MUHAMMAD NAEEM ANWAR, J.- Through this single judgment in the instant petition, we intend to decide connected writ petitions as an identical question of law and facts is involved in all these petitions. Particulars of connected cases are as under:
1. W.P No,752-M/2023 Sultan Vs. Govt. of Khyber Pakhtunkhwa through Secretary Housing and Physical Planning and others
2. W.P No.766-M/2023 Abdur Rahman Vs. Govt. of Khyber Pakhtunkhwa through Secretary Housing and Physical Planning and others
3. W.P No.784-M/2023 Waliur Rahman Vs. Govt. of Khyber Pakhtunkhwa through Secretary Housing and Physical Planning and others
4. W.P No.787-M/2023 Muhammad Rahman Vs. Govt. of Khyber Pakhiunkhwa through Secretary Housing and Physical Planning and others
2. Relevant facts of these petitions are that the petitioners, being served with notices by the respondents alleging therein to have encroached upon the public property, filed their respective suits before the learned Tribunal (Additional District Judge/Izafi Zi la Qazi-111, Swat) constituted under provision of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 by claiming therein that khasra Nos. 300 & 301 of the revenue estate of Damghar, Tehsil Kabal, District Swat is their ownership as evident from the record of rights, to have been recorded in favour of their predecessors, which was devolved upon them, with which, the respondents have got no concern, whatsoever and that any deed or document in possession of the respondents adverse to the interest of the petitioners is ineffective upon their rights. They have challenged the notice through their respective suits to be illegal, unlawful, unjustified, unwarranted and is of no legal effect. Respondents No.2 & 3 (Malakand Development Authority/ MDA) contested the suits through their joint written statement by mentioning therein that the property bearing khasra No.300 & 301 is the ownership of Provincial Government, which was acquired in the year 2000 for the purpose of Kanju Township and the acquisition remained the subject matter of litigation from the Court of first instance till apex Court, as such, the suits require dismissal summarily. The learned Tribunal, after hearing the parties and without recording of evidence, dismissed the suits through separate judgments & decree dated 30.05.2023, hence, these petitions.
3. Muhammad Nabi, Advocate representing the petitioners in all these petitions contended that the property was the ownership of the predecessors in interest of the petitioners, which has been devolved upon the respective petitioners who have never remained associated with the process of acquisition as alleged by the respondents, therefore, impugned notices issued to the petitioners are ineffective upon their rights and that the property is not a public property rather it is owned and possessed property of the petitioners. He asserted that the learned Tribunal has not provided any opportunity to the petitioners for producing their evidence in order to substantiate their contentions but dismissed the suits summarily through impugned judgments, which are not in consonance with law.
4. Arguments heard and record perused.
5. It is the case of the petitioners that they being served with notices have filed their respective suits claiming therein that the property bearing khasra No.300 & 301 of the revenue estate of Damghar is their ownership in possession, however, it is astonishing that the extracts from jamabandi for the year 1986-87 and 1985-86 i.e., from first settlement, of the revenue estate of Damghar Tehsil Kabal pertaining to khasra No.300 & 301 have been placed on record either intentionally or inadvertently but it is an admitted fact that even at the time of institution of suits the entries of the revenue papers were neither in favour of petitioners nor their predecessors. Learned counsel for petitioners admitted it at the bar that petitioners have not placed on file an extract from current Jamabandi.
