' SYED MAHMOOD ALAM RIZVI, J.--- This criminal revision is directed against the impugned order passed by the learned 3rd Additional Sessions Judge, Karachi East in Criminal Complaint No,21 of 2007, under section 7(1) of the Illegal Dispossession Act, 2005 (herein after referred to as the Act, 2005), by which the application was allowed and the concerned S.H.O. Was directed to get the possession restored to the owner of Plot No,L-122 in accordance with law, vide order, dated 18-3- 2008.
2. Precisely, the facts of the case are that the respondent is the owner of residential Plot No,L-122, Block 12, Scheme No,36, Gulistane-Johar, Faisal Cantt., Karachi measuring 96.66 sq. Yds., while the petitioner has built a house on the residential Plot No,L-124, Block 12, Scheme No,36, adjacent to the respondent's plot measuring 78.11 sq. Yds.
3. It is, alleged that the petitioner had encroached some land measuring 16.29 sq. Feet from the plot of the respondent, therefore, the respondent filed a complaint under section 3 of the Act, 2005 and contended therein that the petitioner has dispossessed the respondent and grabbed the above mentioned area and filed an application under section 7(1) for restoration of the possession at the very first stage, therefore, the impugned order has been passed.
4. The learned counsel for the petitioner, inter alia, contended that in the above case the respondent has filed the criminal complaint under the Act, 2005 with mala fides, as the same was not maintainable, hence the interim orders passed under section 7(1) by the learned trial Court is without jurisdiction. She has contended that the Act, 2005 came in force through Act XI of 2005 on 6-7-2005 and preamble is as under:-- "Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers..." ' and section 3 of the Act, 2005 reads 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.
5. She further contended that this was the case of wrong demarcation and it is admitted fact that the respondent was not residing, hence question of dispossession does not arise and even otherwise no evidence has been placed that the applicant is the land grabber or belongs to group of such mafia and as per inquiry, conducted by the area police, it is established that the applicant has made the construction on extra 16.29 sq. Ft. Towards the plot of the respondent and there was no evidence that the applicant had acquired the said land forcefully or by dispossessing the respondent, therefore, the proceedings before the learned trial Court is coram non judice, as this law pertains to habitual criminals, therefore, the section 3 is penal section.
6. She further contended that in such circumstances, the respondent should have approached to proper forum, but with mala fides and ulterior motives, she made a shortcut and the learned trial Court wrongly assumed the jurisdiction and in slipshod manner directed the S.H.O. To restore the possession of the extra 16.29 sq.Ft. Land of the respondent. She further contended that, as she has constructed a house, therefore, all structure of the house would be affected and in such manner the house would be collapsed.
7. Conversely, learned counsel for the respondent pointed out that the documents of the K.D.A.
Allotment, possession order and site plan clearly supports the case of the respondent and it has been proved by the inquiry of the S.H.O. And the evidence of the respondent in trial Court that the applicant has encroached the 16.29 sq.Ft. Land of the respondent, therefore, under section 7(1) of the Act, 2005, the learned trial Court has rightly directed the S.H.O. To have restored the possession of the said land to the respondent. He further contended that per section 3(1), the case is made out against the applicant and the impugned order has no illegality, hence this criminal revision is liable to be dismissed.
8. Heard both the counsel and perused the record very carefully.
9. The learned counsel for the applicant rightly argued that the intention of the Legislature was clear to curb the land grabbers and land mafia, who were involved in grabbing the plots and also involves the owners in frivolous litigations just to blackmail or usurp their plots or house, etc. And there were lot of cases and petitions pending, even in this Court, therefore, just to avoid the multiple litigations and to resolve the matters expeditiously this act has been enforced, therefore, during the pendency of the complaint the powers have been given to the Sessions Judge that he may restore the possession immediately, if prima facie, proved that the person has been dispossessed from his lawful/legal possession.
10. The case of the respondent, per documents and inquiry of the police and as per her evidence, recorded in the trial Court, is prima facie correct that 16.29 sq.Ft. Land from the plot of the respondent has been encroached by the applicant. Though the case does not fall within the ambit of this Act, 2005 as section 3 should have nexus with the preamble of the Act and in this case, such fact is lacking. This is the case of wrong demarcation and, as a result, the applicant has constructed his house on some land of the respondent, hence jurisdiction, taken by the learned trial Court, is not sustainable in law, therefore, the impugned order is hereby set aside.
11. It is admitted fact that the applicant has encroached the land of the respondent and has not given any plausible explanation, therefore, the applicant is hereby directed to pay at least double amount of the land B encroached by him to the respondent against the market price, which shall be determined by the Nazir of this Court and after the determination, the applicant has to deposit the amount within 30 days to the Nazir of this Court, otherwise, the concerned department i.e. K.B.C.A./Faisal Cantonment shall demolish the construction raised by the applicant on the respondent's plot measuring 16.29 sq.Ft.
12. In the above terms this criminal revision application is allowed. This Nazir would ascertain his fee and the same be paid by the applicant.
' All the exercise shall be completed with 90 days.
13. These are the reasons of my short order dated 19-8-2008.