IMTIAZ ALI, J.---Through present civil revision petitioners have called in question order of learned Senior civil Judge, Peshawar dated 22-2-2010 whereby their application for rejection of plaint under Order VII, Rule 11, C.P.C. Was dismissed and also the order of learned Additional District Judge, Peshawar dated 22-2-2010 dismissing their appeal against the order of learned trial Court.
2. Facts in brief relevant to the resolution of present civil revision are that respondent is a lessee of a restaurant situated in Shalman Park Phase-II, Hayatabad, Peshawar owned by petitioners (Peshawar Development Authority) by- virtue of Lease Agreement dated 5th of April, 2003, the initial period of lease as per terms and conditions of the lease agreement being 15 years.
3. This lease was cancelled by Deputy Director (Estate Management) of the Authority through cancellation order dated 19-11-2009. Respondent challenged such cancellation order dated 19-11- 2009 before civil court through a civil suit, wherein, he sought a declaration that he was lessee of the suit property for 15 years since January, 2003 and cancellation order dated 19-11-2009 was based on mala fide, hence, illegal and ineffective upon his rights arising out of the lease agreement. He also sought a declaration against the alleged illegal sealing of the suit property and sought mandatory injunction directing petitioners to de-seal the suit property. In the body of the plaint it has been claimed that respondent had incurred expenses to the tune of Rs,93 lacs on repair/improvement/development of the suit property and even if the cancellation of lease was held to be legal he was entitled to recovery of such amount of improvements etc. On service of notices to the petitioners they entered appearance and before filing written-statement moved an application for rejection of plaint under Order VII, Rule 11,C.P.C. On the ground that suit property was a public property and lease thereof in favour of respondent had been cancelled, therefore, respondent was unauthorized occupant of the suit property, hence jurisdiction of civil court was barred under section 11 of N.-W.F.P. Public Property (Removal of Encroahment) Act, 1977 as the dispute raised in the case was exclusively triable by Tribunal constituted under section 13 of the same Act. This application under Order VII, Rule 11, C.P.C. Was however, dismissed by the trial Court and appeal of petitioner also failed, hence present civil revision against the aforesaid two orders.
4. I have heard learned counsel for the parties at length, gone through the record, provisions of North-West Frontier Province Public Property (Removal of Encroachment) Act, 1977, rule framed thereunder and the judgments cited by learned counsel for the parties, in support of their respective contentions.
5. North-West Frontier Province Public Property (Removal of Encroachment) Act, 1977 (hereinafter referred to as the Act) is a special law empowering the authorities constituted thereunder with extraordinary powers for removal of encroachment and eviction of un-authorized occupant from public property in a speedy and effective manner. The preamble of the Act clearly lays down that the purpose behind enactment of such special law is to provide for measures for removal of encroachment from public property and for matters ancillary thereto. Section 2 clause (C) defines "encroachment" in clause (h) "public property' has been defined while under clause (j) thereto 'unauthorized occupant' means a person who has made encroachment on, or is in occupation of.
Any public property without the express permission or authority of a competent authority and includes a lessee or licensee who after the expiry of period of lease or license or on determination of such lease or licence, continues to remain in occupation of any public property. Section 3 of the Act authorizes government, or any authority or officer authorized by Government to direct an un- authorized occupant to vacate the public property and to remove the structures, if any, raised by him on the public property. The applicability and scope of various provisions of the Act have been interpreted by the superior courts in various judgments and while examining the scope of ouster clause contained in section 11 of the Act. This court in a case reported in 1990 M LD 815 laid down the following criteria:-- ' The preamble of the Act clearly provides the purpose and the spirit underlining the enactment which in unambiguous words, is the removal of encroachment over public property through a special machinery in a speedy manner. While raising an objection to the jurisdiction of the ordinary Civil Court in a case like the present one, there must be made a positive assertion that the property in dispute is public property and that it has been encroached upon or that the public property was under the lease or licence which has been terminated or withdrawn. That the machinery provided under the Act has been set in motion for removal of such encroachment. When both these conditions are proved to the satisfaction of the Court to exist, when the civil court would have no jurisdiction in the matter for removal of encroachment and for matters ancillary thereto. b Now if the case in hand is tested on the aforesaid criteria it fulfils the first condition as there is no doubt that suit property is public property and it is also an admitted fact that the lease of suit property granted to respondent has been cancelled, rightly or wrongly. However, there is nothing on the record to show fulfilment of 2nd condition i.e, the machinery provided under the Act has been set in motion for removal of encroachment and or eviction of unauthorized occupant, because machinery under the Act activated by issuance of an order under section 3 of the Act. The contents whereof are reproduced below:--
3. Removal of structures.--(1) If Government, or any authority of officer authorized by Government in this behalf, i4 satisfied that any person is an unauthorized occupant, it or he may, by order in writing, direct such person to vacate the public property and to remove the structures if any, raised by him on the public property, within such period as may be specified in the order; provided that such period shall not be less than three days.
