::Dispossession from Immovable Property by Co-Owner ..Law and Remedy

PLJ 2009 SC 509

Specific Relief Act, 1877 (I of 1877)–

—-S. 9–Constitution of Pakistan 1973 Art. 185(3)–Leave to appeal–Limitation–Dispossession by co-owner–Suit for recovery of possession–Appreciation of evidence–Petitioners were in possession and then dispossessed–Possession was not taken with consent–Suit was filed only after 10 days–All the ingredients of S. 9 were established–J & D of H.C. was not open to legitimate exception–Moreover, a owner in exclusive possession, if dispossessed by other co-owner, within 6 months can sue under S. 9 of Specific Relief Act–Petition dismissed.     [P. 513] A & B

Condonation of Delay–

—-No plausible ground for condonation of delay in filing the petition has been shown–Held: Petitioner due to lack of proper instructions by the counsel regarding limitation for filing the petition, failed to file petition in time by itself not constitute a valid ground for condonation of delay.   [P. 513] C

NLR 1980 AC 243; PLD 1955 Pesh. 26; PLD 1956 W.P. (Pesh.) 96 and PLD 1961 Dacca 259 ref.

Judgment

Ijaz-ul-Hassan, J.–This petition, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, for leave to appeal, has been filed by petitioners, against judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 28.4.2008, whereby Writ Petition No. 1542 of 2000 preferred by the respondents was allowed, judgment of Additional District Judge, Jehlum, dated 19.6.2000 was set aside and judgment and decree of the trial Court dated 7.1.1996 was restored.

2.  The petition was dismissed for want of prosecution by this Court vide order dated 10.10.2008. C.M.A. No. 2889 of 2008 has been moved on behalf of the petitioners on 11.10.2008, for restoration of the petition. The C.M.A. is accepted for the reasons mentioned therein and the petition is restored.

3.  The facts of the case necessary for adjudication of this petition are, that respondents instituted suit on 14.5.1989 in the Court of Senior Civil Judge, Jhelum, against the petitioners, under Section 9 of the Specific Relief Act, (1 of 1877), seeking possession of suit land, detailed in the plaint, alleging that respondents were continuing in possession of suit land since 1995. The predecessor-in-interest of Petitioner Nos. 1-A to 1-H has taken forcible possession of suit land on 4.5.1989 and constructed a boundary wall and `khothari’, thereon, claiming to be a purchaser from Petitioner No. 2, who has never been in possession of it.

4.  The suit was resisted on all grounds legal as well as factual. The contesting respondents denied the claim of the petitioners and asserted their own. In view of the divergent pleadings of the parties, following issues were adopted for trial:–

(i)   Whether the suit has been filed with malafide intention, if so, its effect? OPD.

(ii)  Whether the plaintiffs are estopped by their words and conduct to institute the present suit based on Preliminary Objection No. 2? OPD.

(iii) Whether the suit is bad for non-joinder of necessary parties? OPD

(iv)  Whether the suit is barred by time? OPD

(v)   Whether the Plaintiff No. 3 is not in a position to file this suit based on Preliminary Objection No. 6, if so, its effect? OPD

(vi)  Whether the plaintiffs being the owner of the suit property are entitled to the decree claimed for in the main suit? OPP

(vii) Relief.

5.  At the conclusion of trial, upon consideration of the material available on record and hearing arguments of learned counsel for the parties, learned Trial Judge, vide judgment dated 7.1.1996, decreed the suit. The petitioners, feeling aggrieved thereby, filed a revision petition in the Court of District Judge, Jhelum, which was assigned to Additional District Judge, Jhelum, for adjudication. The revision petition was accepted, vide judgment dated 19.6.2000. Judgment and decree of the trial Court was set aside and suit was dismissed. A Writ Petition was filed by respondents in the Lahore High Court, Rawalpindi Bench, Rawalpindi which was accepted vide judgment dated 28.4.2008, judgment of the Additional District Judge, Jhelum dated 19.6.2000 was set aside and judgment and decree of the trial Court dated 7.1.1996, decreeing the suit was restored. Hence instant petition for leave to appeal.

6.  We have given patient hearing to the arguments of Mr. Tariq Mehmood, Advocate for the petitioners and Mr. Abdul Rashid Awan, Advocate for the respondents. We have also gone through the material on record with their assistance.

