2016 P Cr. L J 1877
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhalil, J
MUHAMMAD AALAM ---Petitioner
Versus
MEHMOOD KHAN and another ---Respondents
Criminal Quashment Application No.(s)16 of 2014, decided on 27th June, 2014.
(a) Illegal Dispossession Act (XI of 2005) ---
----Preamble, Ss.2(c), 3, 4, 5, 7 & 8---Criminal Procedure Code (V of 1898), S.561- A---
Balochistan Tenancy Ordinance (XXIV of 1978), Preamble & S. 33--- Illegal dispossession---
Complaint ---Quashing of proceedings/order ---Pe tition, had been directed against the interim
order of the Trial Court whereby application filed by respondent under S.7 of Illegal
Dispossession Act, 2005, was accepted and petitioner/accused was restrained from cultivating
land leased out to him by the r espondent/complainant ---Allegation against petitioner, was that,
he, after expiry of agreement of lease in respect of land of the respondent/claimant, was not
surrendering land in dispute and was grabbing the same ---Claim of petitioner was that, initially
land in dispute was leased out to him in 'Ijara', but subsequently same was sold out to him by the
complainant and that he had filed civil suit for specific performance against
complainant/respondent ---Dispute between the parties, did not fall within the purview of the
Illegal Dispossession Act, 2005, rather the case of respondent, would come within the purview of
Balochistan Tenancy Ordinance, 1978, which had provided a complete procedure for ejectment
of tenant ---Proceedings initiated in the case under Il legal Dispossession Act, 2005 was coram
non judice, because respondent himself had pleaded that petitioner was his tenant/lessee ---
Petitioner being a lawful occupant of land in dispute as tenant, his case was covered in terms of
S.2(c) of Illegal Disposses sion Act, 2005--- Impugned order passed by the Trial Court was set
aside and the proceedings initiated on complaint filed by the respondent before the Trial Court
under Ss.3, 4 & 8 of the Illegal Dispossession Act, 2005, were quashed, in circumstances.
(b) Illegal Dispossession Act (XI of 2005) ---
----Preamble, Ss. 4 & 5(2) ---Purpose and scope of Illegal Dispossession Act, 2005--- Illegal
Dispossession Act, 2005 was enacted to protect the lawful owners and occupiers of the
immovable property from their illeg al and forcible dispossession by the land grabbers, further to
discourage the unauthorized and illegal occupants ---Said Act, being special law, empowered the
court to conduct special investigation within the stipulated period and after receipt of the
inves tigation report the court was required to apply its mind; as to whether the complaint would
proceed further under S.5(2) of said Act or not ---When the court would reach to the conclusion
that a prima facie case was made out for taking cognizance thereafter , the court was required to
proceed further and then to pass an interim order, and if the question of dispossession prima facie
was not made out; the court was not bound to proceed with the complaint, but the same would be
dismissed and the complainant could approach the court of competent jurisdiction for redressal
of his grievance ---Spirit of Illegal Dispossession Act, 2005, was to proceed against the persons,
who were professional land grabbers or members of land mafia, and not against a person who
was i n lawful occupation.
Anwar -ul-Haq Chaudhry for Petitioner.
Rajesh Kumar for Respondent No.1.
Abdullah Kurd for the State.
Date of hearing: 6th June, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This petition is directed
against the interim order d ated 20.01.2014 passed by the Sessions Judge Usta Muhammad ("trial
court") in Criminal Complaint No.2 of 2013 ("the complaint"), whereby the application under
Section 7 of the Illegal Dispossession Act, 2005 ("the Act") was accepted and the petitioner was
restrained from cultivation, plough or utilization of the agricultural land measuring 24 Acres
situated at Gandakha under Survey NoS.30/3, 31/3- 1, 32/3- 4, 33/4, Circle No.(ii) chak No.35,
Tehsil Gandakha, District Jaffarabad ("land in dispute").
2. Relevan t facts for decision of the instant petition are that respondent No.1 is the recorded
owner of the agricultural land. He leased out the said land to the petitioner on Ijara in the year
2001, which continued till Rabi crops, 2013. After Rabi 2013, the petit ioner failed to hand over
the land in dispute and started cultivation of Kharif crops 2013 -14, whereas the respondent No.1
was not interested to extend the said Ijara after Rabi 2013, thereby the petitioner illegally
occupied the land, which is in his ille gal occupation till date. On such allegations the respondent
No.1 filed the complaint before the learned trial court. On receipt of report dated 02.07.2013
submitted by the SHO police station Bagh Head, Tehsil Gandakha, the learned trial court passed
an or der on application under section 7 of the Act, and the petitioner was restrained from
cultivating or utilizing the land in dispute for agricultural purpose.
