IJAZ ANWAR, J.---Astaghfirullah, the petitioner herein, alleges to be the lawful owner of land/house on the strength of a mutation No,6537 attested on 7.2.1999 of village Azakhel Bala, Tehsil and District Nowhsera has questioned the notice dated 20.10.2016 issued by the respondents.
2. Challenging the same, the petitioner has filed this petition with the following prayers:- "It is therefore, humbly prayed that on acceptance of this writ petition: i. The impugned order dated 20.10.2016 may kindly be declared as null and void. ii. An appropriate direction/writ may please be issued to the respondents/department not to demolish the house of the petitioner which is the ownership of the petitioner on the strength of valid mutation. iii. The respondents/department may please be restrained from any adverse action against the petitioner without proper demarcation of the Khasra No,433 of Muza Aza Khel, Nowshera. iv. Any other relief, this Hon'ble Court deem appropriate in the facts and given circumstances and which has not specifically been asked for, may also be granted in favour of the petitioner"
3. The short facts given in this petition are that being lawful owner in Khasra Nos,432 and 433, the petitioner has constructed a house in the year 2000. The petitioner was served with a notice dated 12.8.2016 purported to be under section 3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 (Act No,V of 1977) (hereinafter to be referred as Act No,V of 1977). The petitioner challenged the notice before the Encroachment Tribunal/Additional District Judge-III, Nowshera. This petition was decided on 24.8.2016.
4. Again the petitioner was served with a similar notice dated 20.10.2016 under section 3 of the Act ibid, this time by the XEN Irrigation, Peshawar Division, Peshawar for the allegations of encroachment and violation of section 70 of the Canal and Drainage Act, 1873.
5. This court called the comments of the respondents and also suspended the impugned notice dated 27.10.2016. In the comments, the respondents raised preliminary objection about the jurisdiction of this Court besides replied on factual side too. Relevant paras are reproduced for convenience:- "IV. The notices have been issued under Khyber Pakhtunkhwa Removal of Encroachment Act, 1977; therefore, it is the domain/jurisdiction of special court/tribunal to decide such like matters after trial/investigation/inquiry.
1. That para-1 of the writ petition is correct to the extent of mutation No,6537. It is worth mentioning that vide mutation No,6537, the petitioner had purchased property in Khasra No,433 while at the same time Khasra No,432 (which is Shamilat Deh and Chair Mumkin Khwar) has been encroached upon by the petitioner to the extent of 9 Marla which needs to be removed through the basis of law, while some the property in Khasra No,433 is to be acquired along with other property in this respect site plan, report of Revenue Field Staff and Notification under section 4 of the Land Acquisition Act, 1894 is attached, therefore, on the foregoing basis para No,1 is incorrect, baseless and against facts and law".
6. The learned counsel for the petitioner contended that the petitioner is lawful owner in Khasra Nos,432 and 433 and necessary entries to this effect are incorporated in the record of rights. The petitioner has constructed a house within the limits of his ownership and no encroachments were ever made. He contended that initially the petitioner was served with a notice under section 3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 by the Assistant Collector Grade-I, Nowshera. The petitioner challenged the notice before the Tribunal constituted under (Act No,V of 1977). The petition was declared as infructuous by the Tribunal vide order dated 24.8.2016 allegedly on the acquisition of Khasra No,433 and issuance of Notification under section 4 of the Land Acquisition Act 1894. Learned counsel further contended that now again vide Notice under section 3 of the (Act No,V of 1977) read with section-70 of the Canal and Drainage Act 1873, the Divisional Officer, Drainage Sub-Division Irrigation Department, Peshawar served him allegedly encroaching the bank of Palosan Drain, which is legally not tenable. Firstly on the ground that the Provincial Government is never recorded as owner in the nearby Khasras nor the alleged encroached area comes within the definition of Public Property. He also argued that it is only vide Notification dated 28.12.2016, issued in Gazetted Notification dated 13.1.2017 that Khasra Nos,432/433 were acquired. The learned counsel referred to the Map prepared by the respondents for acquiring land for the purpose of "Rehabilitation/Missing Link of Paloseen Khwar" and claimed that it is contrary to the Map obtained from Google Earth. He thus questioned the acquisition process as illegal and unlawful.
7. The learned AAG, however, argued that the petitioner can raise all these questions before the Tribunal under sections 1 of the Act No,V of 1977. He argued that for challenging the Notification issued under section 4 of the Land Acquisition Act, 1897, the petitioner has other adequate remedies available.
8. Arguments heard and record perused.
9. Section 2 (J) of the Act No, V of 1977 defines "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--
(i) a lessee or licensee who after the expiry of the period of lease or licence or on determination of such lease or licence, continues to remain in occupation of any public property:
(ii) a person inducted into any public property by the lessee or licencee thereof; and
(iii) every member of the lessee's or licensee's family who remains in occupation of any public property after the expiry of the period of lease or licencee or alter the determination of the lease or licence in respect of the same.
10. Section 3 authorizes the Government or any authority or authorized officer to issue notice for the removal of encroachment etc, as specified in the notice. Similarly under section 11 of the Act No,V of 1977, the Notices issued under section 3 can be questioned before the Tribunal. For convenience, section 11 is reproduced below:- "11.(1) No Civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or license in respect of such public property has not been determined for the purpose of this Act, or anything done or intended of purported to be done under this Act.
(2) All suits, appeals and applications relating to encroachment or disputes referred to in subsection (1) and pending in any court shall abate on the coming into force of this Act: Provided that a party to such suit, appeal or application may, within thirty days of the coming into force of this Act, file a suit before a Tribunal in case of a dispute that any property is not a public property or that any lease or license in respect of such public property has not been determined".
11. The points raised about the status of the alleged encroached area to be public property or otherwise are in fact the questions, that gave exclusive jurisdiction to the Encroachment Tribunal constituted under Act No, V of 1977. Similarly when once the petitioner has questioned the first notice dated 12.8.2016 before the Tribunal, then there is no occasion for him to bypass that forum and file this petition against the second notice dated 20.10.2016.
12. Section 13 of the Act No,V of 1977 gave exclusive jurisdiction to the Tribunal to adjudicate upon a dispute that any property is not a public property. Similarly, in view of the availability of the alternate and adequate remedy to the petitioner, the constitutional jurisdiction of this Court cannot be invoked in routine. Reference can be made to 2014 SCM R 122.
13 . We, therefore, would not comment upon the controversy raised before this Court by the petitioner lest it may prejudice the case of either party but would left it to the forum constituted specifically for the resolution of such disputes under the law.
14. For the above stated reasons, this petition is held to be not maintainable and is dismissed accordingly. However, the petitioner would be at liberty to approach the appropriate forum under the law, if he is so advised.