7.  Learned counsel for the petitioners, attempted to argue that evidence adduced at the trial from the petitioners side, has not been appreciated in its true perspective; that impugned judgment is contrary to the weight of evidence on record and that it is in conflict with the rule laid down by this Court in the matter of admissibility, entertainment and acceptance of the evidence and interpretation thereof. The learned counsel invited our attention to `Khasra Girdawari’ and contended that suit land remained vacant on the spot for a long period in the past and the same was not under cultivation of respondents/plaintiffs. The learned counsel also submitted that according to the registered sale-deed (Ex.P9), suit land was sold in favour of the petitioners by Habib-ur-Rehman and Muhammad Alam vendee attained status of co-owner therefore, he can retain the possession of the suit land till it is partitioned amongst the co-sharer by meets and bound. This aspect of the case, learned counsel added has escaped notice of the learned Judge in the High Court, resulting in complete failure of justice.

8.  Learned counsel for the respondents, on the other side, controverted the arguments of learned counsel for the petitioners and supported the impugned judgment whole heartedly, maintaining that only suit for participation was competent.

9.  We have considered the matter from all angles in the light of the material on file. We find that learned Judge in the High Court has recorded a detailed and well reasoned judgment based on proper appreciation of evidence, before arriving at the conclusion and rightly placing reliance on the case of Muhammad Shafi, etc. v. Collector, etc. (NLR 1980 AC 243). The learned counsel for the petitioners despite his best efforts, failed to persue us to hold that impugned judgment is tainted with infirmity, legal or factual or suffers from the vice of misreading and non-reading of evidence. It is borne out from the record that suit land comprises in Khasra No. 262 min and 262, measuring 1 kanal 4 marlas. Ex. P.4 is register `haqdaran zamin’ for the year 1986-87. According to this document, Shaukat Sultan is recorded in possession alongwith Mst. Balqees in Khasra No. 262 min measuring 12 marlas while Kalsoom Begum is recorded to be in possession of 262 min measuring 12 marlas. Habib-ur-Rehman and Muhammad Alam are not recorded in possession of any portion of the land Ex.P2 is the `khasra Girdawri’ from Kharif 1987 to Rabi 1989, Nazar Muhammad and Kalsoom Begum are recorded in possession and later Shaukat Sultan, Balqees Begum and Kalsoom Begum are recorded in possession. The said Nazar Muhammad had transferred the land to Respondent Nos. 1 and 2 vide registered sale-deed dated 2.12.1985 Ex.P1. It is well settled proposition  that  where   co-sharer   in   possession   is   dispossessed  by  another co-sharer, then he has two remedies to avail. He can either file suit for partition or a suit under Section 9 of the Specific Relief Act, (1 of 1877). Record reveals that petitioners were in possession when they were dispossessed on 4.5.1989. It is not even the case of the respondents that the possession was taken over with consent of the petitioners. The suit was filed after 10 days i.e. 14.5.1989. All the ingredients of Section 9 of the Act (ibid) having been established, the learned trial Court had lawfully decreed the suit for reasons, not open to legitimate exception.

11.  Section 9 of the Specific Relief Act, (1 of 1877), has four ingredients:

(i)   person suing must have been dispossessed, (ii) such dispossession must be from immovable property, (iii) dispossession should be without consent and (iv) dispossession should be otherwise than in due course of law. Under this provision the Court is not competent to decide the title of the property. It only relates to possession of immovable property, if the plaintiff had been illegally disposed then Section 9 could be invoked. The plaintiff should establish that he was actually in physical possession of the immovable property from which he had been illegally dispossessed without his consent. The plaintiff must allege and prove actual physical possession either personal or constructive. If a co-sharer has been in excusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed there-from by another co-sharer except by bringing a suit for partition of the joint property. A co-owner in exclusive possession, if dispossessed by other co-owners within 6 months, can sue under the Section. A person in joint possession of immovable property is as much in possession of that property as a person who is in exclusive possession and if the person who was in joint possession is dispossessed, he can sue to be restored to that possession which he enjoyed before he was dispossessed. Sayed Jamal Shah versus Abdul Qadir Shah and others, (PLD 1955 Peshawar 26), Haji Khan Muhammad and others versus Yaqub Khan and others, (PLD 1956 (W.P.) Peshawar 96 Ahmed Mian and others versus Eakub Ali Munshi and others, (PLD 1961 Dacca 259), and Muhammad Muzaffar Khan versus Muhammad Yusuf Khan, (PLD 1959 S.C. (Pak).

