1. ' SAEEDUZZAMAN SIDDIQUI, J.---We propose to dispose of the abovementioned three appeals by a consolidated judgment, as the points of law and facts involved in these appeals are common. The leave granting order in the case is as follows:- "The three petitions kir leave to appeal bearing No, 124-P, 125-P and 126-P of 1987 filed by Mian Hakimullah, Haji Din Muhammad and Abdul Qudoos against Additional District Judge/Tribunal, Nowshera, arise from the judgment of the learned Division Bench of the Peshawar High Court, Peshawar passed on 10-2-1987 and 20-2-1987. As a common question of law is involved in these petitions, they are tieing disposed of through this single order.
(2) The Sub-Divisional Officer High Way, Nowshera as per Notice No,665-72/I-L dated 30-10-1984, issued notices to the petitioners under section 3 (1) of the N.-W.F.P. Removal of Encroachments Act of 1977 to remove encroachment from certain portions of Pabbi Bazar. On receipt of the notices the petitioners approached the authority to withdraw these notices but to no effect. They were therefore compelled to file declaratory suits in the Court of the Additional District Judge/Tribunat Nowshera under Act V of 1977. The allegations made in the plaints were that the petitioners were owners of the suit properties; that they had made no encroachment and that the notice dated 30- 10-1984 for demolishing the encroachment is against law and without lawful authority. A prayer for mandatory injunction was also made. The suits were resisted by the Authority and beside raising other pleas, the objection of incompetency of the suits was also taken up on the grounds that the petitioners had failed to avail the remedy of review provided for under the Act. This objection prevailed with the learned Tribunal and thus the suits were dismissed as not maintainable as per judgment dated 20-1-1985, 6-4-1985 and 16-7-1986. The writ petitions filed by the petitioners also met the same fate.
(3) We have heard the learned counsel for the petitioners. Earlier there were conflicting judgments of the Peshawar High Court on the question whether before approaching the Tribunal through a suit under section 13 of Act V of 1977, the aggrieved party must avail the opportunity of review as provided for under section 4 ibid, but this question now stands finally resolved by Full Bench of the said Court in the case of Noor Muhammad v. Additional District Judge, Nowshera and 4 others (PLD 1988 Pcsh. 88) wherein it has been held:- "Although the Division Bench consisting of our learned brothers Fazal Elahi Khan, J and Allah Bakhsh, J did not directly consider the effect of the provisions of sub-rule (2) of rule 4 of the aforesaid rules about reference of the matter to the Tribunal in the case pending with them and referred to in earlier part of this judgment yet they were of the opinion that the provisions of section 3 were independent of the provisions of section 13 of the said Act and it was held by them that they were unable to import the provisions of section 3 in section 13 of the said Act for exercise of the jurisdiction by the Tribunal. They were of the opinion that the Tribunal could exercise jurisdiction in the matter independent of the provisions of section 3 of the said Act. Since we have also arrived at the same conclusion in the present judgment we would, therefore, not only agree with the aforesaid finding of the said learned Division Bench but we would also support it. On the contrary, the learned Division Bench consisting of our learned brothers Abdul Karim Kundi, J and S. Usman Ali Shah, C.J. Came to the conclusion in the matter pending decision with them that the Tribunal could not exercise jurisdiction unless a reference had been made to it by the authority before whom review petition had been made. However, for the aforesaid reasons we will with respect, disagree with this view taken by our learned brothers."
(4) Leave to appeal is therefore granted to examine this question further. Security Rs,2,500 in each case. The appeals may be made ready for hearing on the present record with permission to the parties to file additional documents, if any."
