This appeal arises from the appellate order dated 18-9-75 passed by the learned District Judge, Mianwali, whereby he refused to interfere in the judgment and decree dated 9-9-75 passed by the learned Civil Judge 1st Class, Bhakkar dismissing the suit of the appellants on the ground that the jurisdiction of the civil Court was barred under the Thal Development (Punjab Amendment)
Ordinance, 1975.
2. The facts are that the land of the appellants was acquired and delivered to the Thal Development Authority. The land according to the rules was to be returned to the appellants on the expiry of 5 years but was not returned, therefore, the appellants brought a suit for interfering with their possession and cultivation. A:. Has been mentioned above the learned trial Judge dismissed the suit on the ground that the jurisdiction of the civil Court was barred. Section 74-A was Inserted in the Punjab Act XV of 1949 by section 2 of Act 46 of 1975. The section reads as under : "A civil Court shall have no jurisdiction in any matter, which the Collector is empowered by this Act to dispose of and shall not take cognizance of the matter in which the Provincial Government, Board of Revenue, Collector or any other Revenue Officer exercise any power vested in him by or under this Act."
Learned counsel for the appellants by making reference to the observations made at pages 153 and 154 of Chapter VII of Maxwell's Interpretation of Statutes, 2nd Edition says that where jurisdiction of any Court is to be ousted there should be clear words and since under section 74-A the jurisdiction of the civil Court has not been clearly barred, the Courts below have wrongly dismissed the suit. Learned counsel for the respondent has made reference to section 36 of the Thal Development Act of 1949. According to subsection (4) of the said section the Thal Development Authority may before taking possession of the land give an under taking to the Collector by means of resolution, that possession shall be relinquished before the expiry of 5 years from the date on which possession is taken by it. It further provides that if possession is not relinquished by the authority before the expiry of 5 years period in compliance with the undertaking given, on the expiry of the said period the possession shall automatically stand relinquished by the Authority. Subsection (5) provides that where the possession has been relinquished under subsection (4), the Collector shall restore the same to the person or persons from whom possession had been taken. The said persons shall have the same rights and interests in the land as subsisted before the possession was delivered to the Authority.
3. Learned counsel for the respondent relying upon subsection (5) of section 36 has argued that the Collector has to return the land thus the jurisdiction of the civil Court under section 74-A is barred. This is noteworthy that the appellants are not asking for the return of possession rather they claim to be in possession and ask for perpetual injunction restraining the respondent from interfering in his possession. The mandatory injunction sought for is that the respondent he directed to return the land by getting a mutation sanctioned in favour of the appellants in respect of 200 kanals. Subsection (5) of section 36 does not say that such a request can be made only to the Collector where the Authority has refused to transfer the ownership rights. If the relief claimed by the appellants had been that they should be put in possession, of course it could be said that since under subsection (5) of section 36 only the Collector had jurisdiction, the jurisdiction of the civil Court was barred. Learned counsel has also made a reference to section 20-A and has argued that the Provincial Government has authority to direct the Thal Development Authority to do an act or to abstain from doing an act, therefore under second part of section 74-A the jurisdiction of the civil Court is barred. There appears to be force in this argument. Subsection (1) of section 20-A in short states that if the Provincial Government thinks that there are sufficient grounds for proceedings under this subsection, it may, by an order in writing, direct the Authority etc. To abstain from a certain act or acts or to act in such manner or follow such policy as may be specified in the order. Subsection (3) clause (i) further provides that when the Provincial Government after making due inquiry, is satisfied that the Authority has made default in performing any duty imposed upon it by this Act or by any order or rules made under this Act, the Provincial Government may by an order in writing, fix a period for the performance of that duty and should it not be performed within the period so fixed, the Provincial Government may cause such duty to be performed and may recover from the Authority the expenses incurred in doing so". The grievance of the appellants is that the respondent has failed to transfer two hundred (2C0) kanals of land under the rules out of the acquired property and they seek a mandatory injunction directing the respondent to do so.
This remedy can be given to the appellants by the Provincial Government under section 20-A subsection (1) or the said Authority can under section 20-A (3) (i) direct the -respondent to do the A needful within a period fixed by it, and if the respondent fails to perform the duty within that period then the Provincial Government can itself transfer the land and recover the expenses, if any, incurred in doing so. According to the frame of the suit, therefore, section 20-A is applicable and the jurisdiction of the civil Court under section 74-A as inserted by section 2 of Act 46 of 1975 is barred.
4. As a result of the observations made above, I do not find any force in the appeal and dismiss it with costs. s