12.  Office has reported that this petition is barred by 50 days. No plausible ground for condonation of delay in filing the petition has been shown. The mere fact that petitioners due to lack of proper instructions by their counsel regarding the limitation for filing the petition, failed to file petition in time, by itself, does not constitute a valid ground for condonation of delay. The conduct of the petitioners reflects gross negligence in prosecuting the remedy before this Court. No indulgence can be shown to them.

13.  In view of the above, finding no substance in this petition, we dismiss the same, being barred by time as well as bereft of merit and decline to grant leave. We make no order as to costs.

Petition dismissed.

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::Illegal Dispossession from Property in Pakistan…Law and Remedy

AMENDMENT IN SECTION 145 OF THE Cr. P. C.

Section 145 of the Criminal Procedure Code 1898 (Cr.P.C.) is designed to prevent a breach of peace over a dispute related to immovable property. An extract of the relevant provision is produced below:

“Section 145. Procedure where dispute concerning land, etc., is likely to cause breach of peace…(1) Whenever a District Magistrate, (or Sub-divisional Magistrate or an Executive Magistrate specially empowered by the Provincial Government in this behalf) is satisfied from a police-report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction he shall make an order in writing, stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.”

(2)………………………

(3)………………………

(4)………………………

Provided that, if it appear to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:”

This proviso has been the cause of some concern, in particular the period prescribed for restoration of possession i.e.  “within two months next before the date of such order”, as it is has been interpreted differently by different courts. The ambiguity in the language and its somewhat strict interpretation by the courts, at times results in the negation of a vested right. The issue was examined by the Supreme Court in the case of Muhammad Shafiq v Abdul Hayee (1987 SCMR 1371).

The brief facts of the case are that one Muhammad Shafiq was dispossessed of his possession on 1.11.1984. On 27.12.1984, Muhammad Shafiq initiated proceedings U/S 145 of the Cr.P.C. before the IIlqa Magistrate by filing an application. The Illaqa Magistrate called report, which was submitted by the police on 13.1.1985. The police officer also submitted on 1.2.1985 a report that till the decision in the case the shop be sealed. The learned Magistrate passed the preliminary order on 18.2.1985 for sealing the shop. Subsequently, by order dated 20.7.1985 the ejectment order passed on 18.2.1985 was withdrawn and the property was restored to Messrs. Rahimullah, Abdul Hayee and others who were in physical possession of shop on the date the preliminary order was passed. The extract containing the reasons given by the learned Magistrate is reproduced as under:

“ On 1.11.1984 Rahimuddin, Abdul Hayee and others wrongfully and forcibly dispossessed Muhammad Shafiq son of Muhammad Rafiq and others. On 18.2.1985 the learned Magistrate passed the preliminary order. It shows that the preliminary order was passed 3 months and 17 days after the date Muhammad Shafiq was wrongfully dispossessed. Muhammad Shafiq dispossessed of the property moved the Court to take action under this section within two months of his dispossession but my learned predecessor did not pass a preliminary order until after the expiry of 2 months of such possession. I do not find myself on good legal ground to dilate on the way the proceedings were drawn under 145, Cr.P.C. by my learned predecessor. But I feel at this stage, that legally this Court, in these circumstances, has no power to restore possession to Muhammad Shafiq and others who were wrongfully and forcibly dispossessed of their Shop No. U/281A, Mochi Bazar, Rawalpindi, on 1.11.1984; whereas the preliminary order was passed on 18.2.1985. The record shall show that on 18.2.1985 when the preliminary order was passed and even 2 months preceding this order Rahimuddin and Abdul Hayee etc. were in physical possession of the Shop No. U/281A situated in Mochi Bazar, Rawalpindi.”

A revision was filed in the Court of the Sessions Judge, Rawalpindi which was accepted by the Additional Sessions Judge with the following observation:

“I hold that the impugned order is illegal to the extent that the petition was not filed within time. I hold that according to the above-said citation referred to above by the learned counsel for the petitioner, the application Ex. P.A. was filed within sixty days on 27.12.1984 from the date 1.11.1984, the date of forcible and illegal dispossession of the petitioners by the respondents.”

