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Suit No. 481 of 1987, decided on 30th July, 1987.

‑‑‑S. 11(2)‑‑Sind Public Property (Removal of Encroachment) Rules, 1976, d. 9.1‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑Rejection of plaint‑‑Jurisdiction of Civil Courts‑‑Removal of construction from public property‑‑Suit for declaration and injunction about ownership of property by plaintiff‑‑Defendant's application for rejection of plaint on ground that jurisdiction of Civil Court was barred under S. 11 of Act V of 1975‑‑Jurisdiction of Civil Court whether barred‑‑Extent of jurisdiction of Tribunal created under Act V of 1975‑‑Provisions of S. 11(2) of Act V of 1975, provided for abatement of all suits and appeals pending at time of coming into force of the Act‑‑Sections 12 & 13 thereof, provide for creation of Tribunal to adjudicate such disputes‑‑Neither Act V of 1975 nor Rules framed thereunder provide that reference to Tribunal for adjudication of rights of parties was to be made by authorized officer‑‑Private party was not debarred from referring such a dispute to Tribunal‑‑Provisions of S. 11(2) of the Act specifically entitled parties to pending suits and appeals to file such suit before Tribunal within time specified therein‑‑Such right of filing suit was conferred not only on parties to pending suit or appeal but also to parties to similar disputes after coming into force of Act V of 1975‑‑Even for establishing whether property in dispute was public property or not, competent Tribunal would be the Tribunal created under S. 12 of Act V of 1975 and not the Civil Court.

Murad Bux v. Haridas and others P L D 1975 Kar. 1046; Syed Weedhal Shah and others v Province of Sind and another P L D 1978 Kar. 464 and Karachi Development Authority v. Evacuee Trust Board and others P L D 1984 Kar. 34 ref.

‑‑‑S. 11‑‑Sind Public Property (Removal of Encroachment) Rules, 1976,R. 9(1)‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑Removal of construction from public property‑‑Suit for damages, competency of‑‑Suit for damages against removal of construction from public property, against Authority, held, would not be competent unless it was held by competent Tribunal that such act of demolition of construction was not done by such Authority/defendant under the Act or land on which construction was demolished was not public property‑‑Civil Court's jurisdiction being barred under S. 11(2) of Act V of 1975, plaint filed therein, for declaration and injunction in respect of such property was rejected on ground of bar of jurisdiction.

Zaheeruddin Khan for Plaintiff.

S.M. Muslim Naqvi for Defendants.

Date of hearing: 19^th July, 1987.

This is an application under Order VII, Rule 11, C.P.C. for the rejection of the plaint on the ground that the jurisdiction of the Civil Court was barred under Section 11 of the Sind Public Property (Removal of Encroachment) Act, 1975 (hereinafter called the Act).

2. I have heard Mr. S.M. Muslim Naqvi learned counsel for the Defendant No.1, who had moved this application and Mr. Zaheeruddin Khan learned counsel for the plaintiff .

3. The facts of the case as disclosed in the plaint are, that Defendant No.4 Mst. Kulsoom Bai Jaferji owns Survey No.97, Deh Drigh, Tapo Malir, District Karachi measuring 9 acres 13 ghuntas. This Mst. Kulsoom entered into an agreement of sale of this land with one Ghulam Hussain Brohi, who privately partitioned and sub‑divided this land in various plots and even sold them to some persons. However, on the suit filed by Mst. Kulsoom Bai this Court put Mst. Kulsoom Bai in possession of the plots. The plaintiff then purchased a portion of land from Defendant No.4 measuring about 1,000 sq.yds. and after getting the plan approved by the Karachi Building Control Authority, raised construction of a shopping Centre over this plot. But, on the complaints of the other residents of area, the Karachi Building Control Authority withdrew its approval of the construction Plan against which order the plaintiff filed a suit in the Civil Court and obtained interim injunction against the said authority, which injunction is still in force. However, on 9‑2‑1987 the plaintiff received a notice from the Assistant Director, Land of Defendant No.1 requiring the plaintiff to remove the construction alleging that it was on K.M.C. land/road. The plaintiff made representation against this notice, but on 14‑2‑1987 he again received another notice from Defendant No.2, who was then Assistant Director, Lands of Defendant No.1, directing him to remove construction which was allegedly raised on the 40 ft. wide K.M.C. road. The plaintiff made representation against this notice also, but without passing any final order the Defendants Nos.1 and 2 demolished the construction of the plaintiff on 26‑2‑1987 and removed goods worth Rs.80,780. The plaintiff, therefore, filed the suit for declaration that he was the owner of the suit land measuring about 1,000 sq. yds. in Survey No.97 and for injunction against the Defendant restraining them from interfering in the plaintiff's use and occupation of the suit land and raising the construction on the suit land. The plaintiff also claimed Rs.1,20,00.780 damages for damolition of the construction as mentioned above.

