IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constitution Petition No D 248 of 2021

(Azizullah Panhwar Versus Ali Nawaz Panhwar and others)

Before:

Mr. Justice Muhammad Saleem Jessar

Mr. Justice Nisar Ahmed Bhanbhro

Petitioner: AzizullahPanhwar

Through Mr. Zafar Ali Malghani, Advocate.

Respondent No.1: Ali Nawaz Panhwar

Through Mr. Habibullah G. GhouriAdvocate.

Respondents No.2 to 7: Through Mr. Liaqat Ali Shar

Additional Advocate General, Sindh.

Date of hearing: 24-04-2025

Date of Order: 24-04-2025

ORDER

Nisar Ahmed Bhanbhro J.-Through instant petition, the petitioner (Defendant) has challenged the order dated 12-03-2021 (impugned order) passed by learned Presiding Officer Anti-Encroachment Tribunal, Larkana, (Tribunal) in suit No 44 of 2020 Re Ali Nawaz Panhwar Versus Azizullah Panhwar and others, whereby the suit filed by Respondent No 1 (Plaintiff) is allowed.

2. The facts giving rise to the present petition are that Respondent No.1 Ali Nawaz Panhwar(Plaintiff)filed a suit for declaration and removal of encroachment of public property under section 14 of the Sindh Public Property (Removal of Encroachment) Act, 2010.Plaintiff averred that defendant was out law, he has encroached upon survey No 238 (3-18 acres) of Deh Potho Ibrahim Taluka Kambar (Suit Property). That the Suit property is a public property reserved for Bahar Shah Graveyard, but Defendant demolished graves and constructed poultry farm, dug a fish farm and used the land of graveyard for agriculture purpose.

3. On noticesDefendant filed written statement, wherein he denied the allegations leveled in the plaint and contended that he had not encroached upon any public property and plaintiff had filed the suit out of personal grudge as he had encroached upon a water course situated in village Abdullah Panhwar on which the petitioner filed Petition before Tribunal.

4. Defendant No 2 /Mukhtiarkar(Revenue) Kamber filed its report dated 16.102.2020, wherein he stated that Survey No.238 required a proper demarcationto determine the status of Suit property, for which he had written a letter to Survey Superintendent Larkana. He sought indulgence of Tribunal to issue directions to Survey Superintendent Larkana to provide technical assistance for measurement of Suit Property.

5. Tribunal vide its letter dated 11.02.2021 directed Survey Superintendent Larkana for visit of Suit Property and submission of report. Survey Superintendent Larkana visited the Suit Property in presence of parties and conducted measurement. Survey Superintendent in its report dated 22-02-2021 submitted to Tribunal, stated that measurement of Suit Property was done in presence of parties. There were 7/8 graves in the East side of road in Suit Property, houses, agricultural land, one damaged poultry farm which was not in running condition and fish farm found within the premises of Suit Property. No record of graveyard or any entry is available in the revenue record to show that Suit Property was reserved for graveyard. The Report shows that Suit Property is a Na Qabooli Land means Public Property.

6. The Inspector of Revenue City Survey Larkana in its report dated 18-02-2021 submitted that suit Property was Naqabooli land and there was no entry regarding graveyard in record of rights. However, there were 7/8 graves, houses, agricultural land and a fish farm in the suit property.

7. On receiving the reports, Tribunal proceeded with the suit and decided the matter in a summary manner vide impugned order, and issued following directions:

i. The private defendant No.1 is directed to vacate and demolish encroachment made by him from S. No.238 of Bahar Shah Graveyard of Deh Potho Ibrahim Taluka Kamber, within 40 days from date of this order and handover its peaceful and vacant possession to the Mukhtiarkar Taluka Kamber.

ii. And if, encroacher failed to do so, after stipulated period, the Assistant Commissioner/Deputy Director Anti-Encroachment Force Kamber and Mukhtiarkar Taluka Kamber, jointly shall demolish said encroachments, and retrieve its possession and recover costs of demolitions and removal of structure from the above defendant/encroacher or whoever may be, as arrears of land Revenue.

iii. Recovered costs of demolition and Removal of Structure and arrears of rent from encroachers shall be deposited in Sindh Government Treasury, as land Revenue.

iv. The concerned police shall provide fool proof security to officials at the time of Anti-Encroachment drives as and when required.

v. In future, if same state land and public property is encroached, the land officials defendants specially, i.e the Assistant Commissioner/Deputy Director Anti-Encroachment Force Kamber and Mukhtiarkar Taluka Kamber, would be held responsible and would be prosecuted under section 3(4) of Sindh Public Property (Removal of Encroachment) Act, 2010, and other prevailing law of land.

vi. The Deputy Commissioner Kamber Shahdadkot/ Director Anti-Encroachment Cell Kamber Shahdadkot, shall execute this order.

