::Case Law on Illegal Dispossession Act, 2005 in Pakistan

PLJ 2009 Cr.C. (Peshawar) 365

Present: Muhammad Alam Khan, J.

Illegal Dispossession Act, 2005–

—-S. 4(i)–Pakistan Penal Code, (XLV of 1860), S. 448–Criminal Procedure Code, (V of 1898), S. 439–Applicability to ordinary disputes–Dispute between the parties is purely of a civil nature and much prior to the filing of the petition–FIR was lodged by the petitioner against the respondents which was still pending and will be decided on its own merits–Presence of civil liability recoverable under the ordinary law of the land–Provisions of Illegal Dispossession Act, are not applicable in the circumstance–Revision dismissed.    [P. 367] A

Judgment

The petitioner Muhammad Sohail moved the Court of District and Sessions Judge, Peshawar through a complaint under Section 4 (i) of Illegal Dispossession Act, 2005, for the restoration of possession of House No. 492 Street No. 5 Sector F/9, Phase-VI Hayatabad, Peshawar. It was averred in the complaint that the petitioner was owner in possession of the above mentioned house. A sale transaction of the said house was struck by Fazal Muhammad and Munshi Brigade respondents for a total sale consideration of Rs. 22,00,000/- (twenty two lacs) with the complainant. It is averred in the application that

Rs. 1,00,000/- (one lac) was paid as earnest money by the respondents while a cheque of Rs. 18,00,000/- (eighteen lacs) was given by Respondent No. 2 at the time of transfer of the said house, in the office of Peshawar Development Authority, while the remaining balance of

Rs. 3,00,000/- (three lacs) was promised to be paid after return of Respondent No. 1 from abroad. Further allegations in the complaint are that on the return of Respondent No. 1 from foreign country, he started resorting to delaying tactics and instead of paying the above sale consideration flatly refused to pay the same. That some 4/5 months back Respondent No. 1 with the help of his servants and servant of Naveed, Property Dealer, opened the locks, doors and windows of the house and took forcible possession and thus, it was prayed, that as the respondents have committed an offence under the provisions of Illegal Dispossession Act, 2005, therefore, they should be arrested, tried and punished.

2. A similar application was inquired into by the local police of Tatara Police Station, Hayatabad Peshawar, who after conducting inquiry submitted its report to the effect that Fazal Muhammad has gone to Dubai and on his return he will be dealt with in accordance with law.

3. The learned trial Court after summoning the respondents and hearing the learned counsel for the parties by his order dated 15.3.2007, dismissed the application and hence the present criminal revision petition.

4. Mr. Alamzeb Khan, Advocate for the petitioner was heard in detail and Respondents 1 and 2 submitted written arguments. Learned counsel for the petitioner submitted that the respondents have taken the illegal possession of the house in dispute some four or five months before the institution of the present complaint and thus, are liable to the punitive action under the provisions of Illegal Dispossessions Act (Act No. XI of 2005).

5. That once it is proved on record that illegal possession is taken by a person, irrespective of the fact whether under the garb of legal title or not, the offence stands established and proceedings can be initiated against the wrong doers. It was further submitted that in the instant case, even if the respondents undertake to pay the balance sale consideration, that will neither minimize the effect of the offences already committed nor would totally absolve them of their criminal liability. Mr. Muhammad Saeed Khan Shangla, Additional Advocate General supported the impugned order passed by the learned Additional District Judge-X, Peshawar.

6. On the other hand, respondents submitted that the matter is purely of a civil nature. A sale bargain had been struck between the petitioner and Respondent No. 1 and the major portion of sale consideration had been paid and the remaining amount of Rs. 3,00,000/-(three lacs) is outstanding. At the time of agreement to sell, the possession had been handed over by the complainant to the respondent. It was also submitted that the petitioner has lodged FIR No. 60 dated 21.4.2006, under Section 448 PPC, in Tatara Police Station, Hayat Abad, Peshawar, which is under investigation, thus, it was submitted that on the touch stone of the authority reported in PLD 2007 Lahore 231 captioned Zahoor Ahmad and 5 others Vs. The State and three others, the matter in dispute does not come within the ambit of Illegal Dispossession Act, 2005.