4. Mr S.M. Muslim Naqvi has contended that the dispute between the parties is over, the question as to whether the area on which the plaintiff had raised construction and which was subsequently demolished by the Defendants Nos.1 and 2 was a public property or not. It is contended that the jurisdiction of Civil Court which includes High Court in exercise of original civil jurisdiction is barred under Sections 11 and 13 of the Act. To appreciate the arguments of Mr. S.M. Muslim Naqvi it will be helpful to reproduce Sections 11, 12 and 13 of the Act which read as under:‑

11. Bar of jurisdiction and abatement of suits.‑‑(l) 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 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 licence in respect of such property has not 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 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.

12. Tribunal.‑‑(l) Government may by notification in the Official Gazette, establish a Tribunal and specify the area in which such Tribunal shall exercise its jurisdiction.

(2) Government may appoint a District Judge, Additional District Judge or District Magistrate or Additional District Magistrate with experience of not less than three years as such Magistrate as a Tribunal.

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 of licence in respect of such public property has not been determined, for the purpose of this Act."

5. The notices referred to in the plaint have been produced by the plaintiff alongwith the plaint which show that they were issued under Section 3 of the Act by an Officer authorised under the Act. Under Section 3 of the Act the Government or any authority or officer authorised by the Government in this behalf may require a person directly or indirectly responsible for encroachment to remove the encroachment together with structure. The plaintiff does not claim to have removed the structure and consequently the Defendant No.2 as an authorised Officer demolished the construction in exercise of power under Sections 5 and 6 of the Act. These actions of the Defendant would, therefore, be deemed to have been done under the Act unless it is held by a competent Tribunal that the land in question from where the construction was demolished, was not a public property.

6. Mr. S.M. Muslim Naqvi contends that even this question cannot be decided by a civil Court as a special tribunal under the Act, for this purpose has been created under Section 12 of the Act and which has been given exclusive jurisdiction under S. 13 to decide this dispute. In support of the contention Mr. S.M. Muslim Naqvi has relied upon the case of Murad Bux v. Haridas and others (P L D 1975 Kar. 1046). In this case a learned single Judge of this Court, while discussing the import of Sections 11 and 13 of the Act, observed as under:‑

"The Act provides for a very expeditious and effective procedure for removal of encroachment from public property, and a Tribunal of exclusive jurisdiction for the determination of the question whether or not a property is a public property. The very purpose of the Act, the exclusive character of the tribunal constituted under the Act and the finality given to its orders would be seriously impaired, if not destroyed, if the parties are left with liberty to invoke the existing jurisdiction of the civil Courts. The expression "civil Court" occurring in the enactment must, therefore, be given its widest import as including all Courts of civil jurisdiction including the High Court in the exercise of its original civil jurisdiction."

7. While coming to this conclusion the learned single Judge referred to Section 11 of the Sind Public Property (Removal of Encroachment) Ordinance, 1975 which was superseded by the Act. This Section 11 of the Ordinance reads as under:‑

"11. No Court shall have jurisdiction to grant any injunction or make any order or entertain any proceedings, in relation to anything done or intended to be done under this Ordinance: Provided that a civil Court may adjudicate upon the dispute that property is not a public property but it shall have no power to issue injunction in suit or proceeding relating to such dispute.

The learned single Judge observed "the aforesaid proviso expressly saved civil Court's jurisdiction to adjudicate upon dispute as to whether or not a property is not a public property for this Ordinance did not, unlike the Act, bring into existence a Tribunal for the exclusive determination of this dispute."

