2025 CLS 20
Other citations: Original Judgment = 2025 CLC 159
[Peshawar High Court]
Before Muhammad Naeem Anwar and Shahid Khan, JJ
Assistant Commissioner Khwazakhela and others—Petitioners
versus
Muhammad Rashad and another—Respondents
Writ Petition No. 577-M/2021, decided on 12th December, 2023.
HEADNOTES
Awaiting headnotes from volunteer editors.
Inayat Ullah Khan, A.A.G for the petitioners.
Aziz-ur-Rehman Swati, Advocate for respondent no. 1.
Date of hearing: 12th December, 2023.
JUDGMENT
Muhammad Naeem Anwar, J.-Assistant Commissioner, Khwazakhela, District Swat alongwith 06 others, through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have questioned the judgment and decree of the learned Tribunal (Additional District Judge/Izafi Zila Qazi-III, Swat) constituted u/s 12 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 (the Act of 1977) dated 26.02.2021, whereby suit of the respondent No.1 was decreed against the petitioners for recovery of Rs.20,00,000/- as cost of construction.
2. C.M No.1560-M: Respondent No.1 through this application has requested for placing on file copy of order sheets of suit titled “Muhammad Rashad Vs. Assistant Commissioner and others” filed on 10.10.2014, order dated 06.04.2016 of Syed Kamal Hussain Shah, the then learned Senior Civil Judge, copy of plaint, copy of application for rejection of plaint for want of jurisdiction, copy of written statement, copy of an application seeking permission to withdraw the suit for filing it before competent forum in terms of decision of this Court dated 30.06.2013, copy of order sheets of Civil Revision titled “Government of Khyber Pakhtunkhwa Vs. Muhammad Rashad” and copy of memorandum of W.P No. 02- M/2016 alongwith decision of this Court dated 30.03.2016, Not only the documents annexed with the application are attested copies from the judicial record but the learned AAG has also not opposed the same, therefore, this application is allowed and the documents appended therewith are hereby read as part and parcel of the instant petition.
3. Arguments heard and record perused.
4. It appears from the record that respondent No. 1, being served with a notice dated 28.02.2014 issued by Assistant Commissioner Khwazakhela, filed civil suit No.22/1 of 2016 before the learned Tribunal seeking therein declaration to the effect that khasra No.233 of the revenue estate of Tikadari measuring 04-marla was the ownership of his father Abdul Hanan, on whose death, it was devolved upon him; that the entries of the revenue papers in favour of Provincial Government require rectification as the petitioners/defendants could not deny from the ownership right of the plaintiff. Under headnote ب of the plaint, a prayer for cancellation of notice issued by petitioner No.1 was also sought, with a further prayer that the petitioners/defendants be perpetually restrained from altering the nature of the property and transfer thereof through any means. Prayer for recovery of possession of the disputed property was also sought in case the plaintiff has lost possession during pendency of the suit and lastly, ah amount of Rs.40,00,000/- and damages caused to his construction and household articles was also sought. Suit was resisted by the petitioners through their written statement on different legal and factual objections. Completion of evidence resulted into a decree in favour of the respondent / plaintiff for declaration, cancellation of notice, perpetual injunction and recovery of Rs.20,00,000/- as damages/ compensation of the construction etc.
5. It is pertinent to mention here that khasra No.233 as per the entries of the misle haqiat, Hadd bast No.73 of the revenue estate of Tikadari Khwazakhela, an area of 04-marla has been entered as ownership of Provincial Government and is in possession of Deputy Commissioner through police department and in column of cultivation, the respondent No.1 has been entered as ghair dakhalkar, with no entries in the respective column of lagaan. The said extract has been placed on file as Ex.DWl/1 on 23.10.2019. Copy of the plaint of suit titled “Muhammad Rashad Vs. Deputy Commissioner and others” bearing No.367/1 reveals that it was filed by respondent No.1 for declaration to the effect that he is owner of khasra No.233 of the revenue estate of Tikadari measuring 04-marla, on the ground of exclusive ownership of his father and that the petitioners/ defendants have got no interest or concern with it whatsoever. The said suit was filed on 10.10.2014, wherein the present petitioners have filed an application on 07.02.2015 for return of plaint for want of jurisdiction. The said application was turned down by the learned trial Court on 24.02.2015, where against the revision also failed on 02.11.2015 but on 30.03.2016, W.P No.02-M/2016 was allowed by the Hon’ble Single Bench of this Court presided by Hon’ble Mr. Justice Ikram Ullah Khan, wherein it was held that:
6. In view of the available record, the suit property has been entered in the name of the Provincial Government and in view of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, any person on whom notice under Section 3 of the ibid Act was served, the exclusive jurisdiction will lie with the tribunal constituted in order to vacate the public property and if there is any structure to be removed, in such state of affairs in view of Section 4 of the said Act the aggrieved person may within 7 days of the service thereof prefer a revision petition to government or an authority or an officer who had made such order. It is clear from the relevant provisions of the ibid Act that no Court shall exercise jurisdiction in matter whereof notice under section 3 of the Act ibid has been served upon any person allegedly in occupation of the public property in view of Section 11 of the ibid Act which reads as:
“11. (1) No Civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to 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 or anything done or intended or purported to be done tinder this Act.
