' MUHAMMAD YOUNIS THAHEEM, J.---This judgment is to dispose of the instant writ petition filed against the impugned judgment dated 28.02.2015 passed by learned Additional District Judge/Tribunal, Mardan.
2. The petitioner filed instant petition against the impugned judgment mentioned above by seeking following relief:- "that on acceptance of this writ petition the impugned judgment, decree and order dated 28.02.2015 passed by the learned Additional District Judge/Special Tribunal, Mardan may kindly be declared as without jurisdiction, illegal, void, without lawful authority and of no legal effect and accordingly the impugned judgment, decree and order may kindly be set aside and the suit filed by respondent No.1/plaintiff may graciously be dismissed with cost throughout."
3. Brief facts of the case are that respondent No. 1 had issued notice No.348/DDOR dated 24.05.2012 under section 3 of KPK Public Property (Removal of Encroachment) Act, 1977 vide which respondent No.1 was directed to vacate shops two in numbers known as Inam Medicos within three days which has been challenged by filing suit before the learned District Judge/tribunal by respondent No.1 seeking relief by declaring said impugned notice without lawful authority, against law, facts, void, fraudulent with the plea that plaintiff (respondent No. 1) is not unauthorized occupier and is lawful tenant under petitioner No.1 as fully detailed in the plaint which was entrusted to the learned Additional District Judge-VI/ Tribunal, Mardan for disposal.
4. Present petitioners' on appearance submitted their written statement and the learned tribunal in the light of divergent pleadings of the parties framed the following issues:-- ISSUES:
1. Whether the plaintiff has got a cause of action?
2. Whether the suit is bad for non-joinder and misjoinder of necessary parties?
3. Whether the plaintiff is stopped to sue?
4. Whether this Court has got the jurisdiction to entertain the present suit?
5. Whether plaintiff is defaulter since 1982 and an amount of Rs.3.567 million is outstanding against him?
6. Whether notice No.DDOR/348 dated 24.05.2012 under section 3 of KPK Public Property (Removal of Encroachment) Act, 1977), is wrong, illegal against law and fact?
7. Whether the rent deed was rightly executed in between plaintiff and defendant No.1?
8. Whether defendant No.1 was legally authorized to enter into a contract in respect of disputed shops with plaintiff?
9. What the relief should be?
5. The learned tribunal after framing issues recorded evidence of both the parties and on conclusion of trial and hearing argument had declared the impugned notice dated 24.05.2012 as null and void vide its judgment and decree dated 28.02.2015 impugned herein.
6. The learned counsel for the petitioners contended that the impugned judgment, decree and order passed by learned tribunal is against law, facts based on surmises, wrong presumptions, without lawful authority and jurisdiction. He further added that learned tribunal had not considered the authentic evidence produced by them and had wrongly relied upon the unauthentic evidence produced by respondent No.
1. Petitioners needed the shops for the purpose of construction of overhead bridge. He further argued that suit was liable to rejection as respondent No.1 has not impleaded necessary parties and added that rent deed had not been signed by the competent authority; further argued that respondent No.1 is defaulter also who is liable to pay Rs.
3.567 millions outstanding against him, hence submitted for acceptance of instant petition and prayed for setting aside of judgment and decree passed by learned' Additional District Judge-VI/ Tribunal.
7. As against learned counsel for respondent No.1 contended that respondent No.1 is coming lawful tenant since 1982 and since then is regularly paying rent up till now and is not defaulter; the relationship between the parties as tenant and landlord has been proved through documentary as well as oral evidence and rent per shop was determined by the District Lease Committee appointed after joint statement 'recorded on 24.03.2009 before the then learned appellate Court with the consent of both the parties and in view of said joint statement rent was fixed @ Rs.9000/- per month for each shop with increase of 20% after every 3 years; respondent No.1 wanted to pay/deposit same determined monthly rent of two shops with the petitioners but they refused to receive and on this refusal, respondent No.1 tried to pay the said rent through money order but even then they did not receive it and lastly filed application before the learned Court of Rent Controller for the deposit of rent and it was accepted vide order dated 30.01.2012 by the learned Rent Controller/Civil Judge-H, Mardan and lastly appeal of petitioner No.31/2014 was dismissed by the then learned appellate Court of Additional District Judge-III, Mardan vide judgment and order dated 12.12.2012 which was challenged before this Court through W.P. No.562-P/2012 and that also has been dismissed on 04.12.2014. The learned counsel argued that during pendency of appeal petitioner sent notice No.348 dated 24.05.2012 under section 3 of KPK Public Property (R.E) Act, 1977 and the present respondent No.1 was once again forced to beg before the Court and challenged the vires of that impugned notice before the learned District Judge, Mardan under his tribunal jurisdiction in view of ibid Removal of Encroachment Act. After trial the Tribunal suit has been decreed vide judgment and decree dated 28.02.2015 and so called notice has rightly been declared as null and void so respondent No.1 is lawful tenant under petitioners and not unauthorized occupant and submitted for the dismissal of instant petition with costs.