A petition U/S 561-A of the Cr.P.C. was filed by the respondents. The petition was allowed by the High Court setting aside the order of the Additional Sessions Judge and restoring the order of the Magistrate and came to the following conclusion:

Inherent powers under section 561-A, Cr.P.C. are such available qua a revisional order, passed under section 439-A, Cr.P.C. as against any other order…finding of the learned Additional Sessions Judge, that since application under section 145, Cr.P.C. was made within two months of the dispossession of the respondents, it was within time is utter disregard of the relevant provisions of law, namely, first proviso to subsection (4) of section 145. It has also been noted that the final order passed by him is without jurisdiction because the respondents were not in possession of the disputed property within two months next before the making of the preliminary order. Order of the learned Additional Sessions Judge regarding restoration of possession, therefore, amounts to abuse of process of law and it is necessary to quash it with a view to securing the ends of justice. Accordingly, it is a fit case for exercise of inherent powers under section 561-A of the Cr.P.C”.

As a result of the ambiguity in law, litigation reached up to the apex court i.e. Supreme Court and was finally decided in the year 1987. As a result, the poor litigants had to wait for long and spend huge amounts of money on litigation. Similar situations were confronted by the high courts in Pakistan and India. A full Bench of the Indian High Court in case Ganga Bux Singh v Sukhdin (AIR 1959 All 141) observed:

“From the nature of the provision it is clear that the Magistrate has been given this power primarily to preserve peace. The individual rights are affected only incidentally.

The nature of the inquiry is quasi-civil. It is an incursion by the criminal court in the jurisdiction of the civil Court. It is, therefore necessary that this incursion should be carefully circumscribed to the extent absolutely necessary discharging the function laid down on the Magistrate of preserving the peace. The provisions of S.145 of the Code of Criminal Procedure make that amply clear. The Magistrate does not enquire into the merits of the claim of the parties or even their right to possess the subject of the dispute. He is only concerned with the question as to who was in actual physical possession on the question as to who was in actual physical possession on the relevant date. This also indicates that the starting point of the proceedings must be the date when he was satisfied that an apprehension of a breach of the peace existed and not when he received the first information.

It is clear that the parties have no right to get their dispute adjudicated upon by the Magistrate. Even on the receipt of the application the Magistrate may not think any action necessary.  He may not take any action at all under S.145 of the Code of Criminal Procedure”.

As regards the language and the scope of the proviso under consideration, the Indian High Court observed:

“The proviso itself does not vest any right in the party interested. This being a discretionary provision it is only just and proper that the discretion should be circumscribed within narrow limits and once circumscribed, the limits have to be strictly observed. The Legislature in its wisdom vested only a limited discretion and we can see no reason for further extending the period for the exercise of this discretion by deeming that the preliminary order was passed on the date of the original application.”

The same provision was considered by the Lahore High Court in the case of Fazal Din v The State (1982 Cr.L.J. p.277) as under:

“The principles of equity or the doctrines of nunc pro tunc and actus curiae neminem gravabit, cannot be applied to an order passed by a Magistrate under section 145 (4). No doubt contrary view was taken by Madras High Court in the case of Chunchu Narayana and others v. Karrapati Kesappa AIR 1931 Mad. 500, but this view was dissented by the learned Judges of Orissa and Andhra High Court in cases reported in Gangadhar Singh and others v. Shyam Sunder Singh AIR 1958 Orissa 153 and Padmaraju Subba Raju and others v. Padmaraju Koneti Raju and another AIR 1995 Andhra 99. As far as the superior Courts of Pakistan are concerned, the view which was prevailed throughout is that the provisions of section 145, Cr.P.C. are to be construed literally. Reference may be made to Ch. Muhammad Siddiq v. Sahibzada Sahibyar Khan PLD 1963 W.P, B.J. 26; Nawabuddin v. Abdul Ghafoor 1968 P Cr. L J 35 and Mst Zohra Bai alias Fatima Sughar v The State and another 1973 P Cr. L J 317.”

The Supreme Court of Pakistan while disposing of the criminal appeal in Muhammad Shfiq v Abul Hayee (1987 SCMR 1371), discussed various case law on the subject and observed:

“It is important to note that Legislature’s intervention was considered necessary and was forthcoming in the form of an amended proviso in the following words in the Code of Criminal Procedure enacted in India in 1973–

“Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two month next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of this order under subsection  (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1).”

It follows that notwithstanding the filing of the application within two months of dispossession if such dispossession not within two months of the order passed by the Magistrate under subsection (1) of follows section 145, Cr.P.C. restoration of possession cannot be ordered and an order to the contrary would not be in accordance with the provisions of the Code. In that situation the very first jurisdictional requirement for interference under section 561-A would be amply satisfied and the High Court was justified in invoking that power to correct the obvious legal error committed by the Additional Session Judge while interfering in revision with the order of the learned Magistrate. For the reason this appeal must be dismissed as without merit”.