More-so, since there was a reflection of earlier litigation, thus, the record of the cases from the record room of District and Sessions Judge Swat was requisitioned, which transpired that the property was acquired for the purpose of construction of Kanju Township but the petitioners concealed this fact and even an extract from current Jamabandi has not been placed on record in order to determine that the petitioners were owners of the property exclusively or otherwise, however, it transpired that C.R No.271/2010 titled "Haji Shah Noraq and others vs. Government of Khyber Pakhtunkhwa and others" has been decided by this Court on 02.06.2014 regarding the same subject matter, which was the outcome of the decision of the Civil Court, thus, from the record room of this Court, file of C.R No.271 of 2010 was also requisitioned, which is in respect of the property bearing khasra No.300 & 301. The extract from Jamabandi for the year 2001-02 reflects from file of C.R No.271 of 2010 that Mst. Socha Bibi d/o Qasim, caste Afghan r/o Kanju was the sole owner of the property bearing khasra No.300 & 301, whereas, Hazrat Rahman s/o Arshullah caste Gujjar has been recorded as Ghair Dakhalkar (tenant). The suit bears No.155/1 of 2000 instituted on 14.04.2000, dismissed by the then learned Civil Judge/Illaqa Qazi-IV, Swat on 24.03.2007. It is also reflected from record of ibid case that the award was issued on 05.03.2000 and the plaintiffs of suit No.155/1 were claiming themselves to be the owners of the property who have challenged the award but have not been able to prove their contention, as such, their suit was dismissed. The predecessors in interest of the petitioners were plaintiffs No. 6 & 7 in suit No.1551.1. After dismissal of the suit, an appeal was filed which too was dismissed by the learned Appellate Court through judgment and decree dated 07.12.2009. The decision of the learned Appellate Court was maintained by this Court vide judgment dated 02.06.2014 in C.R No.271 of 2010 and judgment of this Court was upheld by the apex Court in judgment dated 20.01.2020 in C.P No.444-P of 2014. When the predecessors in interest of the petitioners have challenged the award pertaining to the disputed property claiming themselves to be owners of it and their suit was dismissed then how could the petitioners file the instant suits claiming themselves to be the owners of the property, which was the subject matter of Civil Suit No.155/1. Issuance of the writ of certiorari is a discretionary relief which can be considered by considering the fact of the case qua the conduct of the party in juxtaposition with the decision impugned before this Court because whenever such writ is issued it refers illegality of the forum below as observed by the Hon'ble Supreme Court in the case of "Darvesh Khan v. Muhammad Sher Khan and others" (1986 SCMR 352) that: "Whenever a High Court is exercising its constitutional jurisdiction for the purposes of certiorari, it is directing a Court under its superintendence to correct any error of law or jurisdiction in a judgment/decision assailed before it in such a manner that the same order or judgment can be "certified" by the same High Court. However, whilst certiorari may be a prerogative of the High Court under Article 199 of the Constitution of Pakistan, it is still a discretionary power."
Reliance may also be placed on the case of "Rehmatullah and others v. Mst. Hameeda Bezum and others" (1986 SCMR 1561).
6. The jurisdiction of the Tribunal is restricted to the extent of declaration that such property is not a public property, regarding which, notices for alleged encroachment were served upon the petitioners/plaintiffs but the requisitioned record negates the version of the petitioners on one hand and concealment of facts on their part is visible on the other hand. The petitioners filed their respective petitions for issuance of 'Writ of Certiorari' which is a curative writ, ordinarily is issued when the Court is of the opinion that a lower Court or a Tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ of certiorari, it may quash the order passed by the lower Court or Tribunal. A writ of certiorari is issued by High Court to the subordinate Courts or Tribunal in the following circumstances: When a subordinate Court acts without jurisdiction or by assuming jurisdiction where it does not exist, or When the subordinate Court acts in excess of its jurisdiction by way of overstepping or crossing the limits of jurisdiction, or When a subordinate Court acts in flagrant disregard of law or rules of procedure, or When a subordinate Court acts in violation of principles of natural justice.
The petitioners have concealed the facts of earlier suit filed by their predecessor in interest from the Court whereas the issuance of writ is a discretionary relief, for which, one of the foremost conditions is that he who seeks the remedy by way of issuance of writ must be fair and one who conceals the facts can never he held entitled for grant of writ. Rel: Nawab Syed Raunaq Ali and. others v. Chief Settlement Commissioner and others (PL1) 1973 SC 236) wherein it was observed that: "...An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a court must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked..."
