' NASIR ASLAM ZAHID, J.---An order dated 17-9-1988 passed under section 3 of the Sindh Public Property (Removal of Encroachment) Act V of 1975 by Mukhtiarkar and authorised officer Nausharo Feroz addressed to the petitioner, was served upon the petitioner on 20-9-1988. The said order is reproduced here:- "From the perusal of letter No, 2705 dated 27-8-1988 of the Assistant Commissioner Nausharo Feroz, it appears that you have encroached upon common street 8 village Shafi Mohammad Wagon and raised katcha wall unauthorisedly.
' You are therefore directed to remove the encroachment alongwith construction made by you on the above public street within 3 days from the time of service of this notice.
' In case you fail to remove the encroachment within specified period, you shall be evicted by force and unauthorized construction would be removed and costs of removal shall be received from you as arrears of land revenue and further action under section 7 of the said Act shall be taken against you."
2. As can be seen from the said order, the allegation against the petitioner was that he had encroached upon a common street in the village and had raised a ketch wall unauthorizedly.
3. The petitioner, being aggrieved, prepared a review petition under section 4 of the Act in which, after making certain averments, he prayed that it be declared that the petitioner was not in possession of any public property and the notice issued under section 3 of the Act be reviewed or vacated. This review petition is dated 24-9-1988 and it was presented before the Mukhtiarkar and Authorized Officer, Nausharo Feroz. On the memo of the review petition, which was returned to the petitioner, the following endorsement was made by Mukhtiarkar Naushero Feroz on the same day i,e.24-9-1988: "As the Asstt. Commissioner has directed the undersigned to implement his orders, this review petition may also be produced before him."
4. The petitioner alleges that on 24-9-1988 the building on the encroached area was demolished and on 2-10-1988 the petitioner filed this constitutional petition challenging the order passed by the official respondents which resulted in the demolition of what the petitioner claims to be part of his house. Comments have been filed by the respondent No,1. Counter-affidavit has also been filed by respondent No,3. We have heard Mr. Yousuf Rafi, learned counsel for the petitioner, Mr. Syed Serfaraz Ahmad, learned AA.G. Sindh for official respondents and Mr. Naraindas G. Motiani, learned counsel for private respondent No,3.
5. Learned counsel for the petitioner has referred to sections 3 and 4 of the Sindh Public Property (Removal of Encroachments) Act 1975 which are reproduced:- "3. Removal of structures.--(1) Government or any authority or officer authorised by Government in this behalf may require the person directly or indirectly responsible for encroachment to remove such encroachment together with the structure, if any, raised by him on the public property, within the period not less than three days as may be specified in the order. Explanation.--Lessee or licensee who after the expiry of the period of lease or licence or on determination of such lease or licence, continues to retain possession of any public property shall, for the purpose of this subsection, be deemed to be responsible for encroachment.
(2) The order under subsection (1) may be served by
(a) giving or tendering it to the person responsible for the encroachment 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.
4., Review.---(1) Any person dissatisfied by the order passed under section 3 may, within seven days from the service thereof, prefer a review petition to Government or any authority or officer who has passed such order.
(2) Government or, as case may be, the authority or officer as aforesaid may, after perusing the review petition filed under subsection (1) and giving an opportunity to the petitioner or his duly authorized agent of being heard, confirm, modify or vacate the order."
6. According to the learned counsel for the petitioner, Mukhtiarkars have been notified as authorized officers and, at page 81 of the Court file of this case, a copy of the Notification dated 1- 12-1975 of the Government of Sindh, Land Utilization Department, appears, according to which, all the Assistant Commissioners and the Taluka Mukhtiarkars in the province of Sindh have been authorised under section 5 (1) of the Act. According to the learned counsel, the order under section 3 of the Act had been passed by the Mukhtiarkar Nausharo Feroz as the authorized officer as is apparent from the order itself, and, therefore, the review petition under section 4 of the Act was competently filed within time by the petitioner before Mukhtiarkar and the Mukhtiarkar should not have returned the review petition for being presented before the Assistant Commissioner.
7. Learned counsel for the petitioner then referred to rule 4 of the Sindh Public Property (Removal of Encroachments) Rules, 1976 which rule is as follows:- "4. Review petition.--(1) The petition shall be presented by the petitioner in person or through his duly authorised agent to the authority concerned.
