PLJ 2012 Lahore 326
Present: Sagheer Ahmad Qadri, J.
ABDUL WAHAB and 3 others--Petitioners
versus
ADDITIONAL SESSIONS JUDGE, OKARA and 4 others--Respondents
W.P. No. 18528 of 2011, heard on 23.1.2012.
Illegal Dispossession Act, 2005 (IX of 2005)--
----Ss. 3 & 5--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Possession on basis of Iqrar Nama Patadari--Sub-sequently illegally possessed--Addl. Sessions Judge had no jurisdiction to pass order for restoration of possession--Validity--No proceedings under Illegal Dispossession Act, were pending before ASJ, hence any subsequent order passed by ASJ for restoration of possession on basis of violation of any of terms and conditions of lease agreement compromise cannot vest him with jurisdiction to pass any order subsequently, as after passing the order, trial Court had become functus officio--No provision exists under Act, 2005 for restoration of possession of property subsequent to disposal of complaint hence the order passed by trial Court was illegal, without any jurisdiction hence was declared as illegal and ineffective upon rights of petitioner--Petition was allowed. [Pp. 330 & 331] A & B
2011 YLR 1549 & 2011 MLD 621, ref.
Rao Abid Mushtaq, Advocate for Petitioners.
Mr. Munir Ahmad Bhatti and Shahid Mobeen, Addl. A.G., Advocate for Respondents.
Date of hearing: 23.1.2012.
Judgment
Respondent No. 4/Rao Sohail Akhtar filed an application under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 on 1.9.2008 against the petitioner Abdul Wahab and three others mentioning the facts that he was owner in respect of 63 Kanals 7 marlas of land, detail of which is given in Para 1 of the complaint. It was agitated in the complaint that petitioners were in possession of the above mentioned land on the basis of Iqrar Nama Patadari for the period commencing from 30.6.2006 to 30.6.2008; that on 30.6.2008 the petitioners handed over the possession of the land to Respondent No. 4, however, subsequently they illegally possessed the land. Later on, on 16.7.2008 when Respondent No. 4 went to the land in question he found some unknown persons present there armed with deadly weapons and they threatened him for dire consequences, thereafter, the complainant lodged FIR. No. 498 of 2008 under Sections 447, 148, 149 PPC read with Section 506 PPC against the petitioners, who got themselves bailed out from the Court of learned Additional Sessions Judge. It was prayed that action under the Illegal Dispossession Act be initiated against the petitioners and they be penalized accordingly and the possession of the land be restored to him.
2. The complaint remained on pending in the Court of learned Additional Sessions Judge and later on vide order dated 18.6.2009 the matter was disposed of having been compromised. The operative part of the order is hereby reproduced:--
"A compromise has been effected between the parties before the Court in the presence of learned Counsel for the complainant. It has been agreed that possession of the impugned land shall be considered that of the complainant through respondents as lessee. The lease of the impugned property is extended till 30.6.2011 and for the previous year starting from 30.6.2008 to coming 30th June, 2009 the per acre lease money has been fixed as Rs. 22,000/- (Twenty two thousand) and from 1st July, 2009 to onward till the end of lease period till 30.6.2011 the amount of lease money is fixed Rs. 33,000/- (Thirty three thousand) per acre. It has been settled between the parties that lease amount shall be paid through cheques and those cheques shall be issued for 30.7,2009 and 30.8.2009. Likewise the lease amount for the next lease period starting from 30.6.2009 to 30.6.2011, cheque shall be issued, each of the amount of Rs. 1,72,000/- (One Lac Seventy two thousand). In this way, in the presence of Court the respondent Rao Wahab has issued Cheque No. S.25218835 to the amount of Rs. 16,000/-(Sixteen thousand) in the name of Sohail Akhtar. Rao Wahab has also Issued Cheque No. S.25218836 for Rs. 1,72,000/- (One Lac Seventy two thousand) in favour of Sohail Akhtar for 30.8.2009. Moreover three more cheques for next lease period Nos. S.25218832, S.2521883 S.25218833 dated 30.6.2010, 30.06.2011 and 30.12.2010 respectively have been given to the complainant in the presence of learned counsel for the complainant. On completion of period of lease on 30.6.2011 the vacant possession of the impugned land shall be delivered to the complainant by the respondents on 1st July, 2011. The complainant and his Counsel have signed on the margin of the order sheet as a token of receiving five cheques. In case any of the cheque is dishonoured the complainant shall be entitled to immediate return of the possession. Signatures of the respondents have also been obtained on the margin of the order sheet.