2. ' The relevant facts in these cases are that the Sub-Divisional Officer (S.D.O.) Highway, Nowshera, issued notices to the appellants under section 3(1) of the N.-W.F.P. Removal of Encroachments Act of 1977 (hereinafter to be referred to as 'the Act') for removal of encroachments from certain portions of Pabbi Bazar. On receipt of these notices the appellants approached the authorised officer under section 3 of the Act with the request that the notices issued to them may be withdrawn as the properties in their respective occupation did not fall within the definition of "public property". The requests of the appellants were not acceded to; with the result the appellants filed suits before the Tribunal constituted under section 12 of the Act seeking declaration that the properties in respect whereof notices were issued to them under section 3 of the Act were not 'Public properties'. The suits were contested by the Authority designated under section 3 of the Act and besides other objections it was contended before the Tribunal that the appellants were bound to follow, in the first instance, the remedy by way of review provided under section 4 of the Act, before approaching the Tribunal constituted under section 12 of the Act. The objection regarding maintainability of suits was upheld by the Tribunal and consequently the suits instituted by the appellants before the Tribunal seeking declaration were dismissed, as not maintainable as per judgments of the Tribunal dated 20-1-1985, 6-4-1985 and 16-7-1986. The Constitutional petitions filed by the appellants before the Peshawar High Court to challenge the order of the Tribunal also met the same fate. The learned Judges of Peshawar High Court, after considering the rules framed under section 17 of the Act, held as follows:- "4. It thus comes to 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 and who on receipt of reference has to fix a date for hearing with notice to the parties. The tribunal cannot directly receive and take cognizance of suits filed in his Court by persons aggrieved from the orders/notices of the authority under section 3 of the Act. We would, therefore, agree with the learned tribunal in holding 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 and we cannot take any exception in our writ jurisdiction to the non-suiting of the writ petitioners by the tribunal on this score."
3. ' The learned counsel for the appellants contended before us that the view taken by the learned Judges of Peshawar High Court is in conflict with the view taken by the Full Bench of the same Court in the case of Noor Muhammad v. Additional District Judge, Nowshera and 4 others (PLD 1988 Peshawar 88).
4. ' In the above-cited case the learned Judges of the "Full Bench of Peshawar High Court, while considering the scope of sections 3, 4 and 12 of the Act and Rule 4(2) of the N.-W.F.P. (Removal of Encroachments) Rules, 1981 (hereinafter to be referred as 'the Rules' only) observed as follows:- "A minute perusal of the provisions of section 4 of the said Act would clearly show that any person aggrieved by an order to remove encroachment made upon public property, can within seven days of the service of the said order prefer a review petition to Government or any authority or officer who has made such order and the Government or authority after hearing the petitioner may confirm, modify or vacate the order. The points worth keeping in mind of the provisions of section 4 are that firstly, the filing of a review application is not mandatory, the wording is that the person aggrieved by the order may prefer a review petition; secondly the review petition is to be made to the same authority which has made the order; and thirdly, the authority before whom the review petition has been preferred may, after hearing the petitioner, confirm, modify or vacate the order.
(9) It shall thus, be seen that the making of a review petition is neither mandatory nor a prerequisite before filing a suit or application before the Tribunal, that the review petition is to be made to the same authority which has passed the order and that when the review petition has been made three courses are open to the authority either to confirm the order or to modify it or to vacate the same. It shall further be seen that since the review petition is to be made to the same authority which had made the order for removing the encroachment, the possibility is there that it may be rejected since it has been preferred before the same authority and that is why the legislature in its supreme wisdom did not make the filing of a review petition mandatory. Moreover, when a review petition is preferred, the authority has to confirm, modify or vacate the order wherefrom it can also be gathered without any fear of contradiction that the matter of review petition will finally be disposed of before the authority to which the review petition has been preferred and the authority has not been given any power to make a reference thereon to the tribunal. The authority adjudicating upon a review petition would only be competent either to confirm the order which is the subject-matter of the review petition or to modify it or to vacate it.
5. Besides adopting one of the aforesaid three courses of action the authority has no other alternative or any other power to deal with a review petition. Since the review petition is to be made to the same authority which has passed the order of removing encroachment, the review petition is also not mandatory. After analysing the provisions of section 4 of the said Act we are clear in our minds that the remedy of a review petition is an additional remedy provided to an aggrieved person besides filing a suit before the Tribunal. Moreover, the filing of a review petition is also not a mandatory prerequisite before filing a suit before the Tribunal.