7. What is before this court and also the trial-Court is an order by lessor cancelling the lease of suit property in favour of respondent. The impugned order dated 19-11-2009 neither contains the ingredient of section 3 nor can be termed as having issued by authorities mentioned therein as according to section 3 (1) If Government or any authority or officer authorized by Government is satisfied that any person is an unauthorized occupant can direct such person to vacate the public property. It was argued vehemently by learned counsel for petitioner that impugned order dated 19-11-2009 was in fact an order under section 3 of the Act and must be treated as such, because the three days time given to the respondent for vacating the premises corresponds with the same time referred to in section 3, therefore, non-mentioning of relevant provision of the Act in impugned order is of no consequence. This argument of learned counsel cannot be acceded to and in fact is vitiated by rule 3 of N.-W.F.P. Public Property (Removal of Encroachment) Rules, 1981 framed in exercise of the powers conferred by section 17 of the Act which unambiguously lays down, the contents of order under section 3 as under:-- ' An order under section 3 shall as far as possible.
(a) contain the description of the public property which has been encroached upon by giving survey number, plot number, metter bounds, etc., or any other description to identify the property; *(b) the nature of the encroachment required to be removed.
' Not only the impugned order does not fulfil the requirement of section 3 of the Act read with Rule 4 of he rules framed thereunder, on the contrary it expressly states to have been issued under the provision of allotment regulation, N.-W.F.P. Building Regulations, 1985 and Local Government Ordinance, 2001. The relevant portion of impugned cancellation order is reproduced below:-- "Whereby you were issued a notice of No-Confirmative Land Use in change of business whereby instead of running a Restaurant, you are illegally and un-authorisedly running a Super Store. Since your subject activity is a clear violation of allotment regulation Clause VII of lease letter and N.- W.F.P., Building Regulations 1985 also section IV of Local Government Ordinance, 2001.
' In these circumstances this Department is left with no alternative but to cancel the subject lease, and direct you to hand over the physical possession of the premises within three days of the issuance of this letter."
8. In the face of above clear provision of law and the contents of the impugned order the view of learned counsel for petitioner that the impugned order was passed under section 3 of the Act and resultantly machinery provided under the Act has been set in motion is wholly misconceived.
Therefore, since neither any proceedings have been initiated/concluded nor any order has been passed under the relevant provisions of the Act the bar contained in section 11 of the Act could not be pressed into service in the present case. Besides, it is by now well-established and consistently affirmed principle of law that provision of special aw seeking to oust the ordinary jurisdiction of courts are to be construed strictly with a pronounced leaning against ouster. Under the Act under consideration, jurisdiction of civil courts is barred only to the extent of matters which are to be exclusively tried and determined by the Tribunal under section 13 of the Act. Under section 13 of the Act Tribunal has exclusive jurisdiction to adjudicate upon:--
(a) a dispute that any property is not a public property; or
(b) that any lease or licence in respect of such public property has not been determined for the purpose of this Act.
9. None of the above two issues require determination in the present case because as has been rightly asserted by the petitioners in their grounds of revision, it is admitted position that suit property is public property and the lease of the same in favour of respondent has been cancelled.
In this view of the matter, there remains nothing to be decided by the Tribunal of exclusive jurisdiction. While the issues which required resolution in the present case are as to whether cancellation of lease in favour of respondent by petitioners is in accordance with the terms and conditions of the lease, whether petitioners had legal authority to seal the suit property and also that whether respondent is entitled to claim and receive the alleged amount spent by petitioners on improvement of suit property.
10. Looked at from whatever angle, only the civil court of general jurisdiction, therefore, can resolve the dispute between the parties. In my above view I am supported by the judgment of this court reported in PLD 1988 Peshawar 159.-- "----S. 11---Removal of encroachment---Jurisdiction of Tribunal---Finality attached to decisions of Tribunal---Scope and extent of---Where action has been initiated or concluded by specified authority, for the removal of encroachment from, and for demolition of the construction, if any, raised on public property, jurisdiction to decide the dispute whether or not same related to public property would exclusively vest in the Tribunal constituted under provisions of the Act---Where however, no action had been taken or concluded in accordance with the procedure prescribed in Act V of 1977, but a cause of action had been furnished to the aggrieved person, independent of the provisions of or the proceedings under the Act, or the dispute related to matters not provided for in the Act, then the aggrieved person would have remedy before the civil court which would have jurisdiction to determine all such matters, including the question whether or not subject-matter of suit was a public property."
11. The upshot of the above discussion is that judgments of the two courts below are based on proper appreciation of record and application Of relevant law on the subject, therefore, do not call for interference by this court. Resultantly, this civil revision is dismissed with no order as to costs. .