MUHAMMAD MOOSA K. LAGHARI, J.-- Through this application, the defendants have prayed for rejection of the plaint in suit on the ground that the plaintiff has not exhausted the remedies provided under the law viz. Sindh Public Property (Removal of Encroachment) Act, 1975 (hereinafter referred to as the Act V of 1975 and that the suit was barred under section 11 thereof.
2. The plaintiff filed counter-affidavit to the appellation under Order VII, Rule 11, C.P.C. Denying the pleas taken in the said application.
3. The plaintiff in his suit for declaration, injunction, damages and compensation has pleaded that the suit land was granted to his mother on 30 years lease in the year 1988 for the purpose of poultry farming. The suit land was subsequently leased out to hear for a period of 99 years on 29.10.1991 for industrial purpose on payment of occupancy price of the entire land amounting to Rs. 16 lacs having been paid on 19.10.1991. The demarcation plan was issued by the revenue department.
Subsequently, the mutation also took place in favour of the lessee. She was enjoying continuous undisturbed possession of the said and until it was gifted to the plaintiff on 30.11.1993. According to the plaintiff, he was served with a notice dated 29.5.1999 by the defendant under Section 3 of the Act V of 1975 whereby the {{BLUR}} plaintiff was directed to encroachment/structure 'raised on the said pbbli8T06piffiVW1ftiiril-'i Period of three days"ftorn'the date of receipt of the notice. It was. Further -directed irvAh-W-said notice that if the -plaintifftWaS'fi possession cif anY4appiottfaicfrorb the competent ;authorifii'that'itiodifbe'rif&lcied to appears that the 'Plaintiff sifbrnitY16--reaceVated 51'6A999 to the Director` of the-defendant 'WhiCii-Wirs'Serifthrough re'giStef*Fpngt. .According;to the plaintiff, consequent upon service of notice dated 29.5.1999, the cause of action accrued to the plaintiff and was continuing as tie said not was not witharawn. In the ,5f-1416:1 circumstances,' the present suit was filed with the following prayers :-- -
(a) That the plaintiff is owner and in possession of the land bearing No. 6 acres bearing New Survey No. 395 total measuring 16 acres, exceptQ.Pacr fin the I4 i61(1 narne,pf his elder brotherao mentioned in: pata:`.,tlo. Four sit beteu,above,_ situatediin Green()3elt Korangi Industrial Area Deh Taluka-x,Xarachi,,,,(East) Karachi Co-4erative pc, 01 FarrningSocietyc..99.Thebasis of the annexbre Gifts Deed andjorm...J\19. 11; and _earlier registered Lease Deed and Demarcation Plan etc.
(0) That the land described in prayer (a) is not Qwned by the Governint atter the grant of 99 years Lease,_ , . #TBS (c) #TBE Declare, that the show cause notice -ancL2Q..-ft.1,999 issued 12'Lthe defenclant under section 3 of Sindh Public Property (Remoya Encroachm t) Act, 1975 to the w . Joublolof akin en 7 r erit lot 8f:plaiptiff relating4,9,,IhIsjoyd is illegal, without vi .r, and has beenis.,:,yftaiyy)tprmala fide rTiotiyreppe,htiOri.;1;,;" ilrO&Manent iiifunctiarv:-:31/yeissuedioagainstilhertDefiendapt bn-S1 all-taricrell persons attirtgAhr-ougttr,)ortund- ler.tOem restreihihg 9111: ree thertf; ft6rrt?Iatakingd ariivi3cbereive action.
Against the --109mt1Gm'Plaihtifivoh of t bads btiiiiebaVilaticeFdatelF2Sful:999 ""99229/ (Arttitioafre ,yifrioupea-du I Ff2 odrg Damages coh?0-,,enstiO9 to ''the:ext6tit or Trio arts.
8,06,b001b4 w Dr16 yd set - on 6 bwoez -dt 4.01 iZost of the suit. ,A or} {{BLUR}}
4. The plaintiff also filed application under Order XXXIX, Rules 1 and 2, C.P.C. And ad interim relief was granted to the plaintiff.
5. Learned counsel for the parties have been heard.
6. Learned counsel appearing for the defendant contends that the plaintiff had encroached upon the public property and that the notice was validly served upon him. He further contends that a remedy was provided under the Act V of 1975 but instead of availing that remedy, the plaintiff has challenged the notice in the instant suit which was premature. He further contends that the jurisdiction of Civil Court was specifically barred under the provisions of Section 11 of the Act V of 1975. In support of his above contentions, learned counsel for the defendant has relied upon the following case law:-
(i) PLD 1993 Lahore 301;
(ii) PLD 1993 Lahore 294; (i.e) PLD 1979 Karachi 706; and
(iv) PLD 1966 (W.P.) Peshawar 34.
