HAMID ALI MIRZA, J.---This civil appeal with leave of this Court. Is directed against the judgment dated 11-6-1997 in Writ Petition No,30 of 1990 passed by learned Division Bench of the Peshawar High Court, Circuit Bench, Abbottabad, whereby the said writ petition was dismissed with costs.
2. Brief facts of the case are that respondent No,1 Municipal Committee, Abbottabad was going to auction Empire Cinema, Abbottabad on, 17-2-1979, hence the appellant filed Suit No,17/1 of 1979 under section 12 of N.-W.F.P. Public Property (Removal of Encroachment) Act (V of 1977) (hereinafter referred as the said Act, 1977), praying for declaration to the effect that he was owner in possession of the said cinema including the land and respondent No,1 did not have any right to auction the same, therefore notice/advertisement dated. 144-1979 showing Municipal Committee as owner of land of the Cinema in question as such its auction was illegal and of legal effect. The appellant also sought relief of permanent injunction to restrain the respondent/Municipal Committee from transferring the building and land through proposed auction. The respondent/Municipal Committee controverted the stand of the appellant. One Malik Jehandad also filed Suit No,16/I. Of 1979 who also claimed to be tenant under the appellant wherein said Jeliandad also prayed for restraint order against respondent No,1 Municipal Committee. Both suits were consolidated and consolidated issues were struck in both cases. Issue No,2 was settled as under:-- "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)." One Safdar Jang Khan alongwith others war also impleaded as parry in the suit of the appellant, therefore, seven issues were struck, Issue No,5 of which was as follows:- "Whether plaintiff has lease rights in the property?"
3. After recording evidence of parties, the Tribunal held that the appellant/plaintiff had acquired the property from the Settlement Department in the year 1960 and that respondent/Municipal Committee was not shown to be owner in the Revenue papers, therefore, suit decreed in favour of the appellant/plaintiff on 23-5-1985. The. Respondent, Municipal Committee preferred Writ Petition No,2 of 1986 before the Peshawar High Court, Circuit Bench, Abbottabad which was heard by learned Division Bench of the High Court and was accepted and the case was remanded to the Tribunal to take into consideration the issues framed on 21-3-1979. After remand learned District Judge/Tribunal, Abbottabad dismissed the suit of appellant and came to the conclusion that the appellant/plaintiff was not the owner of the suit land property as his possession over the same was of that of lessee under Municipal Committee, Abbottabad which lease having been terminated the respondent/Municipal Committee became sole owner of the said property as such possessed all rights to dispose of the said property in any manner. The appellant/plaintiff against the said judgment dated 7-4-1990 of the Tribunal/District Judge preferred Writ .Petition NO.30 of 1990 before the Peshawar High Court which was dismissed by the learned Judge in Chambers as per impugned judgment.
4. This Court granted leave on 18-12-1997 to consider the following questions:-- "(I) Whether the Tribunal constituted under section 12 of the 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?
(II) 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?
(III) 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?"
5. We have heard learned counsel for the parties and perused the record.
6. Learned counsel for the appellant has contended that the appellant was transferred the property in question as per statement Exh.PW.1/1 and Exh.PW-2/5 certificate dated 27-84964 of the Deputy Settlement Commissioner, Hazara, Abbottabad, whereby auction proceeds a sum of Rs,1,85,000 in respect of property in question was recovered and that neither P.T.O. Nor P.T.D. Was required to be issued for the purpose of transferring title under Settlement Scheme No,2. He further contended that learned District Judge/Tribunal had no jurisdiction to declare the respondent- Municipal Committee, Abbottabad as owner of the said property as the Tribunal had to decide limited question whether the-property Was not public property. He has also referred to sections 11 to 14 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 .(hereinafter referred to as the said Act, 1958) with regard to payment of compensation, its determination and determination of public dues recoverable from the local and recovery of arrears. Learned counsel for the appellant in support of his contentions had placed reliance upon (i) Sultan Ali v. Khushi Muhammad (PLD 1983 SC 243), (ii) Ali Muhammad v. Hussain Bakhsh and others (PLD 1976 SC 37),
(iii) Atta Muhammad Qureshi v. Settlement. Commissioner, Lahore and others (PLD 1971 SC 61), (iv)
Ghias-ud-Din v. Iqbal Ahmad and others (PLD 1975 Lahore 780), (v) Muhammad Farid and others v.
Municipal Committee, Abbottabad (PLD 1999 SC 41), (vi) Azizuddin v, Muhammad Ismail and others (1985 SCM R 666) and (vii) Wali Muhammad and others v. District Judge/Special Tribunal, D.I.Khan and others (1990 M LD 815).
