' CH. MUHAMMAD ARIF, J.---Petitioner came to know about the efforts of the Municipal Committee, Abbottabad to auction Empire Cinema, Abbottabad on 17-2-1979 at 10-00 a.m. He filed a suit under section 12 of N.-W.F.P. Public Property (Removal of Encroachment) Act V of 1977 (hereinafter called the Act). His suit was registered under No,17/1 of 1979. The suit was for declaration to the effect that he is owner in possession of Empire Cinema including the land underneath and that defendant- Municipal Committee is not possessed of any right to auction the same. According to the petitioner/ plaintiff, notice/ advertisement, dated 14-2-1979, showing the respondent-Municipal Committee as owner of the cinema in question, and fixation of date for auction i,e,, dated 17-2-1979, are illegal and of no legal effect. A permanent injunction against the respondent-Municipal Committee restraining it from transferring the building and the land through proposed auction, was also prayed for.
2. In the written statement, the respondent-Municipal Committee controverted the stand taken by the petitioner and, before any important proceedings could be taken by the Tribunal in petitioner's suit, one Malik Jehandad also filed a suit before it which bore No,16/1 of 1979. He claimed himself to be a tenant under the petitioner/ plaintiff. Malik Jehandad had also prayed for a restraint order against the respondent/ Municipal Committee in relation to the proposed auction. Consolidated issues were struck in both the causes/ suits and Issue No,2 reads thus:-- "Is the disputed property "Public Property" within the meaning of clause (h) of subsection (2) of the N.-W.F.P. Act V of 1977?"
3. After framing the issues as above, one Safdar Jang, alongwith three others, applied for their impleadment as party to the petitioner's suit on 29-4-1982 and the same was allowed on 13-4-1993 (sic). The Tribunal, thereafter, framed 7 additional issues of which Issue No,5 reads thus:-- "Whether plaintiff has lease rights in the property?"
4. After recording evidence of the parties, the Tribunal held that petitioner/plaintiff had acquired the property from the then Settlement Department in the year 1960 and that the respondent- Municipal Committee is not shown to be owner in possession of Revenue Record. The suit was decreed in favour of the plaintiff vide judgment/ decree, dated 23-5-1985.
5. Feeling aggrieved of the judgment and decree of the Tribunal, dated 23-5-1985, the respondent- Municipal Committee filed Writ Petition No,2 of 1986 which was heard by a Division Bench of the Peshawar High Court and, accepting the same, the case was remanded back to the Tribunal with the direction to take into consideration the issues framed on 21-3-1989. On remand, the learned District Judge/Tribunal, Abbottabad came to the conclusion that the petitioner is not the owners of the suit property as his possession over the same was as a lessee under the Municipal Committee.
The lease having been terminated, the respondent Municipal Committee became sole owner of the property possessed of all the rights to dispose of the same in any matter, it liked. This happened on 4th October, 1990.
6. It was the judgment and decree, dated 7-4-1990, made by the Tribunal, that the petitioner challenged in Writ Petition No,30 of 1990 which has been dismissed by the High Court on 11-6-1997, as above.
7. We have heard Mr. Mushtaq Ali Tahirkheli, Advocate Supreme Court in support of this petition and Mr. Muhammad Munir Peracha, Advocate Supreme Court on behalf of the respondent-Municipal Committee. We are inclined to grant leave to consider the following questions:--
(1) Whether the Tribunal constituted under section 12 of N.-W.F.P. Public Property (Removal of Encroachment) Act V of 1977 was possessed of any jurisdiction to resolve the dispute between the petitioner and respondent-Municipal Committee, Abbottabad having a direct bearing on the question of ownership?
(2) Has the High Court not fallen into an error of jurisdiction in not considering the transfer of the disputed cinema to the petitioner by the then Settlement Department?
(3) in the facts and circumstances of this case, could the respondent-Municipal Committee at all start any adverse action against the petitioner/ transferee from the. Settlement Department, without first issuing appropriate process against him for the alleged failure on his part to pay the lease money to it and that too before the Civil Courts of plenary jurisdiction?
8. Order accordingly.