ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C.P. No.D-668 of 2020
Petitioners : Qaimuddin
Mehar and others
Through Mr. Muhammad Javed Ahmed Maitlo,
advocate
Date of hearing : 15.07.2020
Date of Order : 15.07.2020
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O R D E R
ADNAN-UL-KARIM MEMON, J: Through this petition, the
petitioner is asking for setting aside the order dated 05.03.2020 passed by the
learned Presiding Officer, Anti-Encroachment Tribunal, Sukkur in Misc.
Application No.14 of 2020 (Re-Ghous Bux Shaikh v. Commissioner Sukkur &
others) filed by Respondent No.01, whereby the learned Judge has ordered for
removal of illegal encroachment (if any) from the Government Property i.e.
Village Ashaish land.
2.
Mr. Muhammad Javed Ahmed, learned Counsel for the petitioner has mainly contended that the judgment of
trial Court is against the law and facts; that the trial Court without
recording evidence of either party passed the impugned judgment, which is not
warranted under the law; that the impugned judgment is based upon misreading
and non-reading of facts, as such, is liable to be set-aside and matter may be
remanded back for recording evidence of both the sides; that learned
Anti-Encroachment Tribunal Sukkur vide
judgment dated 05.03.2020 directed the Assistant Commissioner (Revenue) Pano Aqil to remove the illegal encroachment from the
Government property if any without
ascertaining the fact that the land in question belongs to village; that the
impugned order dated 05.03.2020 is
against the basic spirit of law thus liable to be set aside; that the learned
trial Court has no jurisdiction to adjudicate the matter under Sindh Public
Property (Removal of Encroachment) Act, 2010. In support of his contention, he relied upon
the report of the Station House Officer Police Station Mubarakpur and incharge
Station House Officer Anti-Encroachment Sukkur and argued that the subject land
belongs to village Dakhan Mahar and such entry was incorporated in the record
of rights. Learned counsel heavily relied upon the Section 14(3) of the Act,
2010 and argued that the villagers are residing there since their forefathers;
that no evidence of the parties has been recorded and the impugned order is
passed without ascertaining the factual position of the case; that the learned
Tribunal failed to appreciate the documentary evidence brought on record in
favour of the petitioner. He lastly prayed for allowing the instant petition.
3. We have heard the learned counsel for
the petitioner at considerable length and also reviewed the record available
before us.
4. The allegation in the present case
against the petitioner is that
subject land which is reserved for village Ashish (Govt: Land) of village Dakhan Mahar where different tribes/castes viz
Shaikh Community and Mahar community are living/settled,
where they constructed their houses and
cultivating some portion of land adjacent
with village Dakhan Mahar Taluka Pano
Akil.
5. We
have noticed that Mukhtiarkar Revenue Pano Akil submitted his report before the learned tribunal with
the assertion that S. NO.207, 83, 82, 85 and 84 of Deh Dhand Marai is entered as Na-Qaboli
(GOVERMENT) Land vide entry NO;41 Dated 1984-1985ofVF-V11-A
and as par Colonization of Government Land Act
1912 if any person cultivate on Government village Ashish Land, the Re-Mokal fine will be imposed in
Jamabandi, which factum
prima-facie show that the subject land is a public Property and under Section
2(o) of Sindh Public Property (Removal of Encroachment) Act, 2010 “Public
Property” is defined, which means a building, land, place or premises vesting,
in or under the management or control of Government, local council, autonomous
body or registered cooperative society or such other authority.
6. To understand the rule position of the
case, it is expedient to have a glance on various Sections of the Act, 2010.
Section 11(1) provides that no Civil Court shall have jurisdiction to entertain
any proceedings, Bar of jurisdiction and abatement of suits, 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 to be done under this Act. (2) All suits, appeals and applications
relating to, encroachment and dispute that any property is not a public
property or, that any lease or license in respect of such property has been
determined, for the purpose of this Act, shall abate on coming into force of
this Act. Provided that a party to such suit, appeal or application may; within
seven days of 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. Section
13 provides 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
license in respect of such public property has not been determined for the
purpose of this Act. Section 14 (1) provides that Tribunal shall decide any
suit or application in such manner and in accordance with such procedure as may
be prescribed. (2) Any order made by the Tribunal which conclusively determines
the rights of the parties with regard to all or any of the matters in
controversy shall be final and binding on the parties. (3) The Tribunal shall
have power of a Civil Court under the Code of Civil Procedure, 1908 (Act V of
1908). (4) The proceedings before the Tribunal shall be judicial proceedings
within the meaning of sections 193 and 228 of Pakistan Penal Code (Act No. XLV
of 1860).
