Order Sheet.
HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.
CR. REV. A. NO.S-108 OF 2007.
Ali Raza. . . ..V. . . . .Haji Mir Muhammad and others.
Date Order with signature of Judge
FOR KATCHA PESHI.
Date of hearing: 22.2.2010 & 01.03.2010.
Date of order: 12.3.2010.
Mr. Zahoor Ahmed Baloch, Advocate for the applicant.
Mr. Ayaz Hussain Tunio, Advocate for the respondents.
Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General, Sindh.
. . . .
MUHAMMAD ALI MAZHAR,J.- This Criminal Revision Application has been filed by the applicant against the impugned order dated 8.10.2007, passed by the learned Ist Additional Sessions Judge, Hyderabad in Criminal Miscellaneous Application No.10 of 2007.
2. The brief facts of the case are that the applicant Ali Raza filed an application under section 3 & 4 of the Illegal Dispossession Act 2005, in which, he asserted that his late father Ghulam Raza purchased an un-surveyed house situated in Ward-2, New Saeedabad Town, Taluka Hala, District Hyderabad, admeasuring 1200 Sq. Ft. It has been alleged by the applicant in his complaint that his father expired on 4.1.2005, thereafter, his grandfather and his sons started threatening to the applicant, his mother and other family members. Ultimately on 27.9.2006, the respondents No.1 and 2, unlawfully dispossessed the applicant from the subject property. In the complaint, the applicant has also claimed that his deceased father Ghulam Raza purchased the property from one Dhani Bux and the conveyance deed of the property was executed and registered on 22.1.1985 in his favour.
3. In response to the criminal revision application, the respondent No.1 has filed counter affidavit in which, inter alia, it was stated that impugned order does not require any interference. The applicant had failed to produce his ownership or title documents and much emphasis has been made on the report of Mukhtiarkar. It was further alleged that the Illegal Dispossession Act, 2005 is not applicable to the dispute over the possession of immovable property between the co-owners and co-sharers, between the landlord and tenant as well as between the persons claiming possession on the basis of inheritance. Finally, it was stated that the learned trial Court adopted due procedure of law and conducted proper inquiry by calling report from the concerned Mukhtiarkar and the Illegal Dispossession Act, 2005 comes in action only against the land grabbers over the properties.
4. The learned counsel for the applicant argued that alongwith the complaint filed in the trial Court, the applicant had also filed a copy of conveyance deed, which fact is also reflecting from the last page of his complaint, that four documents including a conveyance deed were attached to the complaint. The applicant has also attached alongwith this revision application, a copy of conveyance deed dated 22.1.1085 executed by Dhani Bux in favour of the applicant's father for the subject property. On presentation of complaint, the learned trial Court, instead of adopting due procedure as provided under section (5) of the Illegal Dispossession Act 2005, simply called a possession certificate from Mukhtiarkar Taluka Saeedabad, District Matiari. The learned counsel for the applicant has also filed a certified true copy of the report submitted by Imam Bux Kaka, Mukhtiarkar (Revenue) Taluka Saeedabad, on 24.8.2007. The report simply says that the Mukhtiarkar recorded statements of two persons of locality and found that one Mir Muhammad S/o Muhammad Bachal Gahoti is in possession of disputed house for last 25 years. On the basis of this report, the learned Additional Sessions Judge has dismissed the complaint and observed that the matter pertains to the civil dispute, therefore, application under the provisions of Illegal Dispossession Act, 2005 is not maintainable, consequently, the complaint filed by the applicant was dismissed simply on the basis of a report submitted by the Mukhtiarkar. The learned counsel for the applicant further argued that besides this certificate, no further evidence or any investigation was conducted by the trial Court through Officer Incharge of concerned police station, which is a clear violation of section (5) of the Illegal Dispossession Act, 2005.
5. The learned counsel for the applicant has further argued that without any trial and recording evidence, the learned trial Court passed the impugned order in a slipshod manner merely on the basis of Mukhtiarkar's report. Neither the Mukhtiarkar was called in Court nor the alleged witnesses mentioned in the report have been summoned to adduce evidence in support of the report, nor the learned trial Court directed the Officer/in-charge of the concerned police station to investigate the matter and forward the final report to the Court, as provided under section (5) of the Illegal Dispossession Act, 2005 nor the copy of conveyance deed was considered.
6. In response to the arguments of learned counsel for the applicant, Mr. Ayaz Hussain Tunio, learned counsel appearing for the respondents No.1 and 2, argued that the learned trial Court called the report from the Mukhtiarkar and passed the just and proper order without any illegality. After submitting the report of the Mukhtiarkar, there was no justification to call any report from the concerned police station or to conduct an inquiry. In support of his contention, he relied upon a judgment reported in 2007 P Cr.L J 1347. The facts of this case are not attracted in the present controversy, as the parties were co-owners in the same Khata, therefore, the petitioner was directed to avail the remedy of partition. He further relied upon a judgment reported in 2007 M L D 573, which is not helpful to his case, as in this case it was held by the learned single Judge of Peshawar High Court that provisions of Illegal Dispossession Act, 2005 are not applicable retrospectively, acts of respondents who allegedly dispossessed the petitioner, prior to promulgation of the Act would not fall within the ambit of the Act with retrospective operation. Besides above learned counsel for the respondents No.1 and 2 has also relied upon a judgment reported in 2007 M L D 808. The facts of this case are also distinguishable as a civil suit was pending between the parties and injunctive order was passed in favour of accused persons by the civil Court. However, in the above reported case, before dismissing the complaint filed by the applicant under section (3) of the Illegal Dispossession Act, 2005, the learned Additional Sessions Judge sought a report from SHO police station Jhang and respondents were summoned by the Court to face the trial and after framing the charge, the learned trial Court proceeded to record evidence of the parties, thereafter at the conclusion of trial, he dismissed the complaint.