8. Arguments heard and record perused.
9. The KPK Public Property (Removal and Encroachment) Act, 1977 from its preamble has been aimed to remove encroachment made by unauthorized occupant on public property. So, the preamble of this Act and Section 3 is reproduced for comprehension.
Preamble: WHEREAS it is expedient to provide for measures for removal of encroachment from public property and for matters ancillary thereto.
' Section: 3(1) "If .Government, or any authority or officer authorized by Government in this behalf, is 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 structure, 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.
(2) The order under subsection (i) may be served :by
(a) giving or tendering it to the unauthorized occupant or any adult male person residing with him; or
(b) affixing it at a conspicuous place on or near the public property to which it relates."
10. It is pertinent to mention that under ibid Act the plaintiff has also remedy of . Review under section 4 of the said Act and the record reveals that plaintiff has made effort to avail that remedy by submitting his review petition to respondent No.4 through registered post as narrated in the plaint. However, the provisions relating to review in the ibid Act rare directory in nature, so even, if had not been complied with it has no adverse effect on the respondent.
11. Before this Court the first question for determination is as to whether respondent No.1 is unauthorized occupant and second question is as to whether the Audit Paras Nos.38 and 39 and Advance Audit Para No.68 had some legal nexus for the purpose of ejectment of respondent No.1 through Section 3 of ibid Act and is responsible to deposit rent amount once again since t982 till now.
12. To resolve first question it is necessary to have a very brief glance over the case history. From the perusal of record it is abundantly proved and is admitted position that respondent No.1 was first handed over the possession of two shops through acceptance of his tender vide order No.4006-07 dated 04.07.1982 placed on record as EXPW4/2 and admission during cross-examination by DW1 the representative of all the petitioners in the following words by responding to a suggestion put by the learned counsel for plaintiff/respondent No.1 "it is correct that the plaintiff has not encroached or stopped road." "it is correct that defendant No.1 (Medical Superintendent) received rent without objection."
13. As it has been earlier observed that by the overwhelming evidence it is proved that respondent No.1 is tenant and not unauthorized occupier so in this respect statement of PW 1 the official witness who brought the record of DHQ admitted respondent No.1 as tenant. This witness brought record of receipts of rent from March 2001 to February 2009 as EXPW1/1. Letter No.3767 dated 04.06.2004 EXPW1/2 is about the invoice of payment of 10% increase. Moreover from the same document the existence of rent agreement, documentary proof of receipt of previous rent and order from the Medical Superintendent (hereinafter called as M.S.) to deposit further rat has been recorded as below:-- "You are paying rent on old rate Rs.3138/PM after the increase you should deposit Rs.3453/PM with effect from 01.04.2004 to 30.03.2007. "
M.S DHQ, Mardan
14. EXPW1/3 is investigation report about the audit Para No.6 (2002-2003) by D.M.S. Wherein the true facts had been disclosed to audit authorities that M.S. Is receiving rent and has sent letter EX.PW1/3 to the tenant. In the D.M.S. Report a new and misleading report by declaring the government property as Auqaf property is unfortunate escape from the responsibility to deposit the received rent in the public exchequer.
15. There is lying another audit Para pertaining to year 1996-97 with observation addressed to M.S DHQ, Mardan about physical visit of spot and two shops in possession of respondent No.1 but astonishingly the audit official did not consult and had not bothered to record the statement of shopkeeper Inam Khan the present respondent No.1 with respect to amount of rent deposited with petitioner No.1. However, in the same audit Para it had been admitted that shops were allotted to respondent No.1 in the year 1981 but only smelled irregularity in process of acceptance of rent tender. So the rent of two shops had been proved as regularly deposited with 10% increase but according to audit Para it was not deposited in the government exchequer. Therefore, such like audit Para which on the one hand observes "some irregularities in rent agreement" between respondent No.1 and petitioner No.1 but same advance audit Para is silent about the deposited rent and why was not deposited in public exchequer by the M.S after receiving it from tenant. So not taking legal action against concerned Medical Superintendent is negligent act of the said audit officer and making liable to tenant for deposit it again would amount injustice to the tenant so he must not be vexed twice, thus such kind of advance audit para against private person without inspecting rent rec-eipts and other record of previous deposit placed on record as EXPW1/1 would have no adverse effect on the respondent No.1 and amount of rent received by M.S DHQ, Mardan be realized from the M.S. Of that time according to law.
16. So the findings of learned Tribunal while deciding all issues particularly issues Nos.5, 6, 7 and 8 are based on profound reasoning, proper appreciation of evidence and law and no exception could be taken in this respect.
17. This Court has analyzed the entire record and also the judgment of this Court in W.P. No.562- P/2013 decided on 04.12.2014 about the deposit of rent through Court which has attained finality vide said judgment also the relationship of tenant and landlord has been established so the petitioners failed to prove that respondent No. 1 is unauthorized occupant.
18. Thus, we hold that judgment passed by learned judge tribunal is well reasoned, based on settled principle of law, hence the provisions of KPK Public Property (Removal of Encroachment) Act are not applicable in the instant case, so the petition in hand is dismissed. However, the tenant/respondent No.1 is directed to send copies of deposited rent receipts to the concerned audit officer so that they may be able to save the public exchequer properly according to law.