MUHAMMAD FARID and others vs MUNICIPAL COMMITTEE, ABBOTTABAD

ORDER

1. ' MAMOON KAZI, J.---The petitioner No,1, being sub-lessee of plot measuring about 1322 sq. Feet, which had initially been leased out to the second petitioner by the Municipal Committee, Abbottabad (respondent No,1) for the period from 1-7-1982 to 30-6-2002, vide registered lease deed, dated 9-7-1987, filed a suit before the District Judge, Abbottabad-cum-Tribunal, to challenge action taken by respondent No,1 and the Government of N.-W.F.P. (respondent No,2), under the provisions of the North-West Frontier Province Public Property (Removal of Encroachments) Act, 1977. Although, after obtaining the sub-lease of the said plot, the petitioner No,1 had constructed shops thereon, but admittedly, no notice as required by section 3 of the said Act, had been served upon the said petitioner. However, the petitioner No,2 was informed by notice that on account of the alleged unauthorised occupation of the said plot, he was liable for removal of the superstructure within three days from the date of the issue of notice. Therefore, the said shops were sealed by the respondent No,1.

2. ' The suit was contested by the said respondents, but the Tribunal vide its judgment dated 18-2- 1997, came to a conclusion that the petitioner No,1 was also entitled to notice under section 3 of the said Act which had not been done and the said petitioner was therefore, entitled to receive compensation on account of hasty sealing of the shops, which had resulted into damage to the perishable articles lying at the shops.

3. ' The said judgment was assailed by the respondents Nos.1 and 2 before the Peshawar High Court under its Constitutional jurisdiction, which has resulted in setting aside of the said judgment by the High Court. It was concluded by the High Court that the Tribunal had erroneously exercised its jurisdiction in the matter as neither the petitioner No,2, who was the original lessee had challenged the action before the tribunal nor any compensation had been claimed by the other petitioner from the Tribunal. Consequently, the Tribunal had exceeded its jurisdiction by granting relief which had not been sought by the petitioner.

4. ' Mr. Muhammad Ibrahim Satti has argued that section 3 of the said Act visualises issuing of notice to unauthorized occupant of the public property before taking any further action against him and therefore, the action of the respondent No,1 was in clear violation of the said provisions as no notice had been served on the petitioner No,1. It was further argued that there was no legal bar in awarding compensation to the petitioner No,1 by the Tribunal notwithstanding absence of any specific provision to such effect incorporated in the said Act. As regards absence of such prayer, the contention of the learned counsel was, that justice had been done to the petitioner No,1 by the Tribunal as the former had actually suffered loss on account of the said action by the respondents, therefore, the High Court should have declined to interfere in the exercise Of its Constitutional jurisdiction.

5. ' We however, find no force in any of the said contentions. The expressions "encroachment" and "unauthorized occupant" have been defined by clauses (c) and (j) respectively in section 2 of the said Act. "Encroachment" has been defined as "unauthorized occupation, temporary or permanent, of public property". The expression "unauthorized occupant" has been further defined to mean: "Unauthorized occupant" means a person who has made encroachment on, or is in occupation of, any public property without the express permission or authority of a competent authority and includes--

(i) a lessee or licensee who after the expiry of the lease or licence or on determination of such lease or licence, continues to remain in occupation of any public property;

(ii) a person inducted into any public property by the lessee or licensee thereof; and

(iii) every member of the lessee's or licensee's family who remains in occupation of any public property after the expiry of the period of lease or licence or after the determination of the lease or licence in respect of the same.

(iv) Although, the occupation of the plot by the petitioner No,1 was an encroachment within the definition of the said expression as sub-lease had been executed by the petitioner No,2 in favour of the petitioner No,1 admittedly without permission of the Government, but it was the petitioner No,2 who had violated the terms of lease by putting the petitioner No,1 into possession unauthorisedly.

6. As is visualised by Rule 7 in the North-West Frontier Province Local Council (Property) Rules, 1980, any immovable property of a Local Council may be leased, alienated etc. By the Chairman on his own authority, if the period of the lease does not exceed one year and with the previous sanction of the Local Council if the period of lease is more than one year but not more than three years.

7. However, in case of lease granted for a period, more than three years, the previous sanction of Government would be required. In the present case, the lease being for a period, exceeding three years, the sub-lease could not have been created in favour of the petitioner No,1 without the previous permission of the Government as required by Rule 7. Consequently, the lease of the petitioner No,2 had been cancelled by the respondent No,1 for violation of the terms of lease. No doubt, it was the petitioner No,1 in this case who initially was adversely affected by the said notice, but want of service of notice on the said petitioner could not vitiate the said action as there were no rights between the respondent No,1 and the petitioner Nu.

1. Although, the said petitioner could also be served with such notice, but by service of notice on the petitioner No,2, the requirements of section 3 of the said Act appear to have been fully satisfied.

8. ' Be that as it may, but the petitioner No,1 did not question the action directly before the High Court, but it first challenged the action before the Tribunal which was appointed under section 12 of the said Act. Section 13 of the said Act indicates that: "A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purpose of this Act". Section 11 of the Act which bars jurisdiction of Civil Courts provides that: 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 licence 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 under this Act.

(2) All suits, appeals and applications relating to encroachment or disputes referred to in subsection (1) and pending in any Court shall abate on the coming into force of this Act: ' Provided that 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 licence in respect of such public property has not been determined.

9. 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 licence 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 visualised 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 jurisdiciton 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.

10. ' 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.

11. ' We are, therefore, of the view that the judgment of the High Court is not open to exception and the Tribunal had no jurisdiction in the matter, muchless to award compensation to the petitioner No,1 under the circumstances of the case.

12. ' In the result, the petition is dismissed and leave is refused.