(2) The order made on the petition shall contain the summary of evidence produced by the petitioner and the findings of the authority making the order.
(3) Where the petitioner claims that the property in respect of which an order under section 3 has been passed is not a public property or that the lease for licence has not been determined, the case shall be referred to the Tribunal having jurisdiction."
8. Learned counsel for the petitioner submitted that as in the review petition filed by the petitioner it was also claimed that the property in question was not public property, the Mukhtiarkar should have referred the review petition, filed by the petitioner, to the concerned Tribunal under sub-rule 3 of rule 4 of the Sindh Public Property (Removal of Encroachment) Rules, 1976. It was submitted that, instead of following the procedure required under the law and rules, the Mukhtiarkar passed an illegal order returning the review petition to the petitioner requiring him to take the review petition before the Assistant Commissioner instead of referring the review petition to the concerned Tribunal. Mr. Syed Sarfaraz Ahmed, learned A.A.G. Sindh appearing for the official respondents concedes to the aforesaid contention of the learned counsel for the petitioner.
9. " Mr. Naraindas G. Motiani, learned counsel for private respondent No,3, however, states that prior to the issuance of notice by the Mukhtiarkar, the Assistant Commissioner Nausharo Feroz, on the complaint of the respondent No,3, had held a full-fledged enquiry as to whether the petitioner had encroached upon the public street, in which enquiry the petitioner had also been associated and, after hearing the parties and several witnesses, the Assistant Commissioner had come to the conclusion that the petitioner had encroached upon the public property and he had, by his letter dated 27-8-1988 addressed to the Mukhtiarkar Nausharo Feroz, required him to get the unauthorized construction removed with the aid of the concerned police. According to the learned counsel for respondent No,3, this letter dated 27-8-1988 is in fact an order under section 3 of the Act and the order dated 17-94988 of the Mukhtiarkar was communication of the order passed by the Assistant Commissioner and, in the circumstances, the direction by Mukhtiarkar to the petitioner to present the review petition before the Assistant Commissioner was proper and legal.
10. We are unable to agree with the contention raised by the learned counsel for respondent No,3.
An enquiry may have been held by the Assistant Commissioner and in such enquiry the petitioner may have been associated but the law requires that an order has to be passed under section 3 of the Act and such order has to be communicated to the concerned party who then has 7 days' time to file a review petition. In this case, order under section 3 was passed by the Mukhtiarkar, who is also an authorized officer. Order dated 17-9-1988 shows that it was an order under section 3 of the Act. The contents of the order are also clear and they indicate without any ambiguity, that it was an order under section 3. In the circumstances, the petitioner had rightly presented the review petition before the Mukhtiarkar, who had passed the order under section 3. Under rule 4 (3) of the Sindh Public Property (Removal of Encroachment) Rules 1976, the Mukhtiarkar should have referred the review petition to the concerned Tribunal for disposal in accordance with the law as the petitioner in his review petition has taken up the plea that the property in question was not a public property but the personal property of the petitioner.
11. In the circumstances we declare that the review petition, filed by the petitioner on 24-9-1988 before the Mukhtiarkar and authorized officer Nausharo Feroz, will be deemed to be pending before the Mukhtiarkar. The review petition which had been returned to the petitioner has been filed alongwith the memo of this petition. On filing true copy of the said revision petition, the original review petition will be returned to the petitioner within 15 days from today and, by 31-12-1990, the said review petition will be presented again before Mukhtiarkar and authorized officer Nausharo Feroz, who will then take further action on such review petition, after notice to the petitioner and to respondent No,3, in accordance with the procedure prescribed in sections 3 and 4 of the Sindh Public Property (Removal of Encroachment) Act 1975 and rule 4 of the Sindh Public Property (Removal of Encroachments) Rules, 1976. It may be observed here that certain construction had been demolished and according to the learned counsel for respondent No,3 the area which had been demolished is being used as a street, although it is claimed by Mr. Yousuf Rafi, learned counsel for the petitioner, that the area is being used as a passage and not a public street. Till the matter goes before the Tribunal and it passes any interim order, the status quo in respect of the street/passage will be maintained. There will be no order as to costs.