7. We have perused findings of learned
Tribunal, which explicitly show the following factual position of the case:-
“Hence, keeping forth the above discussed position and
reports of Revenue officer, I am of the
view that illegal encroachment from the government
property i.e. village aasiash land is liable to be removed, therefore, Assistant Commissioner (Revenue) Pano Akil
being authorized officer of Revenue
department is directed to remove the Megal encroachment
(if any) from the government property/village Asaish land of Deh Dhand Marhari PO Thikratho Taluka Pano Akil
District Sukkur village after
verification of record of rights by following the provisions of The Sindh
Public Property (Removal of Encroachment) Act
2010 under intimation to this tribunal”
8. In
our view the Ashaish Land is amenity for villagers, which is a public Property,
this issue of conversion of an
amenity into personal use had already
been discussed and adjudicated by the Honorable Supreme Court in the case of
Ardeshir Cowasjee vs. Karachi Building Control Authority (1999 SCMR 2883). It
was held that conversion of an amenity plot is illegal. The encroachment of
amenity plot cannot be allowed to sustain under the law, which aspect, the
official respondents have to look into and restore its position in accordance
with law. The encroachment of an amenity plot to another use is treated as an
abuse of discretion and therefore is unlawful for the simple reason that the
paramount object of modern city planning is to ensure maximum comforts for the
residents of the city by providing maximum facilities and that a public
functionary entrusted with the work to achieve the above object cannot act in a
manner, which may defeat the above objective and deviation from the planned scheme
will naturally result in discomfort and inconvenience to others.
9. Without prejudice to above, at this
juncture, we would like to refer the another case, reported as 2014 SCMR 1611,
it was held with regard to manner of exercise of powers by an authority
regardless of its status that:
“13. Looking at the
powers of the Chief Minister for allotment of public property, here a reference
to the case of Iqbal Hussain v. Province of Sindh through Secretary, housing
and Town Planning Karachi and others (2008 SCMR 105) will be useful wherein
this court has observed as under:- “3. We are in complete agreement with the
view taken by the Division Bench of the High Court when it says that public
functionaries including the Chief Minister can deal with the public property
only under a prescribed procedure within the parameters of law under a duly
sanctioned scheme and not at their whims. Even if such order was passed by the
Chief Minister in favour of the petitioner, authorities concerned would not be
bound to follow such illegal and void order of a superior authority. It would
rather be in the exigencies of good order of administration and their duty to
point out to the high ups that they were acting in excess of their lawful
authority and in violation of law and the constitutional mandate. They may be
apprised of the legal consequences flowing from such acts. The compliance of
any illegal and arbitrary order is neither binding on the subordinate forums
nor valid in the eyes of law. Reference in this behalf may be made to decision
of this Court in (i) Abdul HaqIndhar v. province of Sindh (2000 SCMR 907 and
(ii) Taj Muhammad v. Town Committee (1994 CLC 2214).”
10. It is suffice to say that what is
prohibited by the Honorable Supreme Court of Pakistan cannot be sought to be
permitted by any other Court or authority, whosoever, it may be. Since the
relief which is being sought in all senses shall amount to permitting what is
prohibited/stopped by Honorable Supreme Court which cannot be granted to the
petitioner because the law is clear that one cannot obtain directly, cannot obtain
indirectly. Thus, now we can safely conclude that instant petition from all angles
is incompetent, in view of Article 189 of the Constitution, and the principles
enunciated by the Honorable Supreme Court for removal of encroachment from public
property.
11. In the light of decision rendered by the
Honorable Supreme Court in the case of Ardeshir Cowasjee vs. Karachi Building
Control Authority (1999 SCMR 2883) and order passed by the learned Tribunal in
the matter, we are of the considered view that the official respondents are
under legal obligation to comply the directives of the Honorable Supreme Court
passed in the cases of removal of illegal encroachment of amenity plots /
public properties from its occupants.
12.
The petition stands disposed of in the above terms with no order as to costs.
JUDGE
JUDGE