It is, thus, obvious that the said proviso of section 145 of the Cr.PC is vague and liable to create mischief. It is therefore suggested that it may be amended on the lines of amendment carried out in India. This will save the litigants from avoidable hardships, expenses and delays and save the precious time of the courts. The existing and (proposed) amended versions are as under:

Existing:

“Provided that, if it appear to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been I in possession at such date”.

Proposed:

“Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under subsection (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub section (1).”

::Laws against Qabza Groups/Illegal Land Grabbers in Pakistan

IN THE LAHORE�HIGH COURT LAHORE

Case No: W.P. 25686/2011

“The Specific Relief Act, 1877 or the Illegal Dispossession Act, 2005. Unless a suit or a complaint is filed under these laws, no person can be dispossessed from private property.”

“Executive action, instructions or policy, no matter how well intentioned, cannot hold ground, unless they are backed by law. In a country governed by laws and not by men, good intentions of the executive must follow the law.”

Syed Mansoor Ali Shah, J:- Factual version of the case as narrated by the petitioner is that the petitioner is owner in possession of land measuring 4-Kanals�10-Marlas (“Property”) in the urban limits of Tehsil Sialkot whereupon the petitioner has raised/constructed a Cinema which is functioning in the name and style of “Mehfil Cinema.” As a matter of background, it is submitted that the Property was subject matter of a partnership between the petitioner and predecessor-in-interest of respondent No.4. Thereafter, the said partnership was dissolved and after prolonged litigation up to the level of august Supreme Court of Pakistan it was finally settled that the petitioner is owner of the Property.

2. Grievance raised in this petition is that the District Coordination Officer/Chairman District Task Force, Sialkot (respondent No.1) vide impugned order dated 03.11.2011 dispossessed the petitioner from the Property and handed over the possession of the same to respondent No.4.

3. Learned counsel for the petitioner contends as follows:

(a) That the DCO or the District Task Force does not enjoy any power under the Rules of Business or the Colonization of Government Lands Act, 1912 to dispossess the petitioner from private land.

(b) The guidelines/ departmental instructions (notifications) relied upon by the respondents cannot touch upon matters relating to private parties or provide for alternate dispute resolution through arbitration between private parties pertaining to private property.

(c) That at any rate the departmental instructions/ guidelines are invalid as they do not pass the test of conforming to the basic principles of natural justice as any action taken on the said guidelines may result in an unlawful identification of a person as an illegal occupant without there being�any provision of a fair opportunity of hearing which, is a sine qua non for passing an order adversely affecting the rights being enjoyed by a party. Reliance is placed upon cases reported as Messrs Shaheen�Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 2011 Lahore 120), Chief Justice of Pakistan Iftikhar�Muhammad Chaudhry�v. President of Pakistan through Secretary and others (PLD 2010 SC 61) and Federation of Pakistan and another v. Irfan Tariq�and others (2009 SCMR 1018).

(d) That the Land Revenue Act, 1967 has no application to the controversy involved as the Land Revenue Act is a fiscal�statute made for maintaining revenue record, assessment and collection of land revenue thereupon and for resolution of disputes between agricultural landlords and tenants thereon through the Revenue Courts. Furthermore, the revenue record is not a record of title when compared with declarations made by the superior courts of competent jurisdiction.

(e) That the action taken by the official respondents is a glaring example of violation of the principle of good governance enunciated by this Court, as well as, the Hon’ble Apex Court. Reliance is placed on Human Rights Case titled Tariq�Aziz-ud-Din�and others (2010 SCMR�1301), Ashfaq�Hussain�v. Government of the Punjab and others (2011 PLC (C.S.) 799), Iman Hussain�v. Water and Power Development Authority through Chairman WAPDA�and 4 others (PLD 2010 Lahore 546) and Muhammad Aslam v. Vice-Chairman and others (2010 PLC (C.S.) 266).

(f) That it is trite law that nobody can be prejudiced by wrongful act of a public authority, therefore, public authorities are liable to restore to the persons so prejudiced to the same position, which existed before the illegality was committed. Reliance is placed on Abdul Haq�and 2 others v. The Resident Magistrate, Uch�Sharif, Tehsil Ahmedpur East, District Bahawalpur and 6 others (PLD 2000 Lahore 101).