8. Learned Counsel for the petitioner (Defendant) contends that the impugned order was passed without providing an opportunity of proper defense. The Suit Property under possession of Defendant was not a public property, there were number of houses constructed on Suit Property which was Naqabooli land reserved for village asaish. He contended that all the occupants of suit property 238 were not made party in the proceedings, but order for removal of encroachment was issued by Tribunal. He contended that Tribunal summarily decided the suit without framing issues and recording of evidence which is contrary to law. He contended that allegation of Plaintiff that Suit Property was reserved for graveyard could not be proved, therefore a Decree could not be issued on the basis of incorrect pleadings. He prayed for setting aside the impugned order.

9. Learned Counsel for (Plaintiff) /Respondent No.1 contended that Tribunal decided the suit in accordance with law. Tribunal conducted inquiry into the status of Suit Property. The Reports of Official Respondents proved that Defendant No 1 / Petitioner was issued. The impugned order was passed in accordance with law and the same did not suffer from illegality or irregularity thus did not require interference by this Court. He prayed for dismissal of the petition

10. Learned Additional Advocate General supported the impugned order and contended that petitioner occupied the public property and vacation orders were within the premise of law, the petition is misconceived and merits dismissal.

11. Heard Learned Counsel for parties and perused material available on record.

12. Issue involved in the present petition is powers and jurisdiction of Tribunal constituted under Sindh Public Property (Removal of Encroachment) Act, 2010 (the Act). Whether the Tribunal while exercising its powers under section 13 and 14 of the Act can entertain a suit of a person complaining of encroachment and whether Tribunal on admission of a suit can summarily decide it, and while exercising its powers under section 13 and 14 of the Act Tribunal can direct removal of encroachment. For resolving this issue understanding of statute is essential.

13. The Sindh Public Property (Removal of Encroachment) Act, 2010 (the Act) is a special law, it provides for establishment of Tribunal and Special Courts, former for adjudication of matters relating to the determination of status of property that whether a property under alleged encroachment or under lease or license is not a public property and latter for trial of offences under the Act.

14. The Act provides a complete mechanism for removal of encroachment on public property. For the sake of convenience and understanding the relevant provisions of the Act are reproduced below:

(i) The aims and objective of the enactment were to remove encroachment from public property and retrieve possession and provide measures for removal of encroachment and prosecute the outlaws encroaching public property.Preamble of the Act read as under:

An Act to provide measures for removal of encroachment from public property and to retrieve possession; WHEREAS it is expedient to provide measures for removal of encroachment from public property and to retrieve possession and for matters ancillary thereto;

(ii) The terms encroachment and Public Property are defined in section 2(j) and 2(o) as follows:

(j) “encroachment” means unauthorized occupation of or undue interference with public property;

(o) "Public Property" 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;

(iii) The Government or any authority or officer authorized by Government in this behalf have been conferred powers to remove encroachment under section 3 of the Act, which reads as under:

3. Removal of encroachment and structures.(1) Government or any authority or officer authorized by Government in this behalf may require the person directly or indirectly responsible for encroachment to remove such encroachment together with the structure, if any, raised by him on the public property, within the period not less than two days as may be specified in the order.

Explanation.Lesse or licensee who after the expiry of the period of lease or license or on determination of such lease or license, continues to retain unlawfully possession of any public property shall for the purpose of this subsection, be deemed to be responsible for encroachment.

(iv) Section 4 of the Act provides a remedy of review against the order of authority for removal of encroachment. On an order passed by the Authority for removal of encroachment, the aggrieved person may prefer a review petition to Government or authority, which will be decided within 15 days confirming, modifying or vacating the order. Section 4 reads as under:

4. Review (1) Any person dissatisfied by the order passed under sub-section (1) of section 3 may, within three days from the service thereof, prefer a review petition to Government or any authority or officer who has passed such order. (2) Government or, as the case may be, the authority or officer as aforesaid may, after perusing the review petition filed under sub-section(1) and giving an opportunity to the petitioner or his duly authorized agent of being heard, confirm, modify or vacate the order within fifteen days on receipt of petition.

(v) Section 5 of the Act empowers authorized officers to remove encroachment on conclusion of proceedings under section 3 and 4.Section 6 prescribes the manner in which cost of demolition is to be recovered. Section 7 requires recovery of rent if any from encroacher as arrears of land revenue. Section 8 provides punishment for an offence of encroachment; section 9empowers Government to delegate powers to the authorized officers and section 10 provides for incentives to the officers of anti-encroachment force in case of recovery of fine etc. Perusal of the above provisions of law reveals that removal of encroachment is purely the domain of officers authorized by the Governmentin this behalf. For removal of any encroachment the officers are not required to obtain the orders of Tribunal or Court, they may proceed against encroachers in accordance with the provisions of Sections 3 and 4 of the Act.

