MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This petition is directed against the interim order dated 20.01.2014 passed by the Sessions Judge Usta Muhammad ("trial court") in Criminal Complaint No,2 of 2013 ("the complaint"), whereby the application under Section 7 of the Illegal Dispossession Act, 2005 ("the Act") was accepted and the petitioner was restrained from cultivation, plough or utilization of the agricultural land measuring 24 Acres situated at Gandakha under Survey NoS.30/3, 31/3-1, 32/3-4, 33/4, Circle No,(ii) chak No,35, Tehsil Gandakha, District Jaffarabad ("land in dispute").
2. Relevant facts for decision of the instant petition are that respondent No,1 is the recorded owner of the agricultural land. He leased out the said land to the petitioner on Ijara in the year 2001, which continued till Rabi crops, 2013. After Rabi 2013, the petitioner failed to hand over the land in dispute and started cultivation of Kharif crops 2013-14, whereas the respondent No,1 was not interested to extend the said Ijara after Rabi 2013, thereby the petitioner illegally occupied the land, which is in his illegal occupation till date. On such allegations the respondent No,1 filed the complaint before the learned trial court. On receipt of report dated 02.07.2013 submitted by the SHO police station Bagh Head, Tehsil Gandakha, the learned trial court passed an order on application under section 7 of the Act, and the petitioner was restrained from cultivating or utilizing the land in dispute for agricultural purpose.
3. I have heard the learned counsel for the parties and have also gone through the record. Perusal whereof reveals, that the respondent/complainant contended that the land in question was leased out to the petitioner in the year 2001 and the duration of lease was already expired after Rabi 2013.
He claimed that after expiry of agreement, the petitioner is not surrendering possession of the land but has grabbed the same. On the other hand the petitioner relied on agreement dated 07.03.2002, which shows that the respondent/ complainant had sold out his 24 acres land (48 Jaribs). Though, he admitted that initially the land was on ijara, but stated that subsequently it was sold out at the rate of Rs,50,000/- per acre and the sale proceeds whereof were already paid to the respondent/complainant.
Although the contention of both the parties are divergent in nature, wherein one claims that after ijara the same has been grabbed and the other claims that after ijara the same has been sold out to him. Be that as it may, the respondent has come to the court on plea of illegal dispossession, while the petitioner opted to have recourse to the civil court and filed a civil suit, therefore, without rendering any observation on the respective pleas introduced by the parties. The matter in hand relates to alleged illegal dispossession of the respondent from the land in dispute, therefore the contention raised from both sides would be visualized in the light of the Act and to better understand the preamble of the Act is relevant, which provides as under: "Whereas it is expedient to protect the lawful owners and occupiers of immoveable properties from their' illegal or forcible dispossession therefrom by the property grabbers."
If the contention of respondent/complainant is admitted in toto the preamble and provision of section 33, Balochistan Tenancy Ordinance XXIV, 1978 ("the Ordinance") will come into play, which provides as under: "Preamble. Whereas it is necessary to provide a law to govern the rights and liabilities of tenants and the landlords in lands in the province of Balochistan and matters connected there with."
33. Cognizance of ejectment suit. A suit of ejectment by a landlord against his tenant shall be filed in a revenue Court of an Assistant Collector of 1 grade, hereinafter referred to as the Court"
Therefore, in such view of the fact that the dispute between the parties does not fall within the purview of the Illegal Dispossession Act, 2005, rather the case of respondent/complainant comes within the purview of the Ordinance, which provides a complete procedure for ejectment of tenants, thus the proceedings initiated under the Act is coram non judice. On the other hand the petitioner has also filed a suit against the respondent No,1 bearing Civil Suit No.21 of 2013 for "Declaration, Specific Performance and permanent Injunction", which is pending adjudicaiion before the civil judge Usta Muhammad. The preamble of the Act clearly manifests that only those cases will come within the purview of the Act in which no civil litigation is pending or dispossession thereof is not governed by any other law.
The preamble of the Act reflects that the Act was enacted to protect the lawful owners and occupiers of the immoveable property from their illegal and forcible dispossession by the land grabbers and further to discourage the unauthorized and illegal occupants. The Act, being special law empowered the court to conduct special investigation within the stipulated period and after receipt of the investigation report, the court was required to apply its mind as to whether the complaint shall proceed further under section 5(2) of the Act or not. When the court reaches to the conclusion that a prima-facie case is made out for taking cognizance thereafter the court is required to proceed further and then to pass an interim order and if the question of dispossession prima facie is not made out the court is not bound to proceed with the complaint but the same shall be dismissed and the complainant may approach the court of competent jurisdiction for redressal of his grievance. The spirit of the Act is to proceed against the persons, who are professional land grabber or members of land mafia, and not against a person who is in lawful occupation. In the instant case complainant himself pleaded that the respondent was his tenant/lessee, therefore, the respondent is a lawful occupant of the land in dispute and his case is covered in terms of section 2(c) of the Act. The Act is a special enactment and in case where a civil litigation is pending between the parties particularly, when the question of title is subjudice before the court of civil jurisdiction, and issue in dispute, is yet to be determined, the provision of the Act cannot be invoked.
Thus, in view of above discussion the complainant's case does not come within the purview of the Act because he had not been dispossessed by the respondent but the respondent is in lawful occupation being tenant/lessee of the land and as already discussed earlier that the civil suit for specific performance is pending adjudication between the parties. Therefore, complaint under the Act is not maintainable.
In view of the discussion made herein above, petition is accepted, impugned order dated 20.01.2014 passed by the trial court is set aside and the proceedings initiated on complainant No, 02 of 2013 filed by the respondent before the trial court under sections 3, 4 and 8 of the Illegal Dispossession Act, 2005 are hereby quashed.
Resultantly, the petitioner Muhammad Alam son of Muhammad Hashim is acquitted of the charge.