All suits, appeals and applications relating to encroachment or disputes referred to in sub-section (1) and pending in any Court shall abate on the coming into force of this Act:
Provided that a party to such suit appeal or application may, within thirty days of the coming into force of this act, file a suit before a Tribunal in case of 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.”
The above express provisions of law exclude jurisdiction of the Civil Court in matters/disputes of the like nature, therefore, judgments of both the Courts below are not legally sustainable.
7 In view of the reasons mentioned hereinabove, this writ petition is accepted, the impugned judgments of the learned Courts below are set aside and the plaint filed by the respondent/plaintiff is returned to him to approach the competent Court of law, if so advised.”
In compliance with the directions of this Court, the then plaintiff approached io the learned trial Court with an application for return of plaint, with permission for its presentation before the proper forum, which was allowed by the learned then Senior Civil Judge Swat on 06.04.2016. Consequently, Civil Suit No.22/1 of 2016was filed before the Tribunal on 13.06.2016,which was resisted by the present petitioners/ defendants but ultimately it was decreed by the learned Tribunal through impugned judgment.
6. Ex.DW1/1 is an extract from misle haqiat for the year 1985- 86 of the revenue estate of Tikadari Tehsil Khwazakhela, wherein Provincial Government has been recorded as owner of the property and the Deputy Commissioner as possessor thereof. The status of the respondent/ plaintiff Muhammad Rashad is reflecting in the column of cultivation as ghair dakhalkar with no corresponding entries in the column of lagaan. In such an eventuality, when there is a difference in column of cultivation and column of lagaan, ordinarily in accordance with the dicta laid down by the apex Court in the case of “Kaleem Shah and 16 others Vs. Sawab Khan and 17 others” (PLD 2002 SC 200), the entries of column of cultivation shall prevail. In view of the entries of misle haqiat in favour of Provincial Government qua the notice issued to the respondent/ plaintiff, the question is as to whether the Tribunal could grant a decree of affirmative declaration against the entries of misle haqiat (record of rights) for rectification thereof in favour of the plaintiff, with an additional relief for compensation etc.? The Hon’ble apex Court in the case titled “Muhammad Farid and others versus Municipal Committee” (PLD 1999 SC 41) has held that the Tribunal constituted u/s 12 of the Act of 1977 has got limited jurisdiction only to the extent of declaration that a property is not a public property whereas the prayer to the extent of compensation for damages and declaration against the entries of revenue papers is the sole jurisdiction of the civil Court. The operative part of Muhammad Farid and others’ case (supra) reads 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 counsel for the respondents Nos. 1 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 license 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 visualized 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 fallacious 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. The said words referred to by Mr. Muhammad Ibrahim Satti indicate 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 referred to in section 13 of the said Act and jurisdiction of the Civil Courts in such cases would not be barred.
In the present case, the Tribunal appears to have dealt with issues which did not fall within its exclusive domain. It, therefore, had no jurisdiction to decide the same.”
Moreover, in the case of “Mian Hakim Ullah and 2 others Vs. Additional District Judge/ Tribunal, Nowshera and 4 others” (1993 SCMR 907), it has been held by the apex Court that the Tribunal has got exclusive jurisdiction in terms of section 12 of the Act of 1977 for a declaration that a property is not the public property, the operative part of same is reproduced as under:
“We are in agreement with the views taken by the learned Judges of the Full Bench in the case of Noor Muhammad v. Additional District Judge, Nowshera (mentioned above), to the extent that it is not necessary for a person, to whom a notice under section 3 of the Act has been issued, to exhaust the remedy of review provided under section 4 of the Act before approaching the Tribunal constituted under section 12 of the Act, to seek a declaration that the property in respect whereof the notice under section 3 of the Act had been issued is not a ‘Public Property’. 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 licence in respect of such property has not been determined for the purposes of the Act. It is conceded before us that a dispute whether the property is not a ‘public property’ or a lease or licence in respect ‘of such ‘public property’ has not been determined for the purposes of the Act is outside the pale of jurisdiction of the review proceedings under section 4 of the Act. It is, therefore, quite obvious that the proceeding by way of review under section 4 of the Act could not be treated as a condition precedent for moving the Tribunal constituted under section 12 of the Act as the relief which the Tribunal has the exclusive jurisdiction to grant could hot be granted by the Authority exercising jurisdiction under section 4 of the Act.”