15. The Jurisdiction of Tribunal starts when a dispute as to the status of a property arises, Tribunal is assigned exclusive jurisdiction to adjudicate such claims under section 11, 13 and 14 of the Act, which read as under:

11. Bar of jurisdiction and abatement of suits.(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 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 for 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 license in respect of such public property has not been determined.

13. Exclusive jurisdiction.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 public property has not been determined for the purpose of this Act.

16. Intent of the Legislaturebehind these provisions of law is crystal clear that a suit shall lie before Tribunal for seeking a negative declaration that a property subject matter of encroachment is not a public property.Review of the above provisions of law leaves no any doubt that Tribunal established under the Act is vested with an exclusive jurisdiction for determination of status of the property and nothing else. The Tribunal if approached may adjudicate the claims with regard to the status of property to the extent that it is not a public property. The jurisdiction of Tribunal shall commence when an authorized officer gives a notice under section 3 of the Act to the alleged encroacher for removal of encroachment within specified time, if he fails to respond the action shall follow as laid down under section 5, 6, 7 and 8 of the Act. but if the alleged encroacher files a review petition under section 4 of the Act with a claim that the property is not a public property, the authorized officer shall decide the review petition within 15 days of application. If the alleged encroacher claims that subject matter of the encroachment is not a public property and authorized officer decides that review petition is without force, he shall make decision and proceed further in accordance with law. In case of dismissal of claim of alleged encroacher in review petition, the aggrieved person may bring a suit seeking determination of status of property by Tribunal.

17. Section 14 of the Act prescribes the procedure and power of the tribunal, if a suit is filed before Tribunal seeking determination of property, it shall proceed with the matter as a civil court,This provision of law confers Tribunal powers of Civil Court to summon and examine witnesses and ensure the attendance of any person, examine witnesses and receive evidence on affidavit,compel production of document, issue commission for examination of witnesses, section 14 reads as under:

14. Procedure and Powers of the Tribunal(1) 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) as to -

(a) Summoning and enforcing the attendance of any person and examining him on the oath;

(b) Receiving evidence on affidavit;

(c) compelling the production of documents;

(d) issuing commission for examination of witnesses or documents.

(4) The proceedings before the Tribunal shall be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act No.XLV of 1860).

18. Tribunal is conferred anexclusive jurisdiction to adjudicate dispute that whether a property is not a public property. Section 13 empowers tribunal to give a negative declaration in respect of a property under lease or license or encroachment. This provision of the Act attaches sanctity to the determination made by an authorized officer with regard to the status of property under encroachment or the lease or license. Party disputing such a determination may seek a declaration that the property adjudicated under section 4 is not a public property by filing a suit before Tribunal. Wisdom of legislature behind this provision of law is that public officers are custodian of record of rights and having adequate information regarding the status of a property and in case of encroachment, the property is retrieved without any delay. The provisions of law make it clear that Tribunal lacks jurisdiction toentertain a suit for declaration that a property is a public property, the Tribunal cannot entertain a suit seeking order for removal of encroachment. Tribunal under this Act is established to check if the orders passed by an authorized officer under section 3 and 4 of the Act, are within four corners of law and party under allegation of encroachment may not suffer due to the acts of officials.

19. Adverting to the proceedings under challenge before this Court, it transpires that plaintiff/respondent No.1 filed suit with following prayer:

“9. That plaintiff now prays for judgment and decree as under:

a) That, this Honorable Court may be pleased to call the report from the defendants No 2 to 5 for the encroachment made by defendant No 01 over Government Property / Graveyard.

b) That, this Honorable Tribunal / Court may be pleased to direct the defendants No 02 to 08 to remove the illegal encroachment of defendant No 01 and take legal action without any delay as provisions of said Act.

Perusal of prayer clause reveals that plaintiff /Respondent No 1 did not seek declaration of property as required under section 12, 13 and 14 of the Act, instead he approached Tribunal for removal of encroachment by levelling a specific allegation of encroachment against the petitioner/defendant which was denied by him in written statement. The reports of survey superintendent, Inspector of (Revenue) city survey, Mukhtiarkar (Revenue) Kamber, did not in any manner indicate that the petitioner/defendant had encroached upon the public property but a report disclosing that there were houses and a fish farm available over Suit Property, which did not specifically allege that Petitioner had encroached upon public property.