7. I have given my anxious consideration to the facts of the case and legal intricacies involved in the case. The Lahore High Court in the case of Zahoor Ahmad Supra has held that the Illegal Dispossession Act has neither retrospective effect nor has its applicability to ordinary disputes rather it pertains to the land grabbers and land maphia. This view was, however, over-ruled in the latest judgment of the Supreme Court of Pakistan in the case of Rahim Tahir Vs. Ahmad Jan and two others (PLD 2007 SC 423), that the Illegal Dispossession Act, 2005 was promulgated in order to protect the lawful occupants of the property as against the unauthorized and illegal occupants, so that the unauthorized persons should not grab the land/property of others.

8. Perusal of the record in the present case reveals that the dispute between the parties is purely of a civil nature and much prior to the filing of the petition under the Illegal Dispossession Act, 2005, an FIR  No.  60  dated 21.4.2006 under Section 448 PPC had been lodged by the petitioner against the respondents which is still pending and will be decided on its own merits.

9. The record shows that a lawful agreement of sale is entered into between the petitioner and Respondent No. 1 and the major portion of the sale consideration has been received by the petitioner and a balance of Rs. 3,00,000/- is outstanding, which is purely a civil liability recoverable under the ordinary law of the land and the provisions of Illegal Dispossession Act are not applicable in the circumstances of the present case.

In view of the facts and circumstances narrated above, there is no force in this revision petition, which is dismissed. Petition dismissed.

::Illegal Dispossession Act in Pakistan… Free Legal Advice

The Illegal dispossession Act, 200 (XI of 2005)

6th July, 2005

An Act to cure the activities of the property grabbers

WHEREAS it is obedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers;

It is hereby enacted as follows:-

1. Short title, extent and commencement.—(1) This Act may be called the illegal Dispossession Act, 2005

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. Definitions.— In this Act, unless there is anything repugnant in the subject or context:-

(a) “Court” means the court of Session;

(b) “Code” Means the Code of Criminal Procedure, 1898 (Act V of 1898)

(c) “Occupier” means the person who is in lawful possession of a property;

(d) “Owner” means the person actually owns the property at the time of his dispossession, otherwise than through a process of law, and

(e) “Property” means immovable property.

3. Prevention of illegal possession of property, etc.—(1) No one shall enter into or upon any property to dispossess, grab, control of occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.

(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of section 544 of the Code.

4. Cognizance of offence.— (1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint.

(2) The offence under this Act shall be non-cognizable.

(3) The Court at any stage of the proceedings may direct the police to arrest the accused.

5. Investigation and procedure.—Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court.

Provided that Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this sub-section.

(2) On taking cognizable of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay sufficient reasons shall be recorded.

(3) The Court shall not adjourn the trial for any purpose unless such adjournment is in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days.

6. Power to attach property.—(1) If the Court is satisfied that none of the persons are in possession immediately before the commission of the offence; the Court may attach the property until final decision of the case.

(2) In case of attachment, the methods of its management safeguard against natural decay or derioration shall be determined by the Court.

7. Eviction and mode of recovery as an interim relief.—(1) If during trail the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall as an interim relief direct him to put the power or occupier as the case may be, in possession.

(2) Where the person against whom any such order is passed under sub-section (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put owner or occupier in possession.

(3) The Court may authorize any official or officer to take possession for securing compliance with it orders under sub-section (1). The person so authorized may use or cause to be used such force as may be necessary.

(4) If any person, authorized by the Court, under sub-section (3) requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-in-charge of a police station who shall on such requisition render such assistance as may be required.

(5) The failure of the officer-in-charge of police station to render assistance under sub-section (4 shall amount to misconduct for which the court may direct departmental action against him.

8. Delivery of possession of property to owner, etc.— (1) On conclusion of trail, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at any time of passing order under sub-section (2) of that section direct the accused or any person claiming through him for restoration of the possession of the property to the owner or , as the case may be, the occupier, if not already restored to him under section 7.

(2) For the purpose of subsection (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or as the case may be, the occupier.

9. Application of Code.— Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (v of 1898), shall apply to proceedings under this Act.