4. The District Coordination Officer (DCO), Sialkot also acting as Chairman District Task Force, Sialkot appeared, in person, before this court on 21.11.2011 and submitted that he had passed the impugned order under notification dated 30.12.2009  (“Notification-I”) issued by the Colonies Department, Board of Revenue, Punjab. Under the said notification, District Committees have been constituted against Qabza Groups/Illegal Land Grabbers. Relevant extracts of the terms of reference of Notification-I are:

iv. To examine the issue of massive public complaints against the new privately owned and publicized housing societies and other lands under unauthorized occupation and to identify measures to provide relief to public through the revenue department in a tangible, manner. The cases of widows and overseas Pakistanis will be given top priority. Establishment of Complaint Redressal�Cell in the office of District Coordination Officer under the chair of a “Focal Person.” Wide publicity to be given about the Complaint Redressal Cell;

v. Identification of Qabza�Groups and of revenue officers/officials and other Government officials who have been allegedly involved in land grabbing in collusion with Qabza Groups and to recommend departmental and criminal action against them;

vi. To examine the issue of massive public complaints against the new privately owned and publicized housing societies. To develop a phased strategy to deal with the menace of Qabza�groups with regard to state owned and private properties separately, and to identify measures to provide relief to public through the revenue department in a tangible manner. (Emphasis supplied)

5. District Coordination Officer failed to show under what law the Board of Revenue, Punjab, had issued Notification-I. Member (Colonies), Board of Revenue, Punjab was also summoned who appeared in the Court today and submitted that notification dated 30.12.2009 has been followed by another notification dated 18.05.2011 (“Notification-II”) issued by the Board of Revenue,

Punjab and after placing it on the record referred to one of the terms of reference of the said notification which states as follows:-

On receipt of a private complaint, the Committee shall immediately proceed to redress the grievances and resolve the issue under available legal frame work and if required, resort to alternate dispute resolution mechanism through arbitration.

6. Member (Colonies) submitted that both these notifications were in the nature of guidelines to facilitate the working of the District Committees and the purpose was to identify Qabza�Groups in case of private lands and after identification of the same to avail the remedy available under the existing legal framework. Member (Colonies) submitted the DCO�or Chairman District Task Force cannot directly take action against a citizen under the said Notification and did not support the impugned order passed by DCO/Chairman District Task Force. Learned Law Officer also supports the contention of the Member (Colonies), Board of Revenue, Punjab.

7. I have heard the arguments of the counsel and perused the record including Notification-II placed before me by Member (Colonies).

8. In order to examine the legality of the impugned Order dated 3-11-2011 passed by Respondent no.1, the legality of the abovementioned notifications issued by the Board of Revenue, Punjab, which allegedly empowered the DCO to pass the impugned order, also require to be examined. In order to judicially review the impugned order and the notifications, I do not require to comment on the veracity of the claim made by respondent no.4, therefore, without touching the merits of the private dispute between the petitioner and Respondent no.4, I venture to discuss and analyze the scope and legality of the impugned order and its supporting notifications.

9. The questions that need to be answered in this case are:

a. Whether, under the law, the Board of Revenue, Punjab was authorized to issue Notifications dated 30-12-2009) (“Notification-I”) and 18-5-2011 (“Notification-II”) relating to private land and private parties? and

b. Whether the District Coordination Officer/Chairman District Task Force, Sialkot could dispossess or deprive a person from his private property through an executive order under Notification-I?

10. Notification-I dated 30-12-20091 titled as: “CONSTITUTION OF COMMITTEES AGAINST QABZA�GROUPS/ILLEGAL LAND GRABBERS.” has been issued by the Colonies Department of the Board of Revenue, Punjab whereby various Committees have been constituted against Qabza�Groups/Illegal Land Grabbers. The Provincial Committee, being the apex committee under the said notification is to provide policy guidelines and steer initiative against the Qabza�Groups, monitor the performance of other committees and provide support at provincial level in combating Qabza�Groups/illegal land grabbers and finally to examine the recommendations/ proposal on legal reforms and finalize these for implementation. Under this notification, the District Committee is headed by DCO�(Chairman) and, inter alia, comprises Chief City Police Officer (CCPO) or District Police Officer, EDO (Revenue), DO (Revenue), etc. The relevant Terms of Reference of the District Committee are as follows:

