1. This revision application is directed against the judgment and decree dated 19-12-2000 and 5-1- 2001 respectively passed by the learned IInd Additional District Judge, Nawabshah thereby maintaining the order passed by the learned IInd Senior Civil Judge, Nawabshah rejecting the plaint under Order VII, Rule 11, C.P.C.
2. The relevant facts are that the applicants filed a suit for declaration and Injunction in the Court of learned IInd Senior Civil Judge, Nawabshah being F.C. Suit No. 163 of 1999 seeking declaration that notice issued under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975 by the Administrator Town Committee, Sakrand was illegal. A permanent injunction was also sought restraining the respondents including the Respondent No. 4 from demolition/removal of the construction/structure from the land in possession of the applicants.
3. The plaint was rejected under Order VII, Rule 11, C.P.C. for the reasons that no suit was competent challenging the notice under Section 3 of the Sindh Public Property (Removal of Encroachment)
4. Act, 1975. The applicants preferred appeal which was also dismissed.
5. Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that the point in issue is governed by the provisions contained in West Pakistan Highways Ordinance, 1959. The relevant provision is contained in Section 8 of the above Ordinance which reads as follows:- "8. (1) As respects all highways which on or after the date of the coming into operation of this Ordinance are maintained by the Provincial Public Works Department or are provincial property maintained by local bodies, the following restrictions shall apply, that is to say, it shall not be lawful without the consent of the Highways Authority:--
(a) to construct or layout any means of access to or from the highway;
(b) to erect any building upon land within two hundred and twenty feet from the middle of the highway.
(2) No restrictions in force under the last proceedings sub-section shall apply in relation:--
(a) any building which is used or intended to be used mainly or exclusively for purpose relating to cultivation of land adjacent thereto otherwise than as a dwelling house;
(b) any works begun before the date of the coming into operation of this Ordinance or any works carried out in accordance with a permission granted by any competent authority before that date;
(c) any highway in respect of which a building line has been determined in accordance with Section 16.
6. He has further submitted that other law is the National Highway Authority Act, 1991 and the rules framed thereunder known as National Highways and Strategic Roads Control Rules, 1998. The relevant provision is contained in Rules 3 and 4 of the above Rules which reads as follows:- "3. Restriction on Ribbon Development.--(1) Subject to sub-rule (2), no person shall, without the consent, in writing, of the Authority, erect any building or structure on land:--
(i) within seventy meters from centre line of a National Highway and no industrial building within one hundred meters on either side of the centre line;
(ii) within two hundred and fifty meters from centre line of a motorway;
(iii) within one thousand meters on either side of centre line at all interchanges and service areas in a length of one kilometre beyond connecting point of ramps and loops with a motorway and feeding roads; and (iv)within forty meters from centre line of the nearest carriageway in case of sections of a National Highway or strategic road which is situated in Municipal limits
(2) No such restriction on ribbon development referred to in sub-rule (1), shall apply in case of--
(a) any building which is used or intended to be used mainly or exclusively for purposes of or relating to cultivation of land adjacent thereto otherwise than as a dwelling house or a commercial property;
(b) any work begun before the date of coming into force the Highway Ordinance, 1959 (W.P. Ord. I of 1959), or any other provincial law on the subject or any work carried out in accordance with permission of any competent authority before that date; or (c)any National Highway in respect of which a building line has been determined under Rule 5 or under any provincial law before the commencement of the Act.
4. Prohibition to construct or layout any means of access. No person shall, without the consent, in writing, of the Authority, construct or layout any means of access to or from a National Highway, strategic road, motorway or any other road declared as such under the Act."
7. Mr. Jhamat Jethanand has contended that under the relevant provision of law the Administrator Town Committee is not empowered to issue the impugned notice and even an officer competent in law is merely empowered to remove the structure and is not empowered to remove the owner from the possession of the land.
8. He has submitted that through the impugned notice the possession of the applicants was also intended to be taken away therefore the impugned notice was without jurisdiction and the learned two Courts below have not considered this aspect of the matter.
9. On the other hand Mr. Ghulam Shabbir Memon, learned counsel for the Respondent No. 4 has pointed out that the impugned notice was issued by the Administrator/Assistant Commissioner and the Assistant Commission was empowered to issue notice under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975.
10. Mr. Masood A. Noorani, learned A.A.-G. has pointed out that the jurisdiction of Civil Court is barred in respect of a notice issued under Section 3 of the Sindh Public Property (Removal of Encroachment)
11. Act, 1975 and a person aggrieved with issuance of notice may submit the review application under Section 4 of the Sindh Public Property (Removal of Encroachment) Act, 1975 which provides that any person dissatisfied by the order passed under Section 3 may within seven days from the service thereof prefer a review application to the Government or any Authority of officer who has passed such order. It is further provided that the Government or, as the case may be, the Authority or the officer as aforesaid may, after perusing the review petition filed under sub-section (1) and giving opportunity to the petitioner or his duly authorized agent of being heard, confirm, modify or vacate the order. He has further pointed out that the jurisdiction of Civil Court is completely barred under Section 11 of the Sindh Public Property (Removal of Encroachment) Act, 1975 which reads as follows:-
11. Bar of jurisdiction and abatement of suits.--(1) No Civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act, or anything done or intended to be done under this Act.
(2) All suits, appeals and applications relating to, encroachment and dispute that any property is not a public property or, that any lease or licence in respect of such property has been determined, for the purpose of this Act, shall abate on coming into force of this Act: Provided that a party to such suit, appeal or application may, within thirty days of the coming into force of this Act, file a suit before a Tribunal in case of a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined."
12. The learned Additional A.-G. has submitted that the forum available to the applicant was as provided under Section 4, by way of review before the same authority which passed the order and before the Tribunal constituted under Section 12 of the said Act. The learned A.A.-G. has submitted that admittedly the applicant did not prefer any review application before the Assistant Commissioner, Sakrand to issue notice and did not approach the Tribunal having jurisdiction. Mr. Noorani has produced a copy of the Notification issued in the year 2003 whereby all the District Judges in the Province have been appointed Tribunal under Section 12 of the Sindh Public Property (Removal of Encroachment) Act, 1975 within their respective jurisdiction, Mr. Jhamat Jethanand has submitted that at the time of filing suit there was no Tribunal and consequently the applicants had to approach the Civil Court. Even if the contention is correct to the extent that at the relevant time no Tribunal was constituted, it will not confer jurisdiction on the Civil Court which is otherwise barred under Section 11 of the Sindh Public Property (Removal of Encroachment) Act, 1975. If no forum is available to an aggrieved person and the jurisdiction of Civil Court is barred under the law, then the absence of the forum shall not have the effect of conferring jurisdiction on a Civil Court not vested in it, under the law, and particularly when it is specifically excluded. An aggrieved person in such circumstances can approach the High Court invoking the writ jurisdiction which clearly provides that if no remedy is available to a person he can approach the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.
13. In the above circumstances. I am of the opinion, that for the reasons recorded above, the conclusion of the two Courts below that the jurisdiction of the Civil Court is barred, is not open to any exception. As I agree with the conclusion of the two learned Courts below, therefore, I do not find any reason to interfere with the impugned orders. The revision application is accordingly dismissed alongwith the listed application.
14. Before parting with this order I would like to clarify and notwithstanding the rejection of the plaint and dismissal of the revision application by this Court, the applicant shall be at liberty to seek the remedy available to him before the competent forum in accordance with law.