PLJ 2000 Lahore 916

Present: zafar pasha chaudhry, J. MUHAMMAD and 2 others-Petitioners

versus

KHYZER HAYAT and 4 others-Repsondents

W.P. No. 21584 of 1997, decided on 6.5.1999.

Criminal Procedure Code, 1898 (V of 1898)--

—Ss. 133, 138 & 139-Constitution of Pakistan (1973), Art. 199--Encroachment of public path and raising constructions thereon illegally-- Allegations against petitioner-Appointment of jury by Magistrate and passing of orders for removal of illegal constructions before submission of report of jury-Departure from procedure laid down in S. 138 Cr.P.C.--Constitutional petition-Maintainability-Right to raise construction is civil right which has to be determined after recordng of evidence and civil Court is competent forum for purpose—Parties have already gone to civil Court-Words as used in Chapter X of Public Nuisance clearly show that any order passed by Magistrate U/S. 133 or under any succeeding section in chapter is tentative in nature and same is always subject to ultimate adjudication of question of right of parties by civil Court-There is material available showing that construction on property exists for the last quite many years and obstruction as alleged by Respondent No. 1 in application is not of nature where proceedings U/S. 133 Cr.P.C. would readily be attrated-Since disputed question of fact is involved and no inquiry can be undertaken in writ petition, proper forum is civil Court where parties have already gone-Held: Fact in issue in between parties will be adjudicated upon by civil Court after correcting relevant evidence and whatever order is passed by Civil Court will have prevelance— Petition disposed of with above observations. [Pp. 918 & 919] A, B, C & D

Rana Abdul Mqjeed, Advocate for Petitioners.

Mr. Nazir Ahmed Qureshi, Advocate for Respondent No. 1.

Date of hearing: 6.5.1999.

order

This Writ Petition has been filed assailing the order dated 22.3.1997 passed by Assistant Commissioner Tehsil Piplan District Mianwali, on an application moved by Khizar Hayat Respondent No. 1, U/S. 133 Cr.P.C. on 19.12.1995 and also the order dated 27.8.1997 passed by learned Additional Sessions Judge, Mianwali whereby the petitioner's revision petition against the above said order of the Assistant Commissioner was dismissed. It is stated inter alia that in the application the Respondent No. 1 had alleged that the petitioner has encroached upon the public path and also raised constructions thereon illegally. The application was resisted by the petitioner, on which a jury was appointed with the direction to submit its report within fifteen days. Before the report was submitted, proceedings were stayed by the learned Additional Sessions Judge on 24.7.1996 but inspite of the same on 22.3.1997 the learned Magistrate passed the impugned order directing the petitioner to remove the illegal constructions. The main ground urged in the petition is that the procedure prescribed U/S. 138 Cr.P.C. was not adopted and before the jury could submit its report the order was passed against the petitioner. As the claim of the Respondent No. 1 had been denied, it was incumbant upon the Magistrate to have appointed a jury and only after the receipt of its verdict and also holding an enquiry as envisaged U/S. 138 Cr.P.C., the order could have been passed. It was also imparative on the learned Magistrate to have passed a conditional order which was also not done. It is further argued that the constructions on the premises exist for the last more than 15/20 years which has also been verified by the local commission appointed by this Court. Further that no construction has been raised unauthorisedly by the petitioner, therefore, no proceedings could be initiated U/S. 138 Cr.P.C. In support of his contention the learned counsel has placed reliance on case titled: "Azam Khan and others vs. The State" (1989 P.Cr.L.J. 2286) and "Allah Dad vs. Abdul Karim", (1972 P.Cr.L.J. 680).

2. That the petition has been resisted by the Respondent No. 1 on he ground that the petitioners have also instituted a civil suit seeking a declaration that etitioners construction is not unauthorised and no public path exists as claimed by the respondent over the said land. The Respondent No. 1 alongwith other ten respondents of the locality have prayed to be impleaded as a party. The Civil suit is still pending adjudication before the competent Civil Court. It has been further pleaded that the two Courts below i.e. learned Magistrate as well as learned Additional Sessions Judge, have decided the case against the petitioners, therefore, concurrent findings recorded by both the Courts below may not be interferred with.

3. Arguments heard and record perused. The main ground urged by the petitioners is that the construction exist on the premises for the last more than 15/20 years and in that behalf he has referred to the report of local commission appointed by this Court, according to which the construction appears to be old one and may be about 15 years old. The report has been disputed by the respondent. The fact remains that the right to raise constructions is a Civil right which has to be determined after recording of the evidence and Civil Court is the competent forum for that purpose. The parties have already gone to Civil Court. The impression of the petitioners that the proceeding cannot be challanged as laid down Under Section 133(2)
Cr.P.C:

"No order duly made by a Magistrate under this section shall be called in question in any Civil Court."

It means that if the proceedings have been taken up competently by a Magistrate U/S. 133 Cr.P.C., the same cannot be challanged and as such a protection has been provided to the orders passed by the Magistrates but it does not mean that if a civil right of a party has to be determined, the jurisdiction of Civil Courts has been barred. The civil Court is a Court of plenary jurisdiction and any dispute of civil nature is within the cognizance and jurisdiction of Civil Court. The words as used in Chapter X of the Public Nuisances clearly show that any order passed by the Magistrate U/S. 133 or under any succeeding section in the Chapter is tentative in nature and same is always subject to ultimate adjudication of question of right of the parties by the Civil Court. It has been clearly laid down Under Section 139-A(2) Cr.P.C. as follows:such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require."

Thus it becomes abonduntiy clear that if the dispute arises with regard to the determination of a right the same would be adjudicated upon by Civil Court and the same will have prevalence over any tentative order passed by the Magistrate U/S. 133 Cr.P.C. or any other succeeding section of this Chapter. The provisions of Section 133(2) or 134(2) Cr.P.C. as already observed are meant to provide a protection to the order passed by a Magistrate but does not mean that rights and liabilities of the parties cannot be adjudicated upon or determined by the Civil Court. The only rational interpretation to these provisions can be that the powers have