In view of agreement made above and delivery of cheques to the complainant, the complaint is disposed of File be consigned to the record room after its completion."
Subsequently, Respondent No. 4 on 2.7.2011 moved a miscellaneous application before the learned Additional Sessions Judge wherein he after giving the facts mentioned above in Para 5 of the application recorded that vide compromise dated 18.6.2009 cheque Bearing No. S.25218834 dated 30.6.2011 worth Rs. 1,72,000/- was presented in the concerned bank but it was dishonoured hence the petitioners have violated the terms & conditions of the agreement and prayed that while allowing the application possession of the property/land in dispute be restored to him. On this application the learned Additional Sessions Judge summoned the petitioners and vide impugned order dated 9.8.2011 while allowing the application directed the petitioners to handover the possession of the land to Respondent No. 4 failing which it was further directed that police aid be also provided to Respondent No. 4 for implementation of the above mentioned order. Feeling aggrieved the petitioners have preferred this writ petition before this Court.
3. Learned counsel for the petitioners contends that impugned order dated 9.8.2011 is illegal, against the law and facts of the case and has been passed totally in disregard of the facts and circumstances of the case; that learned Additional Sessions Judge while passing the impugned order relied on 2011 YLR 1549 and 2011 MLD 621 but both of the judgments cited above are not related for the purposes of disposing of this controversy; that no complaint under Illegal Dispossession Act, 2005 was pending before the learned Additional Sessions Judge/Respondent No. 1, hence, any order for restoration of the possession in these circumstances could have not been passed; that Respondent No. 4 was claiming his ownership in respect of the disputed land which has already been challenged in a civil suit which is still pending before the concerned Civil Court. Contends that as the petitioners were in possession of the land in dispute on the basis of a lease agreement hence their possession could not be termed as illegal and as no such proceedings are pending, therefore, the learned Additional Sessions Judge/Respondent No. 1 did not have any jurisdiction to pass the impugned order for restoration of the possession to Respondent No. 4. Prayed that the impugned order passed by learned Additional Sessions Judge be declared as illegal, having been passed without any lawful authority and jurisdiction exercised by him is also required to be declared totally non-vested to him.
4. On the other hand, learned counsel for Respondent No. 4 has vehemently opposed this petition while referring the order dated 18.6.2009 wherein during the pendency of the petition under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 the petitioners and Respondent No. 4 entered into a compromise and they were allowed to continue the possession as lessee. Learned counsel referred that if the terms & conditions of the agreement are seen it has specifically been recorded by the learned Additional Sessions Judge that in case any of the cheques delivered to Respondent No. 4 is dishonoured, the Complainant/Respondent No. 4 shall be entitled to get returned the possession of the disputed property. Learned counsel argued that earlier in such like situation when one of the cheques was dishonoured, application moved before the learned Additional Sessions Judge/ Respondent No. 1 and the petitioners paid Rs. 1,72,000/- in cash to him. Contends that as earlier order was passed before a Court of competent jurisdiction whereby the parties entered into a compromise, therefore, in case of violation that order can be implemented by the said learned Court hence the impugned order passed by the learned trial Court is perfectly lawful and does not call for interference by this Court in exercise of writ jurisdiction.
