2010 PLD 99 PESHAWAR-HIGH-COURT

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PESHAWAR DEVELOPMENT AUTHORITY VS AWAL KHAN 1990 MLD 815, Civil Procedure Code --Order VII of C.P.C. Plaint--11 , N.-W.F.P. Public Property (Removal of Encroachment) Act 1977--11 , N.-W.F.P. Public Property (Removal of Encroachment) Act 1977--13 , N.-W.F.P. Public Property (Removal of Encroachment) Act 1977--17 , N.-W.F.P. Public Property (Removal of Encroachment) Act 1977--3 , N.-W.F.P. Public Property (Removal of Encroachment) Rules 1981--RULE , Rejection of plaint--Term , Specific Relief Act 1877--42 , Specific Relief Act 1877--55 , Ss. 3, 11, 13 & 17---North-West Frontier Province Public Property (Removal of Encroachments) Rules, 1981, Rr.3 & 4---Specific Relief Act (I of 1877), Ss.42 & 55---Civil Procedure Code (V of 1908), O. VII, R.11---Cancellation of lease---Suit for declaration and mandatory injunction---Rejection of plaint---Plaintiff, who was lessee of a restaurant, owned by Authority, for a period of 15 years, his lease was cancelled---Authority filed application for rejection of plaint under O. VII. R.11, C.P.C. on the ground that suit property was a public property and lease in favour of the plaintiff having been cancelled, he was an unauthorized occupant of suit property---Authority had also asserted that jurisdiction of civil court was barred under S.11 of North-West Frontier Province Public Property (Removal of Encroachments) Act, 1977---Said application had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Section 3 of North-West Frontier Province Public Property (Removal of Encroachments) Act. 1977 had authorized Authority to direct an unauthorized occupant to vacate the public property and to remove the structure, if any, raised by said occupant on public property---Suit property, no doubt, was a public property; and it was also admitted fact that lease of suit property granted to the plaintiff had been cancelled, however, nothing was on record to show fulfilment of Second condition contained in S.3 of the Act i.e. the machinery provided under said Act had been set in motion for removal of encroachment and eviction of unauthorized occupant--Impugned order, whereby lease of the plaintiff was cancelled, neither contained the ingredient of S.3 of North-West Frontier Province Public Property (Removal of Encroachments) Act, 1977, nor could be termed as having been issued by Authorities mentioned in said section--Neither any proceedings having been initiated nor any order had been passed under the relevant provisions of North-West Frontier Province Public Property (Removal of Encroachments) Act, 1977, bar contained in S.11 of the Act could not be pressed into service---Judgments of two courts below being based on proper appreciation of, record and application of relevant law on the subject, did not call for interference by the High Court in its revisional jurisdiction.