7. On the other hand, learned counsel for the plaintiff has contended that for the purpose of disposal of application under Order VII, Rule 11, C.P.C. Only the averments made in the plaint are to be looked into and that those averments are presumed to be correct He has next argued that the jurisdiction of the Civil Court even if barred and conferred upon Special Tribunal, the Civil Court being Court of ultimate jurisdiction shall have the jurisdiction to examine acts of such forums. He next argued that the Tribunal constituted under the Act V of 1975 was not competent to determine the question of ownership of the plaintiff. He further contended that the ouster of the jurisdiction of Civil Court was not to be readily inferred unless that was taken away either expresly or impliedly., In support of his above contentions, learned counsel has relied upon the following case-laws:-- 1991 MLD 284; 1974 SCMR 356)
(iv) PLD 1999 S.C. 41;
(v) 2001 SCMR 953;
(vi) 2001 SCMR 398;
(vii) 2000 MLD 1537.
8. I have considered the arguments and have benefited from the case-law relied upon by both the learned counsel.
9. There is no cavil to the proposition of law that for the purpose of disposal of an application under Order VII, Rule 11, C.P.C., the averments contained in the plaint are to be taken into consideration and the same are presumed to be correct. It is also a well-established proposition that the bar of jurisdiction cannot be readily inferred unless it was expressly or impliedly barred. Undoubtedly, even if the jurisdiction of Civil Court was conferred upon Special Tribunal, the Civil Court shall have the jurisdiction to look into the illegality or male fides in the orders passed by the administrative authorities, the Civil Courts being the Court of ultimate jurisdiction. However, the facts of the instant suit are distinguishable from the cases relied upon by the learned counsel for the plaintiff.
10. So far as facts of the case in hand are concerned, the plaintiff was issued a notice whereby he was directed to remove the encroachments. The plaintiff was issued a notice under section 3 of the Act V of 1975. It is significant to note that according to the contents of last para of notice the plaintiff was directed to produce/provide the approval, if the same was issued by the competent authority and in case the same was available with him. According to the pleadings of the plaintiff himself, he had submitted a reply to the notice on 5.6.1999 which was sent by him through registered post to the Director Estate and Enforcement, Karachi Development Authority. However, it seems that before any final order could be passed by the authority, the plaintiff approached this Court by filing the present suit. For the reasons that the matter was sub judice in this Court, no further/final orders were passed by the defendants. It is an undeniable fact that the notice was issued to the plaintiff under the provisions of the Act V of 1975 which provides a remedy by way of preferring a review petition and in case the grievance of a party was not redressed through the review petition, the law provides a mechanism whereby a Tribunal has been constituted under Section 12 of the said Act and the jurisdiction of the said Tribunal has been defined in Sectiohs 13 and 14 of the Act V of 1975. It is also an undisputed tact that the plaintiff has not exhausted the remedies provided under the said law. It is a settled principle of law that where a statute creates a right and also provides a machinery for its enforcement, the party complaining of infringement of such a right must first avail himself of the remedy provided by the statue for such breach before coming to the Civil Court. The above principle was laid down in the case of Tariq Transport Co.
Lahore v. Sargodha-Bhera Bus Service, Sargodha -and 2 others reported in PLD 1958 SC. (Pak) 437.
The Hon'ble Supreme Court in the case of Shagufta Begum v. The Income Tax Officer Circle-XI, Zone-B, Lahore (PLD 1989 S.C. 360) was pleased to express the view that the departmental remedy being speedier, it was in the interest of the litigant himself first to choose the speedier remedy of the departmental authorities. In the present case, since no final order has been passed and merely a notice has been issued to the plaintiff to show to the defendants the documents so as to verify his claim. In the case of Government of Sindh and others v. Mst. Najma (2001 SCMR 8) + (2001 PLR 1034), it was observed by the Hon'ble apex Court, "Show-cause notice is issued when there is ambiguity and further clarification is essential for reaching a final conclusion". I am of the view that no prejudice has been caused to the plaintiff as no final order has been passed against him. Thus, no cause of action accrued to the present suit. "The suit is patently premature.
11. In the circumstances, the plaint being without cause of action is liable to be rejected which is accordingly rejected. The plaintiff may pursue his remedy under the Act V of 1975 if he so chooses and in that eventuality, the government/the Tribunal shall pass appropriate orders on the merits of the case subject, however, to the provisions of law.
12. In view of the above order, all the remaining applications being CMAs Nos.- 4119/2000, 5358/1999 and 9782/2000 was become infructuous and are accordingly dismissed.