1. ' MUNIB AHMAD KHAN, J.--- This revision has been filed against the order, dated 23-5-2008 passed in Criminal Petition No,178 of 2008 filed under sections 3 and 8 of the Illegal Dispossession Act, 2005.
2. Learned counsel for applicant submits that respondent No,1 was his tenant, against whom a rent case was filed and at the end of rent proceedings eviction was ordered, the applicant was allowed and handed over possession of the premises through writ of possession with the assistance of bailiff on 28-3-2008 but immediately thereafter respondent No,1 in collusion with respondents Nos.2 to 4 took over the possession illegally by break opening the lock of the premises/shop. When this information was received by the applicant on 4-4-2008 through the neighbour of his shop, he approached the concerned police station but no action was taken. Consequently, he filed an application under section 3 of the Illegal Dispossession Act, 2005 for restoration of possession of his Shop No,4, Sikandar Plaza, Plot No,SC-10, Sector 11-H, U.P. More North Karachi and action against the respondents for their illegal act.
3. ' He further states that the matter, under the Illegal Dispossession Act before the learned Additional District Judge, was not contested by the respondents nor there is anything which reflects that even notice of this application was given to the respondents but even then detailed order on presumed merit was passed by the learned Additional District Judge. Observation of learned Additional District Judge is that the Illegal Dispossession Act, 2005 is meant for only land grabbers and will not apply to other sort of dispossession cases in which land grabbers are not allowed. The learned Additional District Judge has relied upon a judgment reported as PLD 2007 Lah. 231 and by misinterpreting the same it has extended his opinion to all sorts of dispossession except the acts committed by land grabbers. On earlier dates when matter was taken, notices were issued but none appeared for respondents even after issuance of bailable and non-bailable warrants against them and police reported that the respondents are not traceable. In such a situation, premises was sealed through police and matter is taken up for hearing.
4. ' Learned counsel for applicant submits that the Court has failed to hear the applicant and to consider the authority of Honourable Supreme Court i.e. PLD 2007 SC 423 as well as authorities of this Court reported in PLD 2008 Kar. 369, PLD 2008 Kar. 400 and PLD 2008 Kar.
5. 518.
6. ' Mr. Saleem Akhtar, learned Additional Prosecutor-General, Sindh and Ms. Farkhunda Mangi, learned Advocate for the State, submit that this is the case in which learned Additional District Judge has totally misconceived the very purpose of said section of Illegal Dispossession Act and has failed to realize the gravity for which the law has been enacted. They have also relied upon the above reported case-laws and have also prayed that some strictures be passed against the learned Additional District Judge, who failed to consider the above authorities and has wrongly interpreted the provision of Illegal Dispossession Act and passed the impugned order.
7. After hearing the learned counsel, it appears that learned Additional District Judge has misinterpreted order of the Lahore High Court and words "property grabbers" mentioned in the preamble of the Illegal Dispossession Act, 2005 has prevailed upon her. The Court has failed to appreciate the meaning of the words "owner or occupier" given in the said statute and has also failed to go through section 3 of the said law, which is reproduced as under:--- "3. Prevention of illegal possession of property, etc.--- (1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property.
(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code."
8. The Honourable Supreme Court in its cited judgment i.e. PLD 2007 SC 423 has observed that Illegal Dispossession Act has been promulgated to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants and all cases of illegal occupants will be covered by the Act, except a few where such issue has already been taken up. This Court in the authorities referred to above has observed that a person not in legal possession will be possessing the property illegally and fall within the meaning of Illegal Dispossession Act and the said law will be applicable against it. It has been observed in PLD 2008 Kar. 518 as follows:--- "It can be gathered from the provisions of the above Act that certain reliefs have been provided against menace of illegal activities of the land grabbers and since this crime is assuming alarming position, therefore, this Act authorizes the trial Court to proceed summarily and with this intention short limit of time for every stage of the proceedings has been provided under section 5 of the Act."
9. ' It has further been observed in PLD 2008 Kar. 369 and the relevant portion of the same is reproduced as under:--- "The perusal of section 3 of Illegal Dispossession Act, 2005 shows th .t it prohibits and restricts a person from taking into possession or occupying a property to which he is not legally entitled and if a person remains in illegal possession despite the fact that he is not the lawful owner nor legally authorized then on every passing day fresh cause of action continues to the actual owner who has been dispossessed even prior to Illegal Dispossession Act, 2005. Said section prohibits that no person without lawful authority will grab, control or occupy the property. Keeping in view the wording of section 3, it appears that said section is prohibiting illegal dispossession, grabbing, control and occupation. As far as the dispossession is concerned, it must have taken place prior to promulgation of the Ordinance but the words control and occupation remain on the scene and cause continuance of illegality by every passing day and if a person is in illegal control or in occupation of property prior to promulgation of the Act then there is no justification that he should justify his position on the ground that since the property has been illegally occupied earlier to promulgation of Act therefore section 3 of the Act will not apply. The said Act, apparently has been promulgated for the public good, keeping in view the menace of illegal possession prevalent in the society and since the Act is towards betterment of the society therefore keeping in view its wording, it will be beneficial if it is to be stretched in a way that very purpose of the Act is fulfilled and the persons who have been deprived of their right in respect to the property should be provided some relief. If the law is made applicable from the cut date of its promulgation then there can be certain instances when a person occupying the property illegally even after the Ordinance would try to wriggle out from the clutches of law by forging a predated document and that would take much time of Court to decide its illegality and the position will further be complicated if a suit is filed on the basis of that document. Under Act 2005, the Sessions Court has ample power to take the cognizance and if from initial inquiry it finds that the case is made out then it must proceed."
10. ' Honourable Supreme Court in the above noted authority i.e. PLD 2007 SC 423 has dealt with the cases of illegal occupants in very strict words and has observed:--- "The Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum. The respondent admittedly was inducted into the premises by a person, who was neither owner nor a lawfully constituted attorney of the owner to have any authority to enter into an agreement of sale on behalf of the owner or deliver the possession of the property to the respondent and thus apparently, he was an illegal and unauthorized occupant of the premises.
11. The contention that Illegal Dispossession Act, 2005, is not applicable to an illegal occupant, who was in occupations of the premises prior to the date of the promulgation of the Act, has no substance. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants."
12. Keeping in view the factual position involved, it appears that if such type of activities as complained by the applicant is allowed, there will be no sanctity to the orders or writs issued by the Court and immediately after eviction of a person through the legal process, he/person thrown away by the Court will reoccupy the same premises and according to learned Additional District Judge the Illegal Dispossession Act will not come to his help, as firstly it is to be determined that whether the illegal occupation fall within the meaning of land grabber or not and as to whether case under Illegal Dispossession Act has been made out or not, hence her approach is totally misconceived and contrary to law. Accordingly, this revision is allowed and the impugned order dated 23-5-2008 is set aside and matter is remanded back. The subject property, which was sealed by the police in .Terms of this Court's order, dated 20-11-2008, be desealed and its possession be also handed over to the applicant while learned District and Sessions Judge is directed to proceed itself with the matter, hear the parties, take appropriate action and pass proper order in true spirit of law deciding thereby the right of parties and their liability to punishment.