case law in illegal dispossession act

PLJ 2009 Cr.C. (Peshawar) 365

Present: Muhammad Alam Khan, J.

Illegal Dispossession Act, 2005–

—-S. 4(i)–Pakistan Penal Code, (XLV of 1860), S. 448–Criminal Procedure Code, (V of 1898), S. 439–Applicability to ordinary disputes–Dispute between the parties is purely of a civil nature and much prior to the filing of the petition–FIR was lodged by the petitioner against the respondents which was still pending and will be decided on its own merits–Presence of civil liability recoverable under the ordinary law of the land–Provisions of Illegal Dispossession Act, are not applicable in the circumstance–Revision dismissed.    [P. 367] A

Judgment

The petitioner Muhammad Sohail moved the Court of District and Sessions Judge, Peshawar through a complaint under Section 4 (i) of Illegal Dispossession Act, 2005, for the restoration of possession of House No. 492 Street No. 5 Sector F/9, Phase-VI Hayatabad, Peshawar. It was averred in the complaint that the petitioner was owner in possession of the above mentioned house. A sale transaction of the said house was struck by Fazal Muhammad and Munshi Brigade respondents for a total sale consideration of Rs. 22,00,000/- (twenty two lacs) with the complainant. It is averred in the application that

Rs. 1,00,000/- (one lac) was paid as earnest money by the respondents while a cheque of Rs. 18,00,000/- (eighteen lacs) was given by Respondent No. 2 at the time of transfer of the said house, in the office of Peshawar Development Authority, while the remaining balance of

Rs. 3,00,000/- (three lacs) was promised to be paid after return of Respondent No. 1 from abroad. Further allegations in the complaint are that on the return of Respondent No. 1 from foreign country, he started resorting to delaying tactics and instead of paying the above sale consideration flatly refused to pay the same. That some 4/5 months back Respondent No. 1 with the help of his servants and servant of Naveed, Property Dealer, opened the locks, doors and windows of the house and took forcible possession and thus, it was prayed, that as the respondents have committed an offence under the provisions of Illegal Dispossession Act, 2005, therefore, they should be arrested, tried and punished.

2. A similar application was inquired into by the local police of Tatara Police Station, Hayatabad Peshawar, who after conducting inquiry submitted its report to the effect that Fazal Muhammad has gone to Dubai and on his return he will be dealt with in accordance with law.

3. The learned trial Court after summoning the respondents and hearing the learned counsel for the parties by his order dated 15.3.2007, dismissed the application and hence the present criminal revision petition.

4. Mr. Alamzeb Khan, Advocate for the petitioner was heard in detail and Respondents 1 and 2 submitted written arguments. Learned counsel for the petitioner submitted that the respondents have taken the illegal possession of the house in dispute some four or five months before the institution of the present complaint and thus, are liable to the punitive action under the provisions of Illegal Dispossessions Act (Act No. XI of 2005).

5. That once it is proved on record that illegal possession is taken by a person, irrespective of the fact whether under the garb of legal title or not, the offence stands established and proceedings can be initiated against the wrong doers. It was further submitted that in the instant case, even if the respondents undertake to pay the balance sale consideration, that will neither minimize the effect of the offences already committed nor would totally absolve them of their criminal liability. Mr. Muhammad Saeed Khan Shangla, Additional Advocate General supported the impugned order passed by the learned Additional District Judge-X, Peshawar.

6. On the other hand, respondents submitted that the matter is purely of a civil nature. A sale bargain had been struck between the petitioner and Respondent No. 1 and the major portion of sale consideration had been paid and the remaining amount of Rs. 3,00,000/-(three lacs) is outstanding. At the time of agreement to sell, the possession had been handed over by the complainant to the respondent. It was also submitted that the petitioner has lodged FIR No. 60 dated 21.4.2006, under Section 448 PPC, in Tatara Police Station, Hayat Abad, Peshawar, which is under investigation, thus, it was submitted that on the touch stone of the authority reported in PLD 2007 Lahore 231 captioned Zahoor Ahmad and 5 others Vs. The State and three others, the matter in dispute does not come within the ambit of Illegal Dispossession Act, 2005.

7. I have given my anxious consideration to the facts of the case and legal intricacies involved in the case. The Lahore High Court in the case of Zahoor Ahmad Supra has held that the Illegal Dispossession Act has neither retrospective effect nor has its applicability to ordinary disputes rather it pertains to the land grabbers and land maphia. This view was, however, over-ruled in the latest judgment of the Supreme Court of Pakistan in the case of Rahim Tahir Vs. Ahmad Jan and two others (PLD 2007 SC 423), that the Illegal Dispossession Act, 2005 was promulgated in order to protect the lawful occupants of the property as against the unauthorized and illegal occupants, so that the unauthorized persons should not grab the land/property of others.

8. Perusal of the record in the present case reveals that the dispute between the parties is purely of a civil nature and much prior to the filing of the petition under the Illegal Dispossession Act, 2005, an FIR  No.  60  dated 21.4.2006 under Section 448 PPC had been lodged by the petitioner against the respondents which is still pending and will be decided on its own merits.

9. The record shows that a lawful agreement of sale is entered into between the petitioner and Respondent No. 1 and the major portion of the sale consideration has been received by the petitioner and a balance of Rs. 3,00,000/- is outstanding, which is purely a civil liability recoverable under the ordinary law of the land and the provisions of Illegal Dispossession Act are not applicable in the circumstances of the present case.

In view of the facts and circumstances narrated above, there is no force in this revision petition, which is dismissed. Petition dismissed.