasons, we, while accepting this writ petition, set aside the impugned judgment and decree dated 27.10.2021 and direct the respondents that if they wish so, may approach the competent court for determination of title/ownership and may challenge mutation No.6546 dated 17.02.1985, within a month time of the passing of this judgment. In the meanwhile, till the decision of the suit, if so filed, the notices issued to the respondents for removal of encroachment shall remain held in abeyance.

Announced ft,.rr-l

27.07.2022 JUDGE

tr-r-o ^- r---J

JUDGE

(D.B) Hon'ble Mr. Justice Syed Arshad Ali and Hon'ble Mr. Justice Fazal Subhan.

(Mahmood Shah,SSS)