7. Learned counsel for respondent No,1 has supported the impugned judgment and submitted that as per Register Haqdaran, land in question of the cinema belonged to the Government and was leased out to Harkishan Singh son of Malik Narain Singh for. Ninety: nine. Years under Municipal Committee, Abbottabad froin 1-14887. He submitted that the land admittedly belonged to respondent-Municipal Committee who leased out the same to Hindu for ninety-nine years on 1-1- 1887 over which building for cinema was built but due to default in the payment of lease money, lease was terminated, therefore, the land reverted to the respondent-Municipal Committee which became public property hence the Tribunal and the High Court were right in holding that the.
Property in question was a public property as such construction of cinema over the said land was liable to be removed being unauthorized. He in the alternate submitted that only the construction of the building over the land belonged to the evacuee, which could only be transferred to the transferee/appellant and not the land. He further submitted that the appellant himself having approached the Tribunal/District Judge for the relief and having participated in the proceedings cannot turn round when the relief has been refused then to contend that the Tribunal/District Judge had no jurisdiction or it had exceeded in its jurisdiction. He has placed reliance upon Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and others (PLD 1964 SC 829) in support of said contention. He further submitted' that the appellant has neither produced P.T.O nor P.T.D. In support of his entitlement as owner of property in dispute and further the said two documents on which he has relied upon are also not authenticated and therefore, their genuineness was doubtful, hence could not be considered to be also valid documents conveying title. He has also referred to unreported decision of this Court in Civil Petition No,1756 of 2001 (Malik Masood Ahmad v. District Judge and others) and C.P.No,1327 of 1998 (Akbar v. District Council, Abbottabad) wherein observations with regard to the scope of the exercise of jurisdiction of the Tribunal constituted under N.-W.F.P. Public Property (Removal of Encroachment) Act, 1977 were made.
8. We find no merit and substance in the submissions/contentions of the learned counsel for the appellant.
9. Contention of the learned counsel for the appellant has no substance that property in dispute is not a public property as it was transferred to the appellant as owner vide Above'. Stated two memos. By the Settlement Authorities, therefore, the notice and advertisement dated 14-2-1979 for auction of property were illegal and null and void. Admittedly as per material available on record the land over which building of Empire Cinema was raised in the year 1918 was owned by: respondent No,1 Municipal Committee, Abbottabad which was given to one Hindu on lease for ninety-nine years from 1-1-1887. The appellant has claimed right of ownership vide memo. Dated 15-3-1963 and Memo. No,2587/RI3, dated 24-3-1960 and letter dated 27-8-1994 issued by.The Deputy Settlement Commissioner. Learned counsel for the appellant has admitted that neither P.T.O. Nor P.T.D. Was ever issued in favour of the appellant. After partition of Subcontinent, the property viz. Building which was owned by Hindu was to be an evacuee whereas the said land which was on lease to said Hindu, the lessor of said land was the respondent, hence the said land could not be acquired under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act, 1958) consequently could not be' brought in the compensation pool for its transfer under the said Act, 1958. It is also admitted position that none paid lease money on the expiry of lease period of the land over which Empire Cinema was raised to respondent No,1 consequently the lease in favour of lessee stood terminated on the expiry of lease period as corroborated by Exh.RW-1/2, statement of Municipal Officer in earlier civil proceedings between Malik Partab Singh against Malik Harkishan Singh, therefore, the land in question reverted to respondent No,1-Municipal Committee, Abbottabad. In the circumstances, the land over which building of Empire Cinema was raised became public property of respondent No,1 as such the land being public property and only construction of cinema being only evacuee which construction also became unauthorized on the determination of lease because of non-payment of lease money hence liable to be removed under section 3 of the said Act V of 1977.
10. With regard to pleas raised in leave granting order, the scope of Tribunal under the North-West Frontier Province Public Property (Removal of Encroachment) Act, 1977 (hereinafter referred to as the said Act) the section 13 of the said Act states as follows:-- "A Tribunal has 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."