7. Mr. Shahid A. Shaikh, the learned A.P.G argued that the learned trial Court did not follow the procedure as envisaged under section (5) of the Illegal Dispossession Act, 2005 and he also argued that in addition to the report of the Mukhtiarkar, the learned trial Court should have proceeded the matter in accordance with the procedure, laid down under the law, which the learned trial Court failed to follow. He has further contended that the investigation through Officer In-charge of concerned police station was not ordered to be conducted by the trial Court. However, in order to satisfy the requirement of investigation, the learned Additional Sessions Judge asked the Mukhtiarkar to submit his report, however, bye-passing the basic provision of investigation through Officer Incharge of concerned police station, the learned trial Court committed material irregularity hence the learned A.P.G. did not support the impugned order.
8. Heard the learned counsel and perused the case file.
9. The Illegal Dispossession Act, 2005 is a special enactment, promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. All cases of illegal occupants without any distinction would be covered by the Act. The purpose of this special law is to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupier. The Honourable Supreme Court in a judgment, reported in 2009 S C M R 1066, has framed a guideline in order to constitute an offence under section 3(1) of the Illegal Dispossession Act, 2005. It has been held that the complainant is to show before the Court that (i) he is the actual owner or occupier in lawful possession of immovable property in question, (ii) the accused had entered into the said property, (iii) the entry of the accused into or upon the said property is without any lawful authority, (iv) the accused has done so with the intention to dispossess (to grab or control or to occupy) the complainant's property. The Honourable Supreme Court has also pointed out a defence line for the accused which he may adopt in the trial Court that (1) the complainant is not the actual owner of the property, (2) the entry of the accused into the property is not to dispossess the complainant, (3) the accused has the lawful authority to enter into the property and the accused had no intention to dispossess the complainant. A careful examination of the relevant provisions of the Act would reveal that all cases of illegal occupants without any distinction would be covered by the Act and the applicability of the act is not confined to the offence of illegal dispossession committed by land grabbers or Qabza groups only. Though according to the preamble of the Act, the purpose of this Act gives the protection to the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers, however under section (3) of the Act it has been provided that no one shall, enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property. In this section, four eventualities i.e. "dispossess", "grab", "control" or "occupy", have been mentioned by the legislator, showing that the Act has not been promulgated only against the dispossession by the land grabbers or Qabza group, but it deals all types of dispossession which are fitted in the aforesaid conditions. The word "property grabber" has not been defined under the Act, however, the ordinary dictionary meaning of the word "grab" means to seize or snatch suddenly or to get possession of by unscrupulous method or to get roughly and quickly. The observation of the trial Court is incorrect that if the applicant claims ownership of the case property or restoration of its possession, then it requires detailed inquiry which is the sole job of competent civil Court for which, remedies are available to approach the civil Court which is proper forum to decide the controversies between the parties. The finding of the trial Court is contrary to the provisions of Illegal Dispossession Act, 2005. If the trial Court will decide all cases on this assumption, then the purpose of Illegal Dispossession Act, 2005 will become redundant and nothing will be left to decide by the Courts under the said Act. The offence under the Illegal Dispossession Act, 2005 is punishable with imprisonment which may extend to ten years with fine and the victim of the offence may also be compensated in accordance with the provisions of section (544) of the Criminal Procedure Code. Heavy duty and responsibility lies upon the trial Court, to decide the matter with sound reasoning and application of mind after complying with due procedure provided under the law itself. It is an important aspect that no right of appeal is provided to an aggrieved person under the Illegal Dispossession Act, 2005, however, in order to challenge the propriety of any order, recourse is to be made through a criminal revision application or writ jurisdiction of this Court. Both remedies are not equivalent to a right of appeal normally conferred upon an aggrieved person under different statues as vested right, therefore, while deciding the cases under Illegal Dispossession Act, the trial Court ought to act more vigilantly and carefully to avoid any miscarriage of justice. Since the Act has been promulgated for the redress and protection of illegally dispossessed owners and occupiers of the property, therefore, in order to expedite the case, sixty days' time has been fixed for the conclusion of the trial with further direction that Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall, in any case, be granted for more than seven days. In the present case instead of deciding the matter on merits, the learned trial Court has simply dismissed the complaint on the basis of certificate issued by the Mukhtiarkar (Revenue) Taluka Saeedabad, without complying with other pre-requisites, therefore, the impugned order is contrary to the provisions of the Act and liable to be set aside.
9. In the light of foregoing reasons, the order passed by learned Ist Additional Sessions Judge, Hyderabad, in Criminal Miscellaneous Application No.10 of 2007, is set aside and the matter is remanded to the trial Court to decide the complaint on merits within sixty days after the receipt of this order.
Criminal Revision Application disposed of accordingly.
JUDGE