17. The Respondent No 1 (Plaintiff) was required to first move officials of Anti – Encroachment Department for removal of encroachment, on their failure, he could have approached the appropriate forum seeking directions for initiating proceedings under the Act. Tribunal upon receiving an application or suit is required to check whether the party approaching the Tribunal was seeking a declaration against the action of authority intended to be taken under section 5 and 6 of the Act and a review of the orders has been made under section 4 of the Act. Tribunal upon admission of suit shall adopt procedure codifiedunder the Code of Civil Procedure. The Tribunal shall receive written statement, frame issues, require attendance of parties and finally determine the status of property.

18. In the present case, the Tribunal upon receipt of suit called reports from Mukhtiarkar and other revenue authorities. The reports did not specifically mention the status of land. Defendant denied the allegations of encroachment even the reports of Mukhtiarkar did not specifically allege Petitioner/Defendant No 1 for encroachment. Under such a situation it was incumbent upon Tribunal to first decide its jurisdiction, If Tribunal found that it was not a suit for determination of status of property then proper course was to reject the plaint, in other case to proceed further and summon defendants to file written statement, frame issues, record statement of witnesses, summon official witnesses along with record of the property under dispute and make a clear determination as to the status of property. After such determination the Officials of Anti Encroachment Force will proceed further in terms of their earlier action. Petitioner filed suit before Tribunal seeking directions for removal of encroachment and not that of determination of status of property, tribunal in fact while entertaining the suit encroached upon the jurisdiction vested with executive, making all the proceedings before Tribunal illegal, perverse and without jurisdiction and tantamount to judicial overreach.

19. The Honorable Supreme Court of Pakistan in the case of Federal Government Employees Housing Authority through Director General, Islamabadversus Ednan Syed and others reported in PLD2025 Supreme Court 11 has been pleased to hold as under:

16. The Constitution does not envision that the courts are bestowed with unfettered powers that can be exercised within the disguise of judicial review. The judicial power is the power that is defined by the Constitution and law. It may vary from one institution to the other, such as this Court's jurisdiction is distinct from that of the High Court. However, the underlying principle remains that the judicial review of legislative and executive actions is not an unlimited or unbridled authority of the courts but the one circumscribed or confided by the Constitution and the law. The gateway to invoke judicial review of the High Court is only when there is an application or appeal by the aggrieved or affected party. In the absence of any such application, the High Court may enter into the domain of judicial overreach, which is the exercise of power without any legal basis and the same falls within the ambit of interference and encroachment on the legislative and executive domain. Consequently, such absolute judicial expansionism offends the principle of separation of powers. Therefore, the Impugned Judgment and the Impugned Order clearly fall within the scope of judicial overreach and infringe the Constitution.”

19. The Determination of status of property by Tribunal in terms of section 14 of the Act attains finality, purportedly to seek quick disposal of litigation, so that the public property could be retrieved from encroachers without any loss of time. The act gives a right of appeal in case of a judgment of conviction or acquittal by Special Court. The statute did not provide the right of appeal against the judgment and decree of Tribunal, therefore same is amenable to writ jurisdiction of this Court conferred under article 199 of the Constitution. The powers of this Court under its writ jurisdiction are corrective and supervisory in nature to examine whether the Court below has acted in excess of jurisdiction vested in it or not. We have carefully examined the material available on record and find that Tribunal was not competent to entertain the suit of Plaintiff, Tribunal exercised the jurisdiction not vested in it and went beyond the powers conferred to it under section 13 of the Act. In our considered view the impugned order is illegal, perverse, passed in excess of jurisdiction, and not sustainable under the law, consequently this petition is allowed, the impugned order dated 21.12.2021 is set aside, the plaint of the suit is rejected.

20. Since the reports of Mukhtiarkar and Survey Superintendent Larkana reveal that Suit Property is a public property, the Respondent No 1 / plaintiff has already approached the competent authority for proceeding against the encroachers. The application dated 28.09.2020 of Plaintiff / Respondent No 1 is available at page No 29 of the Petition. The Respondent No 4 is directed todecide the application of within a period of 30 days of receipt of this order. In case the public property is found under encroachment he shall adopt a due course of lawprovided under Sindh Public Property (Removal of Encroachment) Act 2010. It is pertinent to mention here, if during inquiry the authority comes to conclusion thatSuit Property is reserved for village Asaish being part of and within the limits of Village Abdullah Panhwar as averred in the plaint, then persons occupying the land, having constructed residential houses thereupon shall be deemed to be owners on account of their possession and they shall not be disturbed in any manner. The action shall be taken against the persons making commercial use of public property reserved for village Asaish. It transpires from Mukhtiarkar report available in Court file that suit property is not entered as a graveyard in record of rights and there are 7 to 8 graves near the road,the revenue authorities / Respondent No 3 may make appropriate order for reserving a certain portion of suit property (survey number 238) for graveyard.

The petition stands disposed of in above terms along with listed applications.

JUDGE

Asghar/P.A