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Criminal Revision Application No. 265 of 1959, decided on 30th November 1959.
Applicant not required to apply to Sessions‑Court before applying to High Court‑Application once admitted to be disposed of on merit.
Ihsanul Haq for Applicants.
H. T. Raymond and Aehar by A. G. Akhund for Respondents.
Dates of hearing : 21st September, 1959 and 9th, 16th and 30th November 1959.
This is an application filed by Qamruzzaman and 21 others 'who have been prosecuted for an offence under section 447, P. P. C. in the Court of the Joint Sub‑Judge and First Class Magistrate, Hyderabad.
The F. I. R. of this was lodged on 6‑2‑1956, and the challan of 63 persons was presented by the Police on 14‑2‑1956.
The allegation is that these persons had illegally taken possession of survey No. 5 and 251 standing in the name of Mr Sikandar Mirza Beg. The possession was taken by these applicants more than a year before the report was lodged. All the accused were tried together in the beginning but later on the case was split up and they are now being tried separately. It was alleged that the offence under section 447, P. P. C. was not proved yet the applicants were being harassed.
It is admitted that no revision application was filed against the order of the learned Magistrate splitting up all these cases.
It is urged on behalf of tire applicants that the long protect ed trial have prejudiced the case of the accused persons considerably inasmuch as the process of the Court has been abused. Two prayers were, therefore, made before me. Firstly, that the offence as disclosed was of a civil nature and secondly, the entire proceedings were an abuse of the process of Court under section 561‑A, P. P. C. and, therefore, they should be‑quashed.
As regards the first plea, the following circumstances were submitted for consideration :‑
(i) The applicants have been allowed to put constructions on the land in dispute for more than a year before action was taken ;
(ii) Civil remedy was being sought against seven persons who were similarly placed in as much as a suit had been, filed in the Civil Court.
The prosecution in this case against the applicants was, therefore, nothing less than harassment. The Civil Suit was filed on 8‑9‑1958.
The learned counsel for the opposite party did not deny the filing of the civil suit but pointed out that this was not a civil matter. The applicants had occupied the land without lawful permission as was evident from the statement of. P. W. Yar Muhammad (page 30 of the record). The action of the applicants came, therefore, within the mischief of section 441, P. P. C. and the landlord was at liberty to chose any remedy that was available to him.
It was, however, urged by the counsel for the applicants that the property has not been in the name of Mr. Sikandar Beg, the complainant, but it stood in the name of his brother who had not authorised Mr. Sikandar Beg to prosecute them.
The learned counsel for the opposite party pointed out that the property was ancestral and stood in the name of Khan Bahadur Farrukh Beg but Mr. Sikandar Beg who looks at ter the property was in actual possession and, therefore, it was not necessary for him to prove that annoyance was caused to Mr. Farrukh Beg.
It was, however, urged that, even if the applicants came on the spot on a lawful authority, they should be ejected because they ‑were being told to quit the land. They had put construc tions on the land without any right and they had converted an agricultural land into a non‑agricultural land for which a penalty of Rs. 12,000 was being imposed upon Mr. Sikandar Beg. Besides, the landlord had been kind to the applicants, that he was employing pursuasive methods and had not taken any drastic steps.
It was admitted that Mr. Sikandar Beg had appealed against the order imposing penalty.
It was pointed out by the learned counsel for the applicants that it is quite possible that the penalty imposed upon Mr. Sikandar Beg may be waived.
It was urged by the counsel for the applicants that, when the applicants built the house, there was no water and the land could not be used for cultivation purposes. Water had reached there recently and this was the reason why the complainant wanted to throw them out as the value of the property had enhanced.
The learned counsel representing the State in this case conceded that there was substance in what the applicants had alleged. According to him large, number of refugees in search of a home, came to Pakistan and were allowed by Government to settle temporarily at many open places. It cannot be said that there was any intention on their part to commit any mischief. The intention was merely to settle at places that were open. In this particular case, there was neither water on the land nor was the land used for cultivation. It was merely an arid plot and the landlord had acquiesced in their settling on the land in dispute. These people were lulled by the frequent visits of the agent of the landlord and the A. S. I. who never prevented them from constructing their houses. In many cases, the landlord had compromised with some of the settles and all those people who were able to get a compromise were being let off in this prosecution.
I have heard the learned counsel of both the sides at con siderable length and feel inclined to agree with the learned counsel representing the State. In my view, the trial has gone on for too long a period, since 1956, four years have nearly passed and there seems to be no end. The alleged huts were constructed on the plot over a year before the F. I. R. was made. The constructions were witnessed repeatedly by the agent of the landlord as also by the landlord himself and by the A. S. I. yet the F. 1. R. could not be lodged before a year had passed. Out of the 63 persons that were challaned, only 22 were prosecuted. Out of these 22, only 7 persons have been tried and, for others, they are just waiting‑ to be tried.
In this case, it is not denied that the landlord is proceeding against some of these trespassers in Civil Court and a suit was filed by him on 8‑9‑1958. There are 300 to 400 houses with a mosque constructed on the land according to P. W. Azizullah and the opposite party lives only one furlong away. It is also in evidence that there is no boundary wall and the land could not be demarcated on the spot. In the year 1953, the land was dry and was not used at all for agricultural purposes. Water has recently come on the land in dispute.
The learned counsel for the landlord said that the landlord will have to pay damages for converting this non‑agricultural land into residential area and a sum of Rs. 12,000 has been imposed upon him as penalty.
The learned counsel for the State further pointed out that it was for the landlord to show to the authority concerned the circumstances under which the settlers had taken possession of his land and there was every possibility that his appeal might succeed.
In my view, the question of damages is not of sufficient impor tance so as to support the allegation under section 447, P. P. C. There has been an abuse of the process of Court, the complainant has gone to Civil Court in some cases similar to these and this is therefore a fit case in which orders should be passed under section 561‑A, P. P. C.
The learned counsel for the landlord urged that, in this case, the applicants should have approached the Sessions Court first before coming to the High Court.
In my opinion, it is not necessary for an application under) section 561‑A, P. P. C. that the applicant should go to Sessions A Court first. If it is admitted, the application should be decided on merits.
From the evidence on record, I find that the applicants do not admit possession of the landlord. They constructed their houses within the knowledge of the landlord and occupied the land more than a year before the F. I. R. was lodged. According to P. W. Azizullah (page 22‑23) 300 or 400 houses have been built on the land in dispute. This shows either the landlord had consented or he was not sure of his position.
The learned counsel for the opposite party admitted that there was no sign board or demarcation of land as it was not possible to draw any line in such a vast area.
The land was contiguous to the Municipal land and there was a possibility of both the parties mistaking it as land belonging to the State. Ever since the partition, a large number of refugees were allowed to settle on open land with or without permission by Government and no action was taken against them. Such a state of affairs could lead, many people to believe that they could settle on open land specially when the landlord did not object.
If the present state of affairs is allowed to continue, namely, if the trial of the case proceeds on, a charge of harassment can, under the circumstances, be levied against the opposite party. Delay, acquiescence and conduct on the, part of the opposite party in coming to terms with some applicants, in going to Civil Court in some cases, starting prosecution .against the present applicants and compromise with those who had agreed to their conditions, show that the landlord wants to get his own terms out of them. The case has been going on since 1956, for four years and there seems to be no end of the proceedings.
Considering all the circumstances of the case, I think the proceedings, in this case, be quashed.
I order accordingly.
K. B. A./A. H.
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