3. I have heard the learned counsel for the parties and have also gone through the record.
Perusal whereof reveals, that the respondent/complainant contended that the land in question was
leased out to the petitioner in the year 2001 and the duration of lease was already expired after
Rabi 2013. He claimed that after expiry of agreement, the petitioner is not surrendering
possession of the land but has grabbed the same. On the other hand the petitioner relied on
agreement dated 07.03.2002, which shows that the respondent/ complainant had sold out his 24
acres land (48 Jaribs). Though, he admitted that initially the land was on ijara, but stated that
subsequently it was sold out at the rate of Rs.50,000/ - per acre and the sale proceeds whereof
were already paid to the respondent/complainant.
Although the contention of both the parties are divergent in nat ure, wherein one claims
that after ijara the same has been grabbed and the other claims that after ijara the same has been
sold out to him. Be that as it may, the respondent has come to the court on plea of illegal
dispossession, while the petitioner opted to have recourse to the civil court and filed a civil suit,
therefore, without rendering any observation on the respective pleas introduced by the parties.
The matter in hand relates to alleged illegal dispossession of the respondent from the land in
dispute, therefore the contention raised from both sides would be visualized in the light of the
Act and to better understand the preamble of the Act is relevant, which provides as under:
"Whereas it is expedient to protect the lawful owners and occupiers of i mmoveable
properties from their illegal or forcible dispossession therefrom by the property
grabbers."
If the contention of respondent/complainant is admitted in toto the preamble and
provision of section 33, Balochistan Tenancy Ordinance XXIV, 1978 ("the Ordinance") will
come into play, which provides as under:
"Preamble. Whereas it is necessary to provide a law to govern the rights and liabilities
of tenants and the landlords in lands in the province of Balochistan and matters connected
therewith."
33. C ognizance of ejectment suit. A suit of ejectment by a landlord against his tenant
shall be filed in a revenue Court of an Assistant Collector of 1 grade, hereinafter referred
to as the Court"
Therefore, in such view of the fact that the dispute between the parties does not fall
within the purview of the Illegal Dispossession Act, 2005, rather the case of
respondent/complainant comes within the purview of the Ordinance, which provides a complete
procedure for ejectment of tenants, thus the proceedings initiated under the Act is coram non
judice. On the other hand the petitioner has also filed a suit against the respondent No.1 bearing
Civil Suit No.21 of 2013 for "Declaration, Specific Performanc e and permanent Injunction",
which is pending adjudication before the civil judge Usta Muhammad. The preamble of the Act
clearly manifests that only those cases will come within the purview of the Act in which no civil
litigation is pending or dispossession thereof is not governed by any other law.
The preamble of the Act reflects that the Act was enacted to protect the lawful owners
and occupiers of the immoveable property from their illegal and forcible dispossession by the
land grabbers and further to discourage the unauthorized and illegal occupants. The Act, being
special law empowered the court to conduct special investigation within the stipulated period and
after receipt of the investigation report, the court was required to apply its mind as to whe ther the
complaint shall proceed further under section 5(2) of the Act or not. When the court reaches to
the conclusion that a prima -facie case is made out for taking cognizance thereafter the court is
required to proceed further and then to pass an interi m order and if the question of dispossession
prima facie is not made out the court is not bound to proceed with the complaint but the same
shall be dismissed and the complainant may approach the court of competent jurisdiction for
redressal of his grievance. The spirit of the Act is to proceed against the persons, who are
professional land grabber or members of land mafia, and not against a person who is in lawful
occupation. In the instant case complainant himself pleaded that the respondent was his
tenant /lessee, therefore, the respondent is a lawful occupant of the land in dispute and his case is
covered in terms of section 2(c) of the Act. The Act is a special enactment and in case where a
civil litigation is pending between the parties particularly, whe n the question of title is subjudice
before the court of civil jurisdiction, and issue in dispute, is yet to be determined, the provision
of the Act cannot be invoked.
Thus, in view of above discussion the complainant's case does not come within the
purvi ew of the Act because he had not been dispossessed by the respondent but the respondent is
in lawful occupation being tenant/lessee of the land and as already discussed earlier that the civil
suit for specific performance is pending adjudication between the parties. Therefore, complaint
under the Act is not maintainable.
In view of the discussion made herein above, petition is accepted, impugned order dated
20.01.2014 passed by the trial court is set aside and the proceedings initiated on complainant No.
02 of 2013 filed by the respondent before the trial court under sections 3, 4 and 8 of the Illegal
Dispossession Act, 2005 are hereby quashed.
Resultantly, the petitioner Muhammad Alam son of Muhammad Hashim is acquitted of
the charge.
HBT/48/Bal. Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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