TARIQ PARVEZ, J.- --Brief facts of this case are that Mian Yamin ul Hague petitioner herein, having learnt through advertisement which appeared in Newspaper on 14-2-1979 that respondent Municipal Committee Abbottabad has fixed date and time for the auction of Empire Cinema Abbottabad on 17-2-1979 at 10 a.m., filed a suit in the Court of District Judge, Abbottabad constituted under section 12 of N.-W.F.P. Public Property (Removal of Encroachement) Act V of 1977 (hereinafter called the Act).
2. The Suit so filed, was given No,17/1 of 1979. The plaintiff in the said suit sought two reliefs one for a declaration to the effect that the plaintiff is owner in possession of the whole building of Empire Cinema including the land underneath and that defendant Municipal Committee has got no legal right to auction the aforesaid property as the defendant had no title in it. It was further prayed that the notice (advertisement) dated 14-2-1979 whereby the building in question was shown to be the ownership of defendant Municipality and 17-2-1979 the date fixed for its auction is ab initio ineffective illegal and of no legal consequences. The second relief was for obtaining permanent injunction against the defendant committee restraining it from transferring the building and the land through aforesaid auction.
3. The respondent-defendant i,e, Municipal Committee Abbottabad was issued notice and they have filed their written statement contesting the stand taken by the petitioner.
4. When the suit of the petitioner was at the initial stages one Malik Jehandad also filed a Civil Suit bearing No,16/1 claiming therein that he being a tenant of Yamin ul Haq plaintiff of Suit No,17/1 the respondent Municipality shall be restrained from auctioning the suit property. As the subject- matter of the two suits was the same the learned Tribunal constituted under the Act did framed consolidated issues of which Issue No,2 was to the effect:-- "Is the disputed property 'Public Property' within the meaning of Clause (b) of subsection (2) of the N.-W.F.P. Act-V of 1977?"
It appears that an application was filed by one Safdar Jang and three others on 29-4-1982 requesting for their impleadment as party to the suit which was granted on 13-4-1993. Because of the newly added respondents the Tribunal framed 7 additional issues of which Issue No,5 was to, the effect: "Whether plaintiff has lease rights in the property?"
5. The evidence of the parties was recorded and the learned trial Court while deciding the suit came to the conclusion that the plaintiff has acquired the property from the Settlement Department in the year 1960. It was held that the revenue papers have nowhere mentioned the ownership and possession of the defendant committee. Consequently the suit was decreed in favour of the plaintiff vide judgment and decree dated 23-5-1985.
6. Feeling aggrieved of the judgment by the Tribunal, Municipal Committee Abbottabad filed a writ petition in this Court AWP No,2 of 1986 which was heard by a Division Bench of this Court the judgment wherein was announced on 12-2-1989. The writ petition was accepted and the case was remanded back to the trial Court (Tribunal) with the direction to give its findings on issues framed on 21-3-1979.
7. On remand the case went back to the District Judge Abbottabad where the trial Court after considering all the issues framed on 21-3-1979 came to the conclusion that the plaintiff-petitioners are not the owners of the suit property and that they were possessing the same as lessee under Municipal Committee Abbottabad which lease was terminated and the Municipality being the sole owner of the property was well within its right to dispose of the same the manner they like and the suit was dismissed on 7-4-1990.
8. The order of the Tribunal whereby suit of the petitioner-plaintiff was dismissed has been challenged in this writ petition.
9. It appears from the record that the petition was admitted to full hearing on 13-5-1990 whereafter the case was adjourned on one ground or other. On 27-6-1994 a Division Bench consisting of His Lordship the Chief Justice (as he then was) Mr. Justice Abdul Karim Khan Kundi and Mr. Justice Saleem Dil Khan, passed the following order:-- "The learned counsel for the petitioner states that after a detailed study he has arrived at a conclusion that since the Municipal Committee has not served a requisite notice on him under the N.-W.F.P. Public Property (Removal of Encroachment) Act, 1977 that he was the unauthorised occupant and that the suit property was a public property and that he was required to remove the encroachment and deliver the possession, as such he was not supposed to bring a suit in the Court of District Judge constituted as Tribunal under the said Act. Accordingly, he requests to withdraw from his writ petition and seeks permission of the Court to seek redress about the subject-matter from an authroised forum under the law. In fact he is at liberty to do anything but as far the present writ petition is concerned it is hereby dismissed as withdrawn with costs."
The aforesaid order remained in field when the petitioner filed a Review Petition bearing No,7 of 1994. The review application to limited extent was allowed by this Court vide order dated 6-5-1997 with the direction that the main Writ Petition No,30 of 1990 be decided on merits.