5. Learned AAG, however, argued that as no proceedings under Sections 3, 4 read with Sections 7 & 8 of the Illegal Dispossession Act, 2005 were pending before the learned Additional Sessions Judge/ Respondent No. 1 and earlier while disposing of the complaint under Sections 3 & 5 of the Act, ibid the learned Additional Sessions Judge did not pass any order declaring the possession of petitioners as illegal and parties reached at a compromise whereby the possession of petitioners was taken as lessee, therefore, the impugned order passed by learned trial Court/Respondent No. 1 is illegal and without any justification rather without any jurisdiction. However, while raising these arguments he supported the arguments advanced by learned counsel for the petitioners.
6. I have heard the arguments addressed by learned counsel for the parties and have gone through the record.
7. Admittedly, the earlier controversy pending before the learned Additional Sessions Judge/Respondent No. 1 ended on 18.6.2009, which order has already been reproduced in the earlier part of this order. If the said order is seen, in first part of the compromise recorded by the learned Additional Sessions Judge the possession of the petitioners has specifically been accepted by Respondent No. 4 as lessee. It is admitted fact that previously petitioners were in possession of the land in question as lessee/patadar which remained effective till 30.6.2008. In view of the agreement/compromise dated 18.6.2009 petitioners' possession over the disputed portion of land remained as lessee lawful and not as illegal or that of trespasser, however, certain conditions were fixed for the payment of the lease amount and for securing the payment some cheques were issued by the petitioners in favour of Respondent No. 4. It is admitted fact that through out the impugned order dated 18.6.2009 the learned Additional Sessions Judge never termed the possession of the petitioners over the disputed portion of land as illegal. The complaint under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 earlier filed hence was disposed of vide order dated 18.6.2009, therefore, subsequent to that no proceedings under the Act, ibid were pending before the learned Additional Sessions Judge, hence, any subsequent order passed by learned Additional Sessions Judge for the restoration of the possession on the basis of violation of any of the terms & conditions of the lease agreement/ compromise cannot vest him with jurisdiction to pass any order subsequently, as after passing the order dated 18.6.2009, the learned trial Judge has become functus officio.
8. If the provisions of Illegal Dispossession Act, 2005 are seen, under Section 3 of the Act it is provided:--
"Prevention of illegal possession of property, etc.--(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.
(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of Section 544 of the Code."
Under Section 4 of the Act, ibid, a Court can take the cognizance of the offence and subsequently under Section 5 the procedure for investigation is provided. Under Section 6 the Court can attach the property. Section 7 provides eviction and mode of recovery as an interim relief during the pendency of the trial. If Section 7 is seen its provisions only can be invoked during the pendency of a complaint before a Court of competent jurisdiction. Under Section 8 it is provided that at the time of the conclusion of the trial the Court may direct for the delivery of the possession of the property to the owners etc. In the light of above referred provisions of the Illegal Dispossession Act, 2005 if the facts narrated are seen, the learned trial Court never declared the petitioners in illegal possession of the land in dispute nor any interim order under Section 7 during the pendency of the proceedings was passed and even at the time of disposing of the complaint no direction was passed under Section 8 for delivery of the possession. It was just an arrangement/ compromise between the parties i.e. petitioners and Respondent No. 4 wherein petitioners' possession was accepted by Respondent No. 4 as lessee and in order to secure the payment of the lease money a mode was agreed between the parties and for that purposes post dated cheques were issued. As no provision exists under the Illegal Dispossession Act, 2005 for restoration of the possession of the property in dispute subsequent to disposal of the complaint hence the impugned order passed by learned trial Court dated 9.8.2011 is illegal, without any jurisdiction hence is declared as illegal and ineffective upon the rights of the petitioners. The respondent, however, may initiate any other lawful action against the petitioners to recover the lease money or the possession over the property/land in dispute. Resultantly, instant writ petition is allowed, however, with no order as to costs.