Learned Tribunal has rightly considered the factum of institution of the earlier suit and dismissal thereof by the civil Court, appeal by appellate Court, civil revision by this Court and Civil Petition by the apex Court, as such, the plaintiffs were not held entitled for the relief of declaration in respect of the property. Even otherwise, the declaration so sought by the petitioners/ plaintiffs could not be granted by the Tribunal especially when they could not place on record any document to substantiate their contention regarding the factum that the property is not public one rather it is their ownership. No doubt the powers of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 are vast as compared to the revisional powers under section 115 of the Code of Civil Procedure 1908 as held in the case of "Manager, Jammu & Kashmir, State Property in Pakistan versus Khuda Yar and another" (PLD 1975 SC 678) wherein it was held that the scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court Suo motu, and Secondly, the Court "may make such order in the case as it thinks fit". However, for such a relief the petitioner must come to th6 Court in fair manner and with all the facts. In the case of Muhammad Lehrasab Khan versus Mst. Aqeel-Un-Nisa and 5 others (2001 SCMR 338) wherein it was ruled by the Supreme Court that: "The High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority. Reference can be made to Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24), Lal Din Masih v. Sakina Jan (1985 SCMR 1972), Muhammad Hayat v. Sh. Bashir Ahmad and others (1988 SCMR 193), Abdul Hamid v. Ghulam Rasul (1988 SCMR 401) and Assistant Collector v. Al-Ratak Synthetic (Pvt.) Ltd. (1998 SCMR 2514). In Rahim Shah's case, supra it was held: "The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted."
7. Furthermore, the contents of the plaint are self-negating the stance of the petitioners who claim themselves to be the owners of the property. In such a scenario when the entries of the record of rights or periodical record were intended to be challenged to be ineffective upon their rights, their claim could only be considered when the suit would have been filed u/s 42 of the Specific Relief Act, 1877, but in these circumstances, no such relief could be granted by the Tribunal in view of its limited jurisdiction as held by the apex Court in the case of "Muhammad Farid and others versus Municipal Committee" (PLD 1999 SC 41) that: "Reading of sections 11 and 12 together, makes it abundantly clear that in cases where the Tribunal has been vested with exclusive jurisdiction, the jurisdiction of the Civil Court is barred, Mr. Mushtaq Ali Tahir Kheli, learned counsel for the respondents Nos. 1 and 2 has argued that the Tribunal has been vested with limited kind of jurisdiction and it has no jurisdiction to determine rights between the parties. In our view, the learned counsel appears to be right because section 13 clearly vests the Tribunal with jurisdiction only to determine whether 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 the said Act. Evidently, the questions dealt with by the Tribunal in the present case did not fall within the ambit of its jurisdiction, as visualized by section 13. It is only in this regard that the Tribunal appears to have been vested with exclusive jurisdiction and the jurisdiction of the civil Court has been barred as indicated by section 11. Mr. Muhammad Ibrahim Satti however, argued that the words or anything done or intended or purported to be done under this Act" occurring in section 11 tend to enlarge the jurisdiction of the Tribunal to any action that may be taken under the provisions of the said Act. This contention of the learned counsel appears to be fallacious on the face thereof as sections I 1 and 13 are to be read together. Section 13 of the said Act hardly leaves any doubt that the jurisdiction of the Tribunal extends to matters only referred to therein. As has been pointed out earlier, it is only where the Tribunal has been vested with exclusive jurisdiction, the jurisdiction of the Civil Courts to that extent has been barred. The said words referred to by Mr. Muhammad Ibrahim Satti indicate that section 11 does not only relate to actions which may be taken under the Act, but the bar provided in the said section would even relate to purported actions that may be taken under the said Act. Therefore, the Tribunal is clearly not vested with jurisdiction to determine questions other than those referred to in section 13 of the said Act and jurisdiction of the Civil Courts in such cases would not be barred."
The jurisdiction of the Tribunal is only to the extent that the property is not the part of public property, therefore, the contention of the petitioners that they were not afforded opportunity to produce the evidence or that the property was not acquired as alleged by the respondents is misconceived. Hence, the impugned judgments and decrees passed by the learned Tribunal are based on correct appreciation of facts/record, whereas learned counsel for the petitioners has not been able to point out any illegality, irregularity, misreading or non-reading of record or jurisdictional defect. Reliance may be placed on the cases of "Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore Versus Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs Government Of Pakistan, Islamabad and 3 others" (PLD 2009 SC 210).
8. Thus, for the reasons discussed above, this and connected petitions, being meritless, are dismissed. Requisitioned record be returned forthwith to the quarters concerned.