RAHIM TAHIR vs AHMED JAN and 2 others

' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution has been directed against the judgment dated 16-6-2006 passed by a learned Judge in Chambers in the High Court of Sindh at Karachi in a criminal revision arising out of a complaint filed by the petitioner under Illegal Dispossession Act, 2005.

2. The short facts leading to this petition are that the petitioner holding leasehold rights of the plot bearing No,872 Sector II, Type 'A' measuring 200 sq. Yards situated at Sultanabad Town, Manghopir Road, Karachi (West) vide registered lease deed dated 14-6-1987, filed a complaint under Section 3(2) of Illegal Dispossession Act, 2005 for appropriate action against the respondent, an illegal and unauthorized occupant of the plot. Learned Sessions Judge, Karachi (West) after obtaining report from the S.H.O. Of the concerned police station, dismissed the complaint vide order dated 19-4- 2000 with the observation that the controversy between the parties pertaining to the possession of the premises, may not fall within the ambit of Illegal Dispossession Act, 2005 and the order passed by the learned Sessions Judge was further maintained by the High Court of Sindh, at Karachi, by dismissing the criminal revision filed by the petitioner under section 439, Cr.P . C .

3. The jurisdiction of learned Sessions Judge, Karachi, West, under Illegal Dispossession Act, 2005, was invoked on the ground that respondent was unauthorized occupant of the premises, whereas the case of the respondent, on the other hand, was that he having entered into agreement to sell dated 20-6-2003, with the petitioner through his attorney, Yousaf Ali, purchased the property for valuable consideration and was in lawful possession of the premises in his own right as owner.

However, the petitioner while denying the claim of respondent, stated that no doubt he had appointed Yousaf Ali as his attorney vide registered deed dated 13-1-1974, but subsequently, the power of attorney of Yousaf Ali was revoked vide registered deed dated 2-4-1998, and he was no more attorney of the petitioner, therefore, the agreement to sell in question was not a legal document to create any right or interest in favour of respondent in the property. In view of the factual position narrated above, the leasehold right, of the petitioner of the plot in question, the execution of a registered power of attorney in favour of Yousaf Ali and its subsequent revocation, being not disputed, the authenticity of the documents referred above, was not questionable, therefore, the crucial question requiring determination would be as to whether respondent was an unauthorized occupant in terms of Illegal Dispossession Act, 2005, or not. The expression 'occupier' in the Act, means 'a person who is in the lawful possession of the property' and `owner' means the person who actually owns the property at the time of dispossession otherwise through process of law. In the present case, the respondent having taken over the possession in an, unauthorized manner, subsequent to the tiling of the complaint against him by the petitioner under Illegal.

Dispossession Act, 2005 filed a suit for specific performance of the contract on the basis of an agreement which has no legal sanction and recognition.

4. The factual position in the background, would apparently lead to the conclusion that possession of the property with the respondent, was not lawful. The agreement on the basis of which, respondent set up his claim of lawful possession, was executed by a person who was neither owner of the property nor he was holding a valid power of attorney of the owner and consequently, the respondent was in possession of the property without lawful authority in terms of section 3 of the Illegal Dispossession Act, 2005, which is reproduced hereunder for better appreciation of the proposition:- "3. Prevention of illegal possession of property, etc.---(1) No one shall enter into or upon any property to disposess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property.

(2) Whoever contravenes the provisions of the subsection (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 provision of section 544-A of the Code."

There is no cavil to the legal position that Illegal Dispossession Act, 2005 having no retrospective effect, may not be applicable. To the cases of unauthorized occupants pending before any other forum on the date of promulgation of the above Act but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of this Act, the same would squarely fall within the ambit of this Act. The expressions "grab, control or occupy" used in section 3 of the Act cannot 'be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of the Act rather all cases of B illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums.

5. In consequence to the revocation of the power of attorney of Yousaf Ali by the petitioner vide registered deed, he had no authority to act as such, therefore, neither the agreement to sell executed by him on behalf of petitioner in favour of respondent would create any right or interest of respondent nor Yousaf Ali had any lawful authority to deliver the possession of the property and consequently, the respondent would not be considered lawful occupier of the property. The mere filing of the suit subsequent to the filing of complaint on the basis of a document C which has no legal foundation, would be of no significance to protect the illegal and unauthorized possession.

6. The Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum; The respondent admittedly was inducted into the premises by a person, who was neither owner nor a lawfully constituted attorney of the owner to have any authority to enter into an agreement of sale on behalf of the owner or deliver the possession of the property to the respondent and thus apparently, he was an illegal and unauthorized occupant of the premises.

The contention that Illegal Dispossession Act, 2005, is not applicable to an illegal occupant, who was in occupation of the premises prior to the date of the promulgation of the Act, has no substance. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants.

7. In the light of foregoing reasons, we convert this petition into an appeal, set aside the judgment of the High. Court and remand the case to the learned Sessions Judge, Karachi, West, for decision of the compliant on merits in accordance with law. There will be no order as to cost.