(R.A.) Petition allowed
Present: Sagheer Ahmad Qadri, J.
ABDUL WAHAB and 3 others--Petitioners
versus
ADDITIONAL SESSIONS JUDGE, OKARA and 4 others--Respondents
W.P. No. 18528 of 2011, heard on 23.1.2012.
Illegal Dispossession Act, 2005 (IX of 2005)--
----Ss. 3 & 5--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Possession on basis of Iqrar Nama Patadari--Sub-sequently illegally possessed--Addl. Sessions Judge had no jurisdiction to pass order for restoration of possession--Validity--No proceedings under Illegal Dispossession Act, were pending before ASJ, hence any subsequent order passed by ASJ for restoration of possession on basis of violation of any of terms and conditions of lease agreement compromise cannot vest him with jurisdiction to pass any order subsequently, as after passing the order, trial Court had become functus officio--No provision exists under Act, 2005 for restoration of possession of property subsequent to disposal of complaint hence the order passed by trial Court was illegal, without any jurisdiction hence was declared as illegal and ineffective upon rights of petitioner--Petition was allowed. [Pp. 330 & 331] A & B
2011 YLR 1549 & 2011 MLD 621, ref.
Rao Abid Mushtaq, Advocate for Petitioners.
Mr. Munir Ahmad Bhatti and Shahid Mobeen, Addl. A.G., Advocate for Respondents.
Date of hearing: 23.1.2012.
Judgment
Respondent No. 4/Rao Sohail Akhtar filed an application under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 on 1.9.2008 against the petitioner Abdul Wahab and three others mentioning the facts that he was owner in respect of 63 Kanals 7 marlas of land, detail of which is given in Para 1 of the complaint. It was agitated in the complaint that petitioners were in possession of the above mentioned land on the basis of Iqrar Nama Patadari for the period commencing from 30.6.2006 to 30.6.2008; that on 30.6.2008 the petitioners handed over the possession of the land to Respondent No. 4, however, subsequently they illegally possessed the land. Later on, on 16.7.2008 when Respondent No. 4 went to the land in question he found some unknown persons present there armed with deadly weapons and they threatened him for dire consequences, thereafter, the complainant lodged FIR. No. 498 of 2008 under Sections 447, 148, 149 PPC read with Section 506 PPC against the petitioners, who got themselves bailed out from the Court of learned Additional Sessions Judge. It was prayed that action under the Illegal Dispossession Act be initiated against the petitioners and they be penalized accordingly and the possession of the land be restored to him.
2. The complaint remained on pending in the Court of learned Additional Sessions Judge and later on vide order dated 18.6.2009 the matter was disposed of having been compromised. The operative part of the order is hereby reproduced:--
"A compromise has been effected between the parties before the Court in the presence of learned Counsel for the complainant. It has been agreed that possession of the impugned land shall be considered that of the complainant through respondents as lessee. The lease of the impugned property is extended till 30.6.2011 and for the previous year starting from 30.6.2008 to coming 30th June, 2009 the per acre lease money has been fixed as Rs. 22,000/- (Twenty two thousand) and from 1st July, 2009 to onward till the end of lease period till 30.6.2011 the amount of lease money is fixed Rs. 33,000/- (Thirty three thousand) per acre. It has been settled between the parties that lease amount shall be paid through cheques and those cheques shall be issued for 30.7,2009 and 30.8.2009. Likewise the lease amount for the next lease period starting from 30.6.2009 to 30.6.2011, cheque shall be issued, each of the amount of Rs. 1,72,000/- (One Lac Seventy two thousand). In this way, in the presence of Court the respondent Rao Wahab has issued Cheque No. S.25218835 to the amount of Rs. 16,000/-(Sixteen thousand) in the name of Sohail Akhtar. Rao Wahab has also Issued Cheque No. S.25218836 for Rs. 1,72,000/- (One Lac Seventy two thousand) in favour of Sohail Akhtar for 30.8.2009. Moreover three more cheques for next lease period Nos. S.25218832, S.2521883 S.25218833 dated 30.6.2010, 30.06.2011 and 30.12.2010 respectively have been given to the complainant in the presence of learned counsel for the complainant. On completion of period of lease on 30.6.2011 the vacant possession of the impugned land shall be delivered to the complainant by the respondents on 1st July, 2011. The complainant and his Counsel have signed on the margin of the order sheet as a token of receiving five cheques. In case any of the cheque is dishonoured the complainant shall be entitled to immediate return of the possession. Signatures of the respondents have also been obtained on the margin of the order sheet.