The above provision of said Act, 1977 would show that the Tribunal has exclusive jurisdiction to adjudicate upon the dispute as to whether the property in dispute was not a public property or if the lease or licence was granted in respect of such property whether same was not determined under the said Act. "Public property" as defined under subsection (h) of section 2 of the said Act, 1977 would mean "a building, land, place or premises, which vests in, or is in the possession or under the management or control of Government, Local Council, autonomous body, or such other authority". The property in question was admittedly- on lease with the said ' Hindu' who raised over the said land, a building for running a cinema, which land was leased out by ,the respondent local council i,e, Municipal Committee,. Abbottabad, therefore, the land fell under subsection (h) of the said Act. Admittedly, after expiry of lease period, lease money was not paid to the respondent by the appellant, therefore, the lease stood determined/terminated. In the circumstances the land, which was on lease with the then lessee reverted to the respondent Municipal Committee, the structure of building on the land also became unauthorized within the meaning of subsections (c)
(h) (i) (ii) (iii) of section 2 of said Act, 1977 on the determination of the lease of the land. It is true that the Tribunal constituted under the said Act has exclusive jurisdiction to adjudicate upon the dispute as to whether the property was not a public property or the lease or the licence of such property has not been determined but for adjudication of the said dispute it would be inevitable, unavoidable to determine the status of property as to whom the said property vested/belonged within the meaning of subsection (h) of the said Act, 1977. So also it would be of utmost importance to find out as to whether, the property in dispute vested with the Settlement Authorities so as to be available for its transfer under the Settlement Scheme or that the property vested with the respondent-Municipal Committee so as to fall under subsection (h) of section 2 of the said Act, 1977. The Tribunal has gone through the relevant documents on record and has rightly arrived at the conclusion that the property in dispute vested/belonged to the respondent-Municipal Committee, therefore, same was "public property" within the meaning of subsection (h) of section 2 of said Act 1977 as such could not be in the compensation pool and available for its transfer. Besides it be observed that .The appellant/plaintiff in the instant case himself approached the said Tribunal for determination of the said dispute claiming relief ,that the said notice of auction was illegal and void as it was not a "public property" belonging to the respondent-Municipal Committee, therefore, the Tribunal adjudicated upon the. Said dispute and came to the correct and legal conclusion that it was a "public property" considering that alter determination of the lease period, which having not been renewed/extended under the rules of the Municipal Committee said land reverted to the respondent. In the said circumstances, it cannot be said that the Tribunal by adjudication has exceeded its jurisdiction in declaring the said property to be public property vesting with the respondent/Municipal Committee or that the learned Division Bench of the High-Court committed any jurisdictional error in maintaining the finding of the lead Tribunal.
12. So far the contention of the learned counsel for the appellant that the issuance of the notices for auction the land were not legal, has no merit and force as after the appellant failed to remove the unauthorized structure as per material on record, said action on the part of the respondents was legal, proper and in accordance with law considering that neither Iease money was paid nor period of lease was got extended so as to make the structure of cinema to be legal/authorized, therefore, the land in dispute which vested with the respondent-Municipal Committee, being public property could not be transferred by the Settlement Authorities. Besides, it may be pointed out that the appellant/plaintiff having approached the Tribunal for the relief cannot be allowed/permitted to reprobate by pleading that the Tribunal had no jurisdiction on the ground that the Civil Court being the Court of plenary jurisdiction, would be competent to decide the dispute of ownership. It be borne in mind, that in order to determine the dispute as to whether the property was not a public property or the lease period of said public property has not .Been determined, the .Question of status/nature or title' of such property would be relevant and necessary to be determined as discussed above. In view of material on record and reasoning's, notices and action initiated by the respondent-Municipal Committee were legal, proper and in accordance with law.
13. So far the contention of learned counsel for the appellant in respect of evacuee industrial concern P.T.O. Or P.T.D. Is not required to be issued. We have gone through the Settlement Scheme No,2 but it has nowhere been provided that permanent or final transfer order of the property transferred was not required to be issued in case of industrial concern. Under Chapter IV, para.12 of the said Scheme it has been stated that when the Chief Settlement Commissioner has accepted the bid.And the amounts. Payable by the auction-purchaser have been duly paid in accordance with the terms and conditions of auction, the Chief Settlement Commissioner shall pass the final order of transfer of auctioned property and under para. 13 of the said chapter order of transfer of property shall be passed. It on the contrary lays down that after the entire amount is paid final order of transfer shall be passed i,e, F.T.O. Or P.T.D. In the instant case even the approval of the Chief Settlement Commissioner for acceptance of bid has not been produced by the appellant in support of his claim as is required under para.12, Chapter IV of the said Scheme.
14. The learned counsel for the appellant has referred to the provisions of sections 11 to 14 of the said Act, 1958 but the same dealt with the making of application for compensation, determination amount of compensation determination of public dues recoverable from local or non-claimant and recovery of arrears. These provisions of law do not state that P.T.O. Or P.T.D. Or F.T.O. Was not required to be issued in case of transfer of cinema. We have also gone through the above case- law cited by learned counsel for the appellant but the facts of the same are quite different and distinguishable to the facts of the instant case, therefore, the same are of not much help to the appellant's case.
16. In the circumstances. We are of the considered view that the judgments of learned Division Bench of the High' Court and that of the Tribunal are legal, proper and there being neither factual not legal infirmity therefore, required no interference in this appeal. Accordingly, this appeal has no merit which is hereby dismissed with no order as to cost.