MUHAMMAD BASHIR KHAN JEHANGIRI, J.--On 26-3-1986, Municipal Committee, Bannu respondent No.5 served on Races Khan petitioner No.3 a notice under section 3 of the N.-W.F.P. Public Property (Removal of Encroachment) Act, 1977 (V of 1977) (hereinafter called the Act), to vacate the property in dispute, situate, within the municipal limits of Bannu by removing the superstructures and hand over the vacant possession thereof to it.
2. Feeling aggrieved of the notice, the petitioners filed a suit in the Court of District Judge, Bannu who was exercising the powers of a Tribunal under the Act, for declaration that the order dated 26- 4-1986, issued by respondent No.5 being illegal, without lawful authority, mala fide and collusive was void and ineffective against their rights. By way of consequential relief, a decree for perpetual injunction so as to restrain respondent No. 5 from interfering with the petitioner's possession in pursuance of the impugned notice was also claimed therein. In defence, respondent No.5 inter alia pleaded that the suit was incompetent on the ground that the petitioners had ignored to invoke the remedy of review provided for under section 4 of the Act which was mandatory.
3. The Tribunal seized of the suit by order dated 2-11-1987, while sustaining the objection raised on behalf of respondent No.5 held that the petitioners having failed to avail of the relief provided for under section 4 of Act, their suit was not competent and dismissed it.
4. The petitioners have, through this Constitutional Petition, challenged the vires and propriety of the, order dated 2-11-1987, passed by the Tribunal.
5. The learned counsel for the petitioners contended that the provincial Government under section 17 of the Act had framed the N.W.F.P. Public Property (Removal of the Encroachments) Rules, 1981 (hereinafter called as the Rules) which provide for the procedure for presentation of Review Petition to the authority issuing notice under the Act, for removal of encroachment and does not create bar to the maintainability of the suit under the Act. The learned counsel submitted that impugned order of the Tribunal being without lawful authority be annulled under Article 199 of the Constitution.
6. Mr. Khawaja Nawaz Khan the learned counsel for the answering respondent (No.5), on the other hand, contended that the provisions of the Act and the Rules taken together would show that it was incumbent for petitioners to have first filed a review petition before the authority and in case the controversy was on the point as to whether it was, or was not public property, then the authority would have referred the dispute to the Tribunal. According to the learned counsel for the respondent the Tribunal had, therefore, rightly held that the suit was not competent.
7. Both the learned counsel were not aware of the case-law which has developed on the proposition raised before us. We have been able to lay hands on three Division Bench cases and one Full Bench authority of this Court.
8. Since the framing of the Rules a lot of confusion has emerged over the interpretation of section 3 of the Act and rule 4 of the Rules. A Division Bench of this Court comprising Fazal-e-Elahi Khan and Allah Bakhsh Khan, JJ. In Writ Petition No.148 of 1983 vide their judgment dated 13-2-1985 held that the learned Tribunal was not correct in holding that in the absence of notice under section 3 of the Act, he lacked the jurisdiction to adjudicate in the matter. In Writ Petition No.297 of 1985 another Division Bench Usman Ali Shah, CJ. (as his Lordship then was) and Abdul Karim Khan Kundi, J in their judgment dated 10-2-1987 held the view that "under the Act and the Rules framed thereunder the writ petitioners were first to file review petitions before the authority and in case they were to raise a dispute that the property was not a public property, the authority was to refer their cases for onward adjudication to the Tribunal. The Tribunal cannot directly receive and take cognizance of suits filed in his Court by persons aggrieved from the orders/notices of authority under section 3 of the Act." The view of the Tribunal therein that the suits directly filed in his Court were not competent and those were to be routed through the authority in the, form and shape of review petitions was affirmed. In another writ petition (No.15-A of 1986) decided on 22-9-1987, the following proposition fell for determination before another learned Division Bench of this Court:- "Whether in accordance with sub-rule (2) of rule 4 of the Rules reference has to be made to the Tribunal by Government or authority alone and that the Tribunal cannot take cognizance of the matter upon suit/petition made to it directly by the person aggrieved."
9. After carefully going through the language employed in the Act and the Rules, the learned Division Bench expressed the view that there was no bar either in the Act itself or the Rules framed thereunder for the affected person to directly approach the Tribunal by way of filing a suit/petition for seeking declaration that the property from which he is sought to be ejected is not a public property within the contemplation of the Act.
10. In order to resolve the conflict of opinion held by the various Division Benches of this Court over the proposition reproduced in para-8 ante, a Full Bench comprising, Fiaz Muhammad Khan- (as his Lordship then was), Inayat Elahi Khan and Nazir Ahmad Bhatti, JJ. In Noor Muhammad v. Additional District Judge (PLD 1988 Peshawar 88) was constituted. The learned Full Bench, after review of the case-law on the point and considering at length the whole scheme of the Act and the Rules arrived at the following conclusion in paragraph 14 of the report:- "When a review petition under the provisions of section 4 of the said Act is preferred by any person aggrieved by an order made under section 3 thereof, the authority, to whom it is preferred, has only to adopt one out of the three courses of action provided in subsection (2) of section 4 and that is that either the authority may confirm the order or it may modify it or it may vacate it and the matter would end there and then. It shall thus, be seen that when the authority before whom the review petition has been preferred has adopted one of the aforesaid three courses of action the matter of the review petition is finally disposed of and comes to an end. Viewing in this context the provisions of sub-rule (2) of rule 4 of the aforesaid rules, wherein it is provided that when it is found that the property in respect of which an order under section 3 of the said Act has been passed is not a public property or that the lease or licence has not been determined the case is to be referred to the Tribunal, having jurisdiction are not only violation of and made without any sanction of the law behind them but are also inconsistent with the provisions of the said Act. In view of the provisions contained in section 4 of the said Act the matter of the review petition comes to' final end, the provisions contained in rule 4 of the aforesaid rules for reference of the review petition by the Government or authority to the Tribunal, having jurisdiction are without any legal effect. We have given our anxious consideration to this aspect of rule 4 of the aforesaid rules and we have come to the irresistible conclusion that the provisions contained in sub---rule (2) of rule 4 in so far as they provide for reference of the matter to the Tribunal by Government or other authority have been framed without any legal sanction and to that extent are inconsistent with the provisions of the law and cannot be given any legal effect."
11. In view of the above conclusion, the findings of the Tribunal therein that before knocking at its doors a review petition to the authority within the contemplation of section 4 of the Act was mandatory were held- to be without lawful authority.
12. It would thus be seen that the controversy raised before and decided by the Tribunal in the case in hand over the competency or otherwise of the suit without recourse to the provisions of review before the authority has been settled A by an authoritative pronouncement of as high a forum as the Full Bench of this Court. Respectfully following the dictum of the Full Bench in Noor Muhammad v. Additional District Judge referred to above, we also hold that the Tribunal should have proceeded with the suit uninfluenced by the fact whether or not a review petition had been filed and should have decided the suit on merits according to law. The Tribunal has thus failed to exercise jurisdiction which vested in it under the law. We would, therefore, accept this petition, set aside the impugned order of the learned Tribunal. The suit of the petitioners is treated to be pending with the Tribunal (respondent No.1). There will, however, be no order as to costs.