In view of agreement made above and delivery of cheques to the complainant, the complaint is disposed of File be consigned to the record room after its completion."
Subsequently, Respondent No. 4 on 2.7.2011 moved a miscellaneous application before the learned Additional Sessions Judge wherein he after giving the facts mentioned above in Para 5 of the application recorded that vide compromise dated 18.6.2009 cheque Bearing No. S.25218834 dated 30.6.2011 worth Rs. 1,72,000/- was presented in the concerned bank but it was dishonoured hence the petitioners have violated the terms & conditions of the agreement and prayed that while allowing the application possession of the property/land in dispute be restored to him. On this application the learned Additional Sessions Judge summoned the petitioners and vide impugned order dated 9.8.2011 while allowing the application directed the petitioners to handover the possession of the land to Respondent No. 4 failing which it was further directed that police aid be also provided to Respondent No. 4 for implementation of the above mentioned order. Feeling aggrieved the petitioners have preferred this writ petition before this Court.
3. Learned counsel for the petitioners contends that impugned order dated 9.8.2011 is illegal, against the law and facts of the case and has been passed totally in disregard of the facts and circumstances of the case; that learned Additional Sessions Judge while passing the impugned order relied on 2011 YLR 1549 and 2011 MLD 621 but both of the judgments cited above are not related for the purposes of disposing of this controversy; that no complaint under Illegal Dispossession Act, 2005 was pending before the learned Additional Sessions Judge/Respondent No. 1, hence, any order for restoration of the possession in these circumstances could have not been passed; that Respondent No. 4 was claiming his ownership in respect of the disputed land which has already been challenged in a civil suit which is still pending before the concerned Civil Court. Contends that as the petitioners were in possession of the land in dispute on the basis of a lease agreement hence their possession could not be termed as illegal and as no such proceedings are pending, therefore, the learned Additional Sessions Judge/Respondent No. 1 did not have any jurisdiction to pass the impugned order for restoration of the possession to Respondent No. 4. Prayed that the impugned order passed by learned Additional Sessions Judge be declared as illegal, having been passed without any lawful authority and jurisdiction exercised by him is also required to be declared totally non-vested to him.
4. On the other hand, learned counsel for Respondent No. 4 has vehemently opposed this petition while referring the order dated 18.6.2009 wherein during the pendency of the petition under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 the petitioners and Respondent No. 4 entered into a compromise and they were allowed to continue the possession as lessee. Learned counsel referred that if the terms & conditions of the agreement are seen it has specifically been recorded by the learned Additional Sessions Judge that in case any of the cheques delivered to Respondent No. 4 is dishonoured, the Complainant/Respondent No. 4 shall be entitled to get returned the possession of the disputed property. Learned counsel argued that earlier in such like situation when one of the cheques was dishonoured, application moved before the learned Additional Sessions Judge/ Respondent No. 1 and the petitioners paid Rs. 1,72,000/- in cash to him. Contends that as earlier order was passed before a Court of competent jurisdiction whereby the parties entered into a compromise, therefore, in case of violation that order can be implemented by the said learned Court hence the impugned order passed by the learned trial Court is perfectly lawful and does not call for interference by this Court in exercise of writ jurisdiction.