(10) In pursuance of the provisions of section 17 of the said Act, rules known as North-West Frontier Province (Removal of Encroachment) Rules, 1981 were published on 20th May, 1982. Rule 4 of the said Rules pertaining to review petition specifies that when a review petition has been presented and where the petitioner claims that the property with respect to which an order under section 3 of the said Act has been made is not a public property or that the lease or licence has not been determined it shall be referred to the Tribunal having jurisdiction. The provisions contained in sub- rule (2) of rule 4 will clearly indicate that where the claim of the petitioner is 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 the lease or licence has not been determined the case shall be referred to the Tribunal having jurisdiction. We have anxiously considered the provisions of sub-rule (2) of rule 4 of the rules and we find ourselves at a loss to follow as under which provision of the said Act the provisions of sub- rule (2) have been framed. Section 4 of the said Act V of 1977 provides that when the review petition has been preferred, the authority, after hearing the petitioner, is required either to confirm, or to modify or to vacate the order. In turn it would mean that the function of the authority would come to an end when after hearing the petitioner it has either confirmed the order or modified it or vacated it. There is no provision in the said Act to the effect that the authority has also the power to refer the matter to the Tribunal when it finds that the property about which the order has been made is not a public property or that the lease or licence has not been determined. This function of referring the matter to the tribunal having jurisdiction is neither supported by any provision of the said Act nor it is expedient to confer this power on the authority deciding the review petition. The reason underlying this conclusion is that the Act or the rules nowhere provide that if the authority refuses to or neglects to or does not refer the matter to the Tribunal then what is to follow next.
6. There is no compulsive provision in the said Act or the rules that the authority has as per force to refer the matter to the Tribunal. From the wording of the provisions of sub-rule (2) of rule 4 it can be easily gathered that the matter of reference to the Tribunal has been left to the sweet-will of the authority seized with the review petition. It may or may not make a reference to the Tribunal and the matter would end there and then as the provisions of sub-rule (2) of rule 4 indicate."
7. We are in agreement with the views taken by the learned Judges of the Full Bench in the case of Noor Muhammad v. Additional District Judge, Nowshera (mentioned above), to the extent that it is not necessary for a person, to whom a notice under section 3 of the Act has been issued, to exhaust the remedy of review provided under section 4 of the Act before approaching the Tribunal constituted under section 12 of the Act, to seek a declaration that the property in respect whereof the notice under section 3 of the Act had been issued is not a 'Public Property'. A plain reading of sections 12 and 13 of the Act will show that the Tribunal constituted under the Act is vested with the exclusive jurisdiction to decide the dispute under the Act, whether a property in respect whereof a notice under section 3 of the Act has been issued is not a 'public property' or that the lease or licence in respect of such property has not been determined for the purposes of the Act. It is conceded before us that a dispute whether the property is not a 'public property' or a lease or licence in respect of such 'public property' has not been determined for the purposes of the Act is outside the pale of jurisdiction of the review proceedings under section 4 of the Act. It is, therefore, quite obvious that the proceeding by way of review under section 4 of the Act could not be treated as a condition precedent for moving the Tribunal constituted under section 12 of the Act as the relief which the Tribunal has the exclusive jurisdiction to grant could not be granted by the Authority exercising jurisdiction under section 4 of the Act.