ii. To examine the issue of massive public complaints against the new privately owned and publicized housing societies and other lands under unauthorized occupation and to identify measures to provide relief to public through the revenue department in a tangible, manner. The cases of widows and overseas Pakistanis will be given top priority. Establishment of Complaint Redressal�Cell in the office of Commissioner under the chair of “Focal Person”. Wide publicity to be given about the Complaint Redressal Cell;

iii. Prepare a list of all pending cases of illegal/unauthorized occupation of Government land within the Divisions and carve out action plan to rectify the situation. As regards private land, a separate list will be maintained upon the complaints received;

iv. Identification of Qabza�groups and of revenue officers/officials and other Government officials who have been allegedly involved in land grabbing in collusion with Qabza�groups and to recommend departmental and criminal action against them. The Divisional Commissioners, in consultation with RPOs, will identify the gangs involved. Detention of chronic cases will be moved to the Home Department.

11. Member (Colonies), who appeared in person, submitted that latest position in the matter is governed by Notification-II2�(it is pointed out that Notification-II does not superseded Notification-I). The said notification titled ACTION AGAINST QABZA�GROUPS/MAFIA provides for constitution of Sub- Committees in the Districts “to deal with privately owned land grabbing issues.” The Terms of Reference, inter-alia, of the said Sub Committee are:

iii. On receipt of a private complaint, the Committee shall immediately proceed to redress the grievances and resolve the issue under available legal frame work and if required, resort to alternate dispute resolution mechanism through arbitration.

12. Member (Colonies) further submitted that both the notifications are mere guidelines and action can only be taken against Land Grabbers or Qabza groups in accordance with law under the prevalent legal framework or the committees could additionally resort to alternate dispute resolution through arbitration. Member (Colonies), as well as, the Learned Law officer did not defend the impugned order dated 3-11-2011 passed by Respondent no.1 and submitted that the matter ought to have been dealt with in accordance with the legal framework available i.e., either by filing a suit for possession or a complaint under the Illegal Dispossession Act, 2005. From the above it is clear that the impugned order of Respondent no.4 traverses and violates the power vested under the Notifications.

13. Proceeding further, it is important to analyze whether the above notifications could have been lawfully issued by the Board of Revenue, Government of the Punjab. Under Notification-I, inter alia, District Committees have been set up to deal with the Land Grabbers and Qabza Groups over Private Lands and to “provide relief to public through the revenue department in a tangible manner” and under Notification-II it is stated that the Committees shall “resolve the issue under available legal framework” or “resort to alternate dispute resolution mechanism through arbitration.” Both the notifications, issued by Secretary (Colonies), Board of Revenue, Punjab, fail to refer to the governing law under which they have been issued. Respondent no.1 and the learned Law officer also failed to show under what law the said notifications have been issued. Counsel for the private respondent, however, submitted that the said notifications have been issued under Rule 67-B of the Land Revenue Rules, 1968.

14. Perusal of Board of Revenue Act, 1957, Land Revenue Act, 1967, Colonization of Government Lands (Punjab) Act, 1912 and Rules of Business of the Provincial Government show that Board of Revenue is not empowered to deal with disputes relating to Qabza Groups/Land Grabbers over private land or to resolve disputes between private parties arising out of private land through arbitration. At the most, section 32 of the Colonization of Government Lands (Punjab) Act, 1912 provides that when the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, forthwith re-enter upon the land and resume possession of it and take of all crops, trees and buildings on behalf of the government without compensation. Rule 67-B of the Land Revenue Rules, 1968 read with sections 117 and 122 of the Land Revenue Act, 1967, provide that a land owner can be evicted if found in wrongful possession of a land as a result of demarcation proceedings taken under section 117 of the Land Revenue Act, 1967. The Collector hearing the said application moved under section 122 of the Land Revenue Act, 1967 may direct fresh demarcation proceedings or order eviction of the landowner who is in wrongful possession of the land. This power is qualified by the proviso to sub-rule 5 of Rule 67-B which provides that where proceedings involve substantial question of title or an intricate question of law, the collector shall refer the matter to the civil court.

15. From the above it is clear that Notifications-I and II have no legal cover to justify their existence, to the extent of the private dispute arising from private land. These notifications cannot even pass as guidelines or administrative instructions as the very subject matter of the said notifications (to the extent of private land and private disputes) is ultra vires the laws governing the working of the Board of Revenue. Resultantly, impugned order dated 3-11-2011 passed by DCO and Notifications-I and II issued by the Board of Revenue, Punjab have no legal sanction and are therefore declared to be without lawful authority.

