ROOH-UL-AMIN KHAN, J.---This writ petition has arisen in the following circumstances:--
2. On 21-4-2010 the petitioner filed a complaint under section 3 of the Illegal Dispossession Act, 2005 against the respondents on the ground that they have illegally dispossessed the complainant from the property in question. The trial Court after hearing the learned counsel for the parties in detail dismissed the same vide order dated 12-7-2010, which is impugned in the writ petition in hand.
3. The complaint under section 3 of the Illegal Dispossession Act has been filed by the petitioner to the effect that a rent agreement dated 13-12-2008 was executed between him and Commandant Station House Nowshera, and in pursuance of the above said agreement the petitioner was put in possession by respondents, of the land bearing survey No,6 situated near Cantonment Board Shops Shuba Bazar G.T. Road Nowshera. After handing over the possession of the disputed property, petitioner has constructed a market consisting of 70 shops, and was ready for starting business in the newly constructed Market, but in the meanwhile he was served with a letter dated 12-9-2009, issued by the Station Head Quarter to stop running further business activity in the Market and ultimately the respondents demolished the Market, with heavy machinery and forcibly dispossessed him from the disputed property. The petitioner asserted in the complaint that due to the above illegal act of the respondents, petitioner suffered damages of an amount of Rs,60,00,000 (sixty lacs). The learned Additional Sessions Judge-I after hearing the parties dismissed the complaint on the ground of non-maintainability vide order dated 12-7-2010. Hence this petition.
4. Before dilating upon the question of dispossession we deem it proper to ascertain whether any rent deed has ever been executed between the parties.
5. According to the Cantonments Act, 1924, there shall be a Cantonment Board for every Cantonment, which shall be a body corporate having perpetual succession and common seal with power to acquire and hold property both movable and immovable and to enter into contract and the Board shall, by the said name sue and be sued. Section 108 of the Act ibid provides that all the properties, which have been acquired or maintained by a Board, shall vest in the Board, and shall be under its discretion, management and control.
6. Chapter VII of Cantonments Act enumerates method and procedure for execution of contract.
Under section 113 of the Act ibid only the Board is competent to enter into, and perform any contract. Section 113 provides that every contract, which involves a value or amount exceeding Rs,100 shall be sanctioned by the Board or by the Executive Member on behalf of the Board.
Admittedly the disputed property bearing survey No,6, situated at G.T. Road Nowshera, is the ownership and vested in the Cantonment Board.
7. In the instant case the Board has not entered into any contract nor has sanctioned the alleged contract as required under the above mentioned section of the Act ibid. Besides, every contract made by or on behalf of the Board shall require to be signed by two members, of whom the President or the Vice-President shall be the one and be countersigned by the Executive Officer of the Board. The contract shall also require to be sealed with the common seal of the Board. As stated in the preceding paras the alleged agreement seems to have been signed by Commandant Station Head Quarter Nowshera, without any lawful authority and without prior sanction of the Board. The Commandant Station Head Quarter Nowshera, under the Cantonments Act, is a person alien to the affairs pertaining to the land and property of the Cantonments, thus any contract improperly executed by a person without authority and fraught with uncertainty is not binding on the Cantonment Board.
8. The arguments of the learned counsel for the petitioner that the petitioner has constructed a multiple storeyed building by spending Rs,60,00,000 (Sixty Lacs) is unpersuasive and contradictory to the alleged rent agreement dated 31-12-2008. In the alleged agreement the rented premises had already been shown as a Plaza, thus question of construction and such of huge investment does not arise. Moreso, no person can construct or erect a building on any land in a Cantonment, except with the prior permission and sanction of the Board. Petitioner has allegedly constructed seventy shops and multiple storeyed market on the disputed property, but failed to produce any required sanction for construction, accorded by the Board. The petitioner has referred to the construction, which is lacking support from an approved building plan and no objection certificate from Military Estate Officer/competent authority.
9. The learned counsel for the respondents has provided GLR and GLR plan regarding property, bearing survey No,6, situated at G.T. Road Nowshera Cantt., with an eye-sketch of Nowshera Cantt.
According to which the disputed land measuring 2.18 Acres is a "Muslim Graveyard". The available record divulges that with regard to the same property i,e, "Muslim Graveyard" another suit for perpetual injunction has also been filed by one Masood Salahuddin, against the present respondents, which is pending adjudication before the Senior Civil Judge Nowshera. The above observed facts clearly suggest the confederacy hatched by the petitioner with certain other persons, against the Cantonment Board and its property.
10. The contention of the learned counsel for the petitioner that the dismissal of complaint, without recording of evidence is unwarranted under the Law is flimsy and unconvincing. Illegal dispossession Act, 2005 is Special Law providing remedies to those, who had been illegally dispossessed from property. It has specifically been enacted to protect rights of owner and lawful occupant from property grabbers and to discover the greedy person who snatches and grabs properties forcibly or tactfully. Very preamble of the Act ibid provides protection to the lawful owner and occupiers of immovable properties from their illegal and forcible dispossession, thus for taking cognizance of the complaint under section 3 of Illegal Dispossession Act, 2005, the trial Court would be under legal obligation to see that:-- 1) Whether the complainant was in possession of the disputed property under a proper legal cover?
2) Whether he has been dispossessed by use of force?
3) Whether the respondent/accused has got no title in the disputed property?
4) Whether the accused party belongs to a group of land grabbers?
5) Whether the complaint discloses an unlawful act and criminal intent?
11. At the initial stage, the complainant shall satisfy the Court about the existence of every ingredient of an alleged offence. If the complainant succeeded to persuade and convince the Court and make out a triable case, the Court will proceed with the matter by taking cognizance of the offence under section 3 of the Illegal Dispossession Act. Without this the trial Court is not obliged to summon the respondent and record evidence like an ordinary Criminal trial.
12. In the instant case the complainant has invoked the aid of the court on the strength of an unfounded, uncertain and doubtful deed. Except the above mentioned deed, an iota of evidence is not available on record to disclose the criminal intent of the respondents. In absence of any material to justify the cognizance, the court is not obliged to proceed with the case and may dismiss the same without proceeding to order an inquiry and investigation and without summoning the accused as held by the honourable Supreme Court of Pakistan in case reported as Waqar Ali and others v. The State through prosecutor/Advocate-General Peshawar and others (PLD 2011 SC 181) with the following observation: -- "However, in order for the Court to exercise its jurisdiction by taking cognizance, certain facts must first be held to exist. These facts which constitute an offence under section 3 of the Act have to be evident from the complaint and documents filed in support thereof Thus, if the necessary ingredients of an offence under section 3 of the Act are not disclosed through the complaint and accompanying documents, the Court of Session will not be justified in exercising jurisdiction and taking cognizance. It will nevertheless have the jurisdiction to dismiss the complaint on the ground that an offence under section 3 of the Act is not made out."
13. From the available record the petitioner failed to disclose any un-lawful act or criminal intent on the part of the respondents, which are preconditions for constitution of an offence under section 3 of the Illegal Dispossession Act. In the circumstance we do not find it possible for us to hold that on the day of alleged occurrence, the complainant was in actual physical and lawful possession of the disputed property and that the accused party has forcibly dispossessed him from the same.
For the forgoing reasons and deriving wisdom from the judgment of the honourable Supreme Court of Pakistan in Waqar Ali's case (PLD 2011 SC 181), the writ Petition in hand being without any substance is hereby dismissed with no order as to costs.