7. No doubt, the plaintiff/respondent No.1 approached to the civil Court through his suit wherein besides declaration, perpetual injunction, he has also prayed for cancellation of notice issued to him by petitioner No. 1 for removal of alleged encroachments, as such, there were two distinct reliefs: one was to be dealt with u/s 11, 12 & 13 of the Act of 1977 for which the civil Court could not grant a decree for cancelation of notice under the provisions of the Act of 1977, as such, the petitioners to that extent has rightly submitted the application for return of plaint to the respondent No.1, however, his suit for rest of the reliefs such as grant of declaration that the disputed khasra number was the sole ownership of the father of the plaintiff/ respondent No.1 and he, being his legal heir, is exclusive owner with the prayer that entries in the revenue papers are incorrect against his rights requires rectification and perpetual injunction restraining the petitioners from altering the nature of the suit property and lastly for compensation of the damages caused to his construction, was not the domain of the Tribunal in view of principle of Farid and others’ case (supra). This Court was right in acceptance of Writ Petition No.2-M/2016 but the directions could only be given for return of plaint to the extent of notice challenged through suit by the respondent No.1 before the civil Court whereas for remaining reliefs, the civil Court had got ultimate jurisdiction u/s 9 of the C.P.C qua the relief u/s 42 of the Specific Relief Act, 1877, thus, it appears that the Single Bench of this Court in said writ petition was not properly assisted by the then petitioners for return of plaint in respect of all the reliefs in view of the dicta laid down by the apex Court in the cases of supra cases of “Muhammad Farid and others and Mian Hakim Ullah and others.
8. More-so, this Court in the case titled “Municipal Committee Mingora through Chief Municipal Officer Vs. Nasar Khan and 8 others” (2016 MLD 1610) has held that for grant of declaration affirmative nature, civil Court has got ultimate jurisdiction being the Court of plenary jurisdiction u/s 9 C.P.C. During the course of arguments, learned A.AG has relied upon the principle laid down by the apex Court in the case of “Pakistan Represented by the Secretary to the Government of Pakistan. Minstry of Rehabilitation and works, Islamabad and another Vs. H.H Ahmad” (1971 SCMR 626), however, said judgment was rendered prior to promulgation of the Act of 1977, therefore, same is not applicable to the controversy in hand. We have before us a declaration, cancellation of notice under the provisions of the Act of 1977 issued by petitioner No.1 qua the relief for recovery of damages. The Hon’ble Supreme Court in the supra case reported as PLD 1999 SC 41 has envisaged in clear terms that the Tribunal could only grant negative declaration that the property reflected in the notice is not a public property but to the extent of rest of the reliefs that the entries in favour of Provincial Government in the revenue papers are inoperative upon the right of the plaintiff or for recovery of damages caused to his construction, were not falling within the domain of the Tribunal and in such an eventuality, the judgment and decree of the learned Tribunal to the extent that the notice issued to respondent/ plaintiff was against the law could be maintained but the intriguing aspect of the matter is that after the acceptance of writ petition and before approaching to the Tribunal in the year 2016 through the suit by the plaintiff, his alleged owned property had been demolished by the petitioners/ defendants and now at the spot, there is no constructed house, thus, the notice issued by the petitioner No.1 and served upon the respondent/ plaintiff has lost its efficacy, and there is no need for any decree perpetuity in nature restraining the petitioners/ defendant from altering or demolishing his property as it was done earlier to the institution of the instant suit. It is by now well settled that the act complained of, done and completed prior to the institution of the suit cannot be considered a ground for grant of decree for perpetual injunction and similar is the case of mandatory injunction, in accordance with the principle laid down by this Court in case titled “Salahuddin Khan and 03 others Vs. Sultan-e-Rome and 04 others” (PLD 1973 Peshawar 95). In such circumstances, the resolution of the controversy is required from the civil Court that the entries in the revenue papers in favour of provincial government are ineffective upon the right of the plaintiff/ respondent No.1 alongwith other ancillary reliefs, which is the sole domain of the civil Court. Since the decree of the Tribunal for declaration, injunction and recovery of damages has been set aside, therefore, this judgment of the learned Tribunal shall in no way be a bar against the plaintiff and shall not create any obstacle towards his relief, which suit, if any, filed by the plaintiff shall be decided on it own merits by the Court without being influenced by the observation of this Court.
9. Thus, for the reasons discussed above, the instant petition is disposed of in the following terms:
i. “The impugned judgment and decree of the learned Tribunal is hereby set aside.
ii. The plaintiff may approach to the civil Court for seeking declaration in respect of the suit property alongwith any ancillary relief i.e., recovery of compensation of damages and recovery of possession etc. where the present petitioners may resist the suit on all legal and factual objections and that shall be decided after recording of evidence, in accordance with law.”
Order accordingly