8. ' Mr. Sardar Khan, the learned Advocate-General, N.-W.F.P., however, contended before us that the Tribunal can decide a suit or an application presented before it in such manner and in accordance with such procedure as may be prescribed under the Rules. The learned Advocate-General, accordingly, contended that as the Rules framed under the Act only provide for a feference to the Tribunal and no procedure has been prescribed for filing of suit or an application before the Tribunal, the same could not be filed before the Tribunal directly. We are unable to accept the contention of learned Advocate-General. The fact that no rules have been framed by the Government for regulating the procedure before the Tribunal which has already been established, cannot make the operation of Act and functioning of Tribunal negatory, specially when the Tribunal eatablished under the Act has been conferred exclusive jurisdiction to try a particular class of disputes under the Act. The Tribunal established under the Act has been vested, under section 14(3) of the Act, with the power of a Civil Court in matter of summoning and enforcing the attendance of any person and examining him on oath, receiving evidence on affidavit, compelling production of documents and issuing commission for examination of witnesses or documents. The proceedings before the Tribunal, therefore, have all the necessary attributes of the proceedings of the Civil Court. It is, therefore quite clear to us that in so far as the existing rules do not provide for a particular procedural matter relating to the proceedings before the Tribunal, it is free to follow the principles contained in the Code of Civil Procedure in that behalf to the extent it is felt necessary by the Tribunal. It may be mentioned here that under section 11 of the Act the jurisdiction of the Civil Court to decide a dispute whether any property is not 'public property' or that the lease or licence in respect of such public property has not been determined for the purposes of the Act has been taken away and all suits, appeals and applications relating to such disputes pending on the date of enforcement of the Act have been declared to have abated. However, under the proviso to section 11(2) a party to such a suit, appeal or application has been given the right to file a suit before the Tribunal constituted under section 12 of the Act within 30 days of the coming into force of the Act, relating to such dispute. This right conferred on the party can neither be suspended nor negated on the plea that the Government has not framed the relevant rules. We, accordingly, hold that the right available to a party under the Act to file a suit or application before the Tribunal in respect of dispute mentioned in section 13 of the Act is not circumscribed by availing of the remedy of review provided under section 4 of the Act. We are also of the view that absence of specific rules prescribing the procedure for filing of suits before the Tribunal can neither affect the operation of the Act nor the exercise of the jurisdiction by the Tribunal under the Act. The Tribunal in the absence of the rules regulating the procedure relating to filing of the suits before it, is free to follow the principles of Civil Procedure Code in that behalf. We now turn to the question of validity of rule 4(2) of 'the Rules'. The learned Judges constituting the Full Bench in Moor Muhammad's case, while striking down sub-rule (2) of Rules 4 ibid observed as follows:-- "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 violative 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 a 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."
9. It is true that in case of inconsistency between the parent Act and the rules framed thereunder, the latter must give way to the former, but it is also an accepted rule of interpretation that Courts should first make every effort to reconcile the inconsistency between the two and only when the conflict between the Act and the rule appears to be irreconcilable that the rule will be declared ultra vires. In the present case, with respect to learned Judges of the Full Bench in Noor Muhammad's case, we are unable to find any irreconcilable conflict between section 4 of the Act and rule 4(2) of the Rules. No doubt, section 4 of the Act does not contain any specific provision for making reference by the Authority to the Tribunal, but, such reference by the Reviewing Authority is neither outside the scope nor contrary to the objects of the Act. The Authority under section 4, while sitting in review of an order passed under section 3 of the Act, has been vested with the power of confirming, modifying or vacating that order. The Authority acting under section 4 of the Act, however, while reviewing its order under section 3 ibid, has no jurisdiction to decide whether the property is not a public property or that the lease or licence in respect of such property has not been determined for the purpose of the Act. These disputes are triable exclusively by the Tribunal constituted under section 12 of the Act. It is, therefore, quite obvious that if in a review application filed under section 4 of the Act against an order passed under section 3, ibid, the party takes the ground that the property in respect whereof the order has been passed by the Authority, under section 3, ibid, is either not a public property or its lease or licence has not been determined for the purposes of the Act, the Authority will not be able to decide the Review Application for want of jurisdiction to adjudicate upon such disputes. Sub-rule (2) of rule 4 is squarely designed to take care of such a situation, and in such a case, the Authority hearing a review application under section 4 of the Act instead of dismissing the review application for want of jurisdiction can refer the dispute, under rule 4 (2) of the Rules, to the Tribunal for adjudication. Rule 4(2) of the Rules, therefore, does not come in conflict with section 4, or contravenes any other provision of the Act.
10. On the contrary, it supplements and promotes the objectives and working of the Act. We, therefore, do not find any inconsistency between sub-rule (2) of rule 4 of the Rules and the provisions of the Act. We, accordingly, overrule the decision in the case of Noor Muhammad v. Additional District Judge, Nowshera and 4 others (supra) in so far it relates to the declaration of sub-rule (2) of rule as being inconsistent with the provisions of the Act and ukra vires.
11. ' As a result of the above discussion, all the three above-mentioned appeals succeed and orders of Peshawar High Court, passed in the three writ petitions, are set aside. The suits filed by the appellants in the above cases are remanded to the Tribunal, with the direction that the same may be disposed of in accordance with the law. There will be no order as to costs.