5. Learned AAG, however, argued that as no proceedings under Sections 3, 4 read with Sections 7 & 8 of the Illegal Dispossession Act, 2005 were pending before the learned Additional Sessions Judge/ Respondent No. 1 and earlier while disposing of the complaint under Sections 3 & 5 of the Act, ibid the learned Additional Sessions Judge did not pass any order declaring the possession of petitioners as illegal and parties reached at a compromise whereby the possession of petitioners was taken as lessee, therefore, the impugned order passed by learned trial Court/Respondent No. 1 is illegal and without any justification rather without any jurisdiction. However, while raising these arguments he supported the arguments advanced by learned counsel for the petitioners.
6. I have heard the arguments addressed by learned counsel for the parties and have gone through the record.
7. Admittedly, the earlier controversy pending before the learned Additional Sessions Judge/Respondent No. 1 ended on 18.6.2009, which order has already been reproduced in the earlier part of this order. If the said order is seen, in first part of the compromise recorded by the learned Additional Sessions Judge the possession of the petitioners has specifically been accepted by Respondent No. 4 as lessee. It is admitted fact that previously petitioners were in possession of the land in question as lessee/patadar which remained effective till 30.6.2008. In view of the agreement/compromise dated 18.6.2009 petitioners' possession over the disputed portion of land remained as lessee lawful and not as illegal or that of trespasser, however, certain conditions were fixed for the payment of the lease amount and for securing the payment some cheques were issued by the petitioners in favour of Respondent No. 4. It is admitted fact that through out the impugned order dated 18.6.2009 the learned Additional Sessions Judge never termed the possession of the petitioners over the disputed portion of land as illegal. The complaint under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 earlier filed hence was disposed of vide order dated 18.6.2009, therefore, subsequent to that no proceedings under the Act, ibid were pending before the learned Additional Sessions Judge, hence, any subsequent order passed by learned Additional Sessions Judge for the restoration of the possession on the basis of violation of any of the terms & conditions of the lease agreement/ compromise cannot vest him with jurisdiction to pass any order subsequently, as after passing the order dated 18.6.2009, the learned trial Judge has become functus officio.
8. If the provisions of Illegal Dispossession Act, 2005 are seen, under Section 3 of the Act it is provided:--
"Prevention of illegal possession of property, etc.--(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.
(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of Section 544 of the Code."
Under Section 4 of the Act, ibid, a Court can take the cognizance of the offence and subsequently under Section 5 the procedure for investigation is provided. Under Section 6 the Court can attach the property. Section 7 provides eviction and mode of recovery as an interim relief during the pendency of the trial. If Section 7 is seen its provisions only can be invoked during the pendency of a complaint before a Court of competent jurisdiction. Under Section 8 it is provided that at the time of the conclusion of the trial the Court may direct for the delivery of the possession of the property to the owners etc. In the light of above referred provisions of the Illegal Dispossession Act, 2005 if the facts narrated are seen, the learned trial Court never declared the petitioners in illegal possession of the land in dispute nor any interim order under Section 7 during the pendency of the proceedings was passed and even at the time of disposing of the complaint no direction was passed under Section 8 for delivery of the possession. It was just an arrangement/ compromise between the parties i.e. petitioners and Respondent No. 4 wherein petitioners' possession was accepted by Respondent No. 4 as lessee and in order to secure the payment of the lease money a mode was agreed between the parties and for that purposes post dated cheques were issued. As no provision exists under the Illegal Dispossession Act, 2005 for restoration of the possession of the property in dispute subsequent to disposal of the complaint hence the impugned order passed by learned trial Court dated 9.8.2011 is illegal, without any jurisdiction hence is declared as illegal and ineffective upon the rights of the petitioners. The respondent, however, may initiate any other lawful action against the petitioners to recover the lease money or the possession over the property/land in dispute. Resultantly, instant writ petition is allowed, however, with no order as to costs.
(R.A.) Petition allowed
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