Instant constitutional petition assailed the judgment dated 9.1.20(17 passed by the learned Additional District Judge, Kamalia District Toba Tak Singh, to be declared illegal, void and of no legal consequence, whereby complaint filed by Respondent No, 2 under Section 3 of the Illegal Dispossession Act, 2005 was accepted and petitioner was directed to hand over possession of the disputed property falling in Square No, 6 Killas No, 3 and 4 of Chak No, 666/7-G.B. Tehsil Kamila District Toba Ta.k Singh to the complainant forthwith.
2. Precise relevant facts, as deciphered from the record, are that Respondent No, 2 in his complaint under Section 3 of the Act (ibid) asserted that on 22.6.2006 at about 11/11 i.m. all the 8 named accused respondents while armed with lethal weapons, entered into his land and in order to occupy it, ploughed the same and occupied it, forcibly. Respondent No, 2 did not allege in his complaint that the assailants were property grabbers or they belonged to "Qabza Group"/"Land Mafia" or they have such antecedents.
3. Case of the writ petitioner was that he had filed a suit for possession through pre-emption against the sale of a part of joint holding in his possession and the Court cognizant of it, had required status quo to be maintained but Respondent No, 2 just to overawe, filed his complaint under Sections 3, 5 and 7 of the Illegal Dispossession Act, 2005. According to him, he was in actual cultivating possession of the land since before filing of the suit and complaint, which was also reflected in the revenue record in form of Khasra Girdawari. Writ petitioner further asserted that he did not dispossess Respondent No, 2 and allegations in this behalf, were unfounded.
4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, Respondents No, 2 had neither asserted that the petitioner is a Property Grabber or belongs to some Qabza Group/Land Mafia nor he produced any proof that the petitioner was earlier involved in any such activity. "Preamble" of the Illegal Dispossession Act, 2005 clearly explicits that this legislation was made to being to book the Property Grabbers who illegally or forcibly dispossess the owners/occupiers of immovable properties. The preamble of Act (ibid) reads as under: "Where as it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession there from by the Property Grabbers".
Besides it, a Full Bench of this Court in the case of Zahoor Ahrnad and 5 others vs. The State and 3 others (2007 P.Cr. R. 201) has not only propounded the view that owners/occupiers of immovable properties, dispossessed' by persons having no antecedents of their involvement in property grabbing must have resort to ordinary law of the land, as Act 2005 is not applicable to their complained dispossession. Even otherwise, possession of the suit land was being controlled by the Civil Court cognizant of petitioner's suit for possession through pre-emption by issuing a "status quo" order and during currency of this order, the impugned order could not have been passed.
Scan of record and impugned order revealed that provisions of the Illegal Dispossession Act, 2005'were not attracted to the case in hand but inspite of it, those were invoked and an unwarranted order of restoration of possession was passed.
5. For the reasons noted above, instant petition is bound to succeed and is accordingly accepted.
The order dated 9.1.2007 passed by the learned Additional District Judge, Kamalia District Toba Tek Singh is declared to be void and non-existent in the eye of law, with the result that complaint of the respondent No, 2 under Illegal Dispossession Act, 2005 shall be deemed to have been dismissed.
There will be no order as to costs.