8. The scheme of the Act would show that not only the proviso to Section 11 of the Ordinance has been omitted from Section 11 of the Act, but subsection (2) has been added which provides foci abatement for all the suits and appeals pending at the time of the coming into force of the Act and Sections 12 and 13 have been introduced in the Act to provide for the creation of the Tribunal to adjudicate such disputes.

9. Mr. Zaheeruddin Khan learned counsel for the plaintiff argued that under Rule 9(l) of the Sind Public Property (Removal of Encroachment) Rules, 1976, a reference to the Tribunal has to be made by the authorised officer. I am afraid that I am unable to agree with this contention of the learned counsel. Rule 9(l) reads as under:‑

9. Procedure of Tribunal.‑‑(I) Where a case is referred to the Tribunal, the Tribunal shall fix a date for hearing, a notice of which shall be served on the parties."

Neither this rule nor the Act specifically provides that a reference to the Tribunal shall be made by the authorised Officer, nor do they debar any private party from referring such a dispute to the tribunal. Rather the proviso to subsection (2) of Section 11 of the Act specifically entitles the parties to the pending suits or appeals to file such a suit before the tribunal within the time specified therein. It will not be proper interpretation of the statute to hold that such right was conferred only upon the parties to a pending suit or appeal, but the parties to similar dispute, after coming into force of the Act, were deprived to such right .

10. Mr. Zaheeruddin Khan has relied upon the case of Syed Weedhal Shah and others v . Province of Sind & another (P L D 1978 Kar. 464). In that case the petitioners claimed about 20000 acres of Land which they alleged to be holding under a 'Parwana', but some of which was given on contract by the Forest Authorities to a contractor. The petitioners, therefore, filed a suit for declaration that they were owners of the property. The Division Bench of this Court, included Mr. Justice Fakhruddin G. Ebrahim (as his Lordship then was) who wrote the judgment was also the learned single Judge, who had decided the case of Murad Bux mentioned above. It was held by the Division Bench of this Court in the case of Syed Weedhal Shah that the bar contained in Section 11 was "not an all purpose bar but only in relation to purpose of Act or any thing done or intended to be done thereunder."

11. It is argued by Mr. S.M. Muslim Naqvi in the instant case that the act complained of was done by the Defendants Nos.l and 2 under the Act and therefore, even in view of this decision the jurisdiction of this Court is barred .

12. Mr. Zaheeruddin Khan has also relied upon the case of Karachi Development Authority v. Evacuee Trust Board and Others (P L D 1984 Kar. 34) . In this case some reference was made to Sections 11 and 13 of the Act, as well as to the case of Murad Bux and it was observed by the learned single Judge of this Court as under:‑

"The learned counsel for the applicant has contended that the suit is barred under section 11 of the Sind Public Property (Removal of Encroachment) Act, 1975. In this regard reference has been made to P L D 1975 Kar. 1046. Under sections 11 and 13 jurisdiction of the Civil Court is barred in respect of suit where dispute relates to public property. In the present suit before bar to the jurisdiction is applied, it is necessary to establish that the property in dispute is a public property. This fact cannot be deduced from the averment made in the plaint."

13. However, even for establishing whether the property in dispute was a public property or not, the competent Tribunal would be the Tribunal created under Section 12 of the Act and not the Civil Court. With due respect to the views of the learned single Judge expressed in the case of K.D.A. for the above‑said reason, I am inclined to agree with the views of a learned single Judge of this Court expressed in the case of Murad Bux.

14. It is contended by Mr. Zaheeruddin that at least the suit for damages would not be barred under the Act.

In this context reference may be made to Section 16 of the Act which reads as under:‑

"16. Indemnity.‑ No suit or legal proceeding shall lie against Government or any authority or person in respect of anything which is intended to be, or has been, done under this Act."

Therefore, even the suit for damages would not be competent unless it is held by a competent Tribunal that the alleged act of demolition of construction was not done by the Defendants under the Act or in other words the land on which construction was demolished, was not a public property.

In view of this legal position the application is allowed and the plaint is rejected under Order VII, Rule 11, C.P.C.

A . A . /F‑19/ K Plaint rejected.

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