1. Granted.
2 & 3. Both these applications are submitted on behalf of respondent No,1. In the first it is prayed that appropriate directions be given for demarcation of the plot claimed by the petitioner and in the second the Board of Revenue, Sindh has been sought to be impleaded so that relevant record is placed before the Court and question of title to the plot is decided. We are afraid we would not be inclined to enter into the controversies regarding ownership of property while exercising contempt jurisdiction. Both these are therefore, dismissed. 4 & 5. In view of the order at Serial No,6 no prders are required.
6. Through this application the petitioner has prayed that proceedings for contempt be initiated against the respondent No,1 on the ground that he demolished the building owned by the petitioner in defiance of the consent order dated 13-11-2001. It needs to be recalled that the petitioner was issued a notice under Sindh Public Property (Removal of Encroachment) Act, 1975 dated 6-10-2001.
The petitioner called in question the aforesaid notice and the matter was decided vide the aforesaid consent order, wherein the respondent No,1 was required to decide the matter with regard to contention that the land leased out to the petitioner was different from the one mentioned in the notice. Nevertheless according to the petitioner, without complying with the order the respondent No,1 proceeded to demolish the structure raised by the petitioner. In a detailed counter-affidavit however, by respondent No,1 it is alleged that after withdrawal of the petition subsequent notice/order dated 5-11-2001 was served upon the petitioner and only a few days thereafter removal of the structure raised by the petitioner took place as the respondent No,1 upon reconsideration was fully satisfied that the land in question did not form part of the personal property of the petitioner.
' Mr. Muhammad Ashraf Kazi has argued that the petitioner did not avail the remedy of review application which could be filed under the aforesaid Act. Mr.Muhammad Amin Lakhani contends that the aforesaid order/notice was not received by the petitioner. However, it is not possible to accept his view as no affidavit-in-rejoinder was filed. It is well-settled that a statement on oath is required to be given effect unless rebutted by a statement on oath. Having gone through the provision of the Act it seems that though an order under section 3 can be passed without notice to the affected person, section 4 enables such power to prefer a review application within seven days of service of the order under section 3, which can only be decided after hearing him. It is well- settled that at times, owing to urgency, an initial order, which is not completely destructive of the affected person's rights, may be passed without hearing him, but the principles of natural justice stand fulfilled if he is heard afterwards and the original position can be restored. We would like to clarify here that though it might be possible to infer from the language of section 3 that forcible action for removal of encroachment could be taken after three days of an order under the said provision. A harmonious reading alongwith sections 4 and 5 suggests otherwise.
Under section 4, a person aggrieved by an order under section 3 has a right to prefer a review petition within seven days from the service of the order and such petition can only be decided after hearing the applicant. Under section 5 forcible action can be taken only if no review petition is filed or such petition is filed and dismissed. Obviously if forcible action is taken immediately upon the expiry of the three days' period specified in the order under section 3, the right to prefer a review petition within seven days would become meaningless. Moreover such action would be plainly violative of the specific requirement of section 5 including the provision that no forcible demolition could be effected unless the review petition is dismissed. It is quite clear therefore, that forcible action by way of demolition or ejectment can only take place after the expiry of seven days from the service of order under section when no review petition preferred, and whenever such petition is made after the dismissal of the petition. The concerned officers therefore, must keep the above requirements in mind. Nevertheless in the instant case it has not been stated when removal actually took place in the contempt application which was filed on 3-12-2003. Therefore, no case for proceeding in contempt is made out.
Mr. Lakhani attempted to explain that no affidavit-in-rejoinder was filed because possibility of compromise between the parties was indicated to his client. Be that as it may while we would certainly welcome amicable settlement of dispute we are afraid that the contempt jurisdiction of this Court cannot be exercised for settling private scores. This is yet another reason for discharging the contempt proceedings as against the respondent and we would dismiss this application.