16. Our constitutional democracy rests on the fundamental principle of RULE OF LAW. Article 4 of the Constitution is its principal manifestation. The said article provides that “to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.” This means that every citizen and every person for the time being in Pakistan enjoys the protection of laws of the land. These laws and the Constitution are like a protective shield guarding the life, liberty, reputation, body and property of the persons within Pakistan. Any action adverse to the rights of a person, must, therefore, be through the mechanism or in accordance with the very laws which protect the said persons. To be treated in accordance with law is to proceed against a person strictly under the law which provides protection to the person in the first place. Case in point, in the instant matter, is the Specific Relief Act, 1877 or the Illegal Dispossession Act, 2005. Unless a suit or a complaint is filed under these laws, no person can be dispossessed from private property.

17. The right to fair trial under article 10A�further buttresses article 4. The right to fair trial provides for the determination of civil rights and obligations of a person through a fair trial and due process. Dispossession of the person from property without recourse to the available law or in accordance with law also offends article 10A and deprives the petitioner of his right to fair trial and due process. Article 23 of the Constitution guarantees the petitioner the right to hold and enjoy his property subject to reasonable restrictions imposed by law. The two notifications and the impugned order do not pass the test of “reasonable restrictions” under article 23 of the Constitution, as they are not imposed under the law, hence the impugned order as well as the notifications to the extent of private lands offend Article 23 of the Constitution.

18. It has been pointed out by the respondents, rather proudly, that the initiative against Qabza�Groups & Illegal Land Grabbers under the Notifications are well intentioned�and has done a lot of public good. Let us not forget that road to hell is also paved with good intentions. The executive in their over zealousness to do good have lifted their eyes off the law. Executive action, instructions or policy, no matter how well intentioned, cannot hold ground, unless they are backed by law. In a country governed by laws and not by men, good intentions of the executive must follow the law.

19. For the above reasons the impugned order dated 03.11.2011 passed by respondent No.1 is set aside with the direction that possession of the land in question be restored to the petitioner forthwith. Notifications-I and II dated 30.12.2009 and 18.05.2011, respectively, issued by the Board of Revenue, Punjab, are also set aside to the extent of private lands and private disputes as having been issued without lawful authority.

20. Respondent No.1 has blatantly offended the Constitution and the fundamental rights of the petitioner besides having recklessly applied Notification-I. Respondent no.1 as Chairman District Task Force, Sialkot is, therefore, burdened with compensatory costs in the sum of Rs.50,000/- which shall be deposited with any civil society organization in Punjab certified by the Pakistan Centre of Philanthropy (PCP) (www.pcp.org.pk) within one month from today. Reliance is placed on Kawas�B. Aga�and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others, (PLD 2010 Karachi 182), The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir�and 2 others, (1998 SCMR�2386), Province of Sindh�through Secretary, Home Department and others v. Roshan Din and others, (PLD 2008 S.C. 132), Inayatullah�v. Sh. Muhammad Yousaf�and 19 others, (1997 SCMR�1020), Mst. Afsana�v. District Police Officer, (Operation), Khairpur�and 5 others, (2007 YLR�1618) and M.D. Tahir, Advocate v. Federal Government and others, (PLD 1999 Lahore 409).

21. This petition is allowed in the above terms alongwith costs.

(Syed Mansoor Ali Shah)

Judge

::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 2005 in Pakistan…Compare to Indian Land Grabbing Law

LAHORE: A full bench of the Lahore High Court has recommended to the Federal Justice Ministry to examine India’s Andhra Pradesh Land Grabbing (Prohibition) Act 1982 to suitably mould or recast the Illegal Dispossession Act 2005.

Justices Asif Khosa, Shabbar Raza Rizvi and Tariq Shamim observed that Illegal Dispossession Act 2005 was not the finest example of legislative draftsmanship because it did not provide any right to appeal to a convict. The bench declared right to appeal an Islamic right.

The bench observed that this act contemplates probe by police without involving revenue authorities. In most of the cases, the revenue authorities are more relevant than the police, the bench held.

The bench made these recommendations while setting aside conviction of five people under this act. The bench held that this act was restricted in its scope and is applicable to only those cases where a dispossession from immovable property had allegedly come about through a group of persons, having the credentials or antecedents of property grabbers, qabza groups or land mafia.

The bench held that the sessions court while trying anybody under this act should satisfy that the accused had the credential of property grabbers. staff report