10.We heard the learned counsel for the parties at sufficient length. Learned counsel for the petitioner argued that by virtue of different documents issued by the Settlement Department he is transferee of the suit property and as such full owner with possession. He further submitted that having attained the ownership and possession of the Cinema, the land underneath the Cinema automatically becomes the property of the petitioner. He has assailed the judgment of the learned Tribunal on the ground that the tribunal under the Act (ibid) is vested with limited jurisdiction within the framed work of Act (ibid) and cannot exercise jurisdiction beyond the framework as provided in Statute itself. He was of the view that the Tribunal could not decide the title of the parties and was concerned with the encroachment if any and not beyond this. He also contended that by virtue of section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act No,XXVII of 1958) all orders made by any official/officer appointed under the said Act are final and cannot be called in question in any Court. He further contended that under section 3 of the Act (ibid) the Tribunal could pass an order in respect of vacation of Public Property or removal of any structure thereon and could not decide the inter se propriety rights of the parties. The learned counsel also questioned the order of the Tribunal wherein a statement given by one Sardar Balbir Singh in respect of the property in some other proceedings was taken note of. He also submitted that neither the Provincial nor the Central Government (Federal Government) have ever challenged the allotment order made by the Settlement Authorities in favour of the petitioner. The learned counsel argued that entries in record of right or any other revenue paper are not final and though presumption of correctness are attached to such entries but the same are rebuttable presumptions. The learned counsel in support of his submissions submitted that after 23-9-1958 by virtue of Act of 1957 (Administration of Evacuee Property Act) sections 3-A, 4, 7, 22 and 41 no property shall be declared by any forum as evacuee property hence the Tribunal was wrong in holding the suit property to be as such. In support of his arguments the learned counsel relied on the following judgments:--
(i) PLD 1983 SC page 243 on the point that a Court or tribunal cannot be vested with the jurisdiction by consent of the parties which jurisdiction is not available under the Statute. PLD 1976 Karachi page 995 and PLD 1975 Lahore page 1349 were referred to in support of the proposition that the Tribunal of Special jurisdiction cannot go beyond the provisions of Statute creating them and also that the entries in record of right are not proof of ownership. The learned counsel also relied on PLD 1986 SC page 447 wherein the august Supreme Court of Pakistan has held that a Tribunal which is empowered under the law to adjudicate upon the matter is bound to decide it rightly and not wrongly. 1987 CLC page 1193, 1988 CLC 123 and 1990 CLC 1513 were also referred to.
11. The learned counsel for the respondents while arguing his case submitted that the petition is misconceived as the petitioner wants adjudication about the title through this Court. He also submitted that the order of this Court dated 27-6-1997 is hurdle in the way of the petitioner. The case was fully argued on that date and it was learned counsel for the petitioner who withdrew the petition admitting that the Tribunal had no jurisdiction in the light of a Full Bench decision of this Court reported in PLD 1988 Peshawar page 88. As such he cannot blow hot and cold in the same breath. He also submitted that the stand of the petitioner is based on two documents which are annexed with the petition as Annexures-'A'and 'C' which are self-contradictory and hence cannot create any valid title about the ownership. It was also argued that the Tribunal Constituted under the Act (ibid) was fully empowered to go into all questions relating to the suit property by virtue of section 13 of the Act (ibid) which reads as under:-- "13. Exclusive jurisdiction.--A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purpose of this Act."
12.After hearing the learned counsel for the parties we need not reproduce the facts as these are given in detail in the judgment of the Tribunal firstly when the suit was decreed in favour of the petitioner on 23-5-1985 and secondly in the impugned judgment. The consolidated facts which are apparent from the record by reading the revenue document and the documents annexed with the petition, it appears that the suit property is situated in Khasra No,838 owned by the Municipal Committee the respondent and was given to one Malik Herkishan Singh on lease for 99 years. The lessee constructed a cinema and after the partition of Sub-Continent the property was transferred in the name of Central Government. The Central Government was holding the same sometime through Provincial Government or the Garizon Engineer and later through Municipal Committee Abbottabad as reflected in the Revenue Record. The petitioner, it appears is relying on a transfer letter issued on 15-3-1963 claiming to be owner in possession on the basis of this document. A perusal of column 4 of Annexure A would show that no P.T.O. was issued in the name of the transferee namely Yamin ul Hay. Similarly Annexure C also indicates that the transferee did not make the full payment of the lease amount.
13.There is sufficient evidence on the file including the statement of the petitioner recorded by the Tribunal that the suit property was declared as 'Evacuee Property' after partition of the Sub- Continent, before that it was on lease, hence, even if the petitioner was a transferee he could not be given better right than the original lessee as he will step into his shoes and cannot had a higher or better status than the original lessee. The lease was for 99 years which was cancelled for non- payment of the lease amount, hence, the propriety rights vested back in the name of Municipal Committee Abbottabad. A perusal of the statement of the petitioner also shows that he, though claimed to have purchased the property in open auction but could not give the name of single bidder besides him nor he has established the mode of payment of his bid.
14.Mere existence of two letters which are also self contradictory and are issued by the Settlement Department cannot create ownership right in respect of the petitioner as against respondent Municipal Committee of which the ownership is established by virtue of a number of entries recorded in the jamabandis of numerous years.
15.The conduct of the petitioner who is seeking discretionary relief from this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is also exceptionable. He accepted the jurisdiction of the Tribunal in 1985 when the suit was decreed in his favour but filed the present petition challenging the jurisdiction of the said Tribunal as this time the order was passed against him.
16. A perusal of order dated 27-6-1994 also reflects on the conduct of the petitioner that although a Full Bench judgment of this Court (PLD 1988 Peshawar page 88) was in the field yet he withdrew his writ petition seeking permission to approach the proper Court for his redress but once again by filing the review petition the petitioner took a somersault and approached this counsel for adjudication of the writ petition on merits. It is with an advantage to mention here that this Court while deciding writ petition AWP No,2 of 1996 in its order dated 12-2-1989 has clearly dealt with the proposition of the jurisdiction of the Tribunal in para. 4 and there is a reference to the judgment of the Full Bench. Notwithstanding the full knowledge, the petitioner remained silent till 1994 when order dated 27-6-1994 was passed.
We are dealing with this petition in exercise of our original jurisdiction vested by Article 199 of the Constitution. The paramount consideration in disposing of this constitutional petition is to see the conduct of the parties which in the instant case reflects in negative as for the petitioner is concerned. Section 13 of the Act (ibid) which has been reproduced above is unambiguous and clearly empowers the Tribunal to go into the question of lease etc. in respect of public property. We do not find any illegality, non-exercise of jurisdiction or misreading or non-reading of evidence in the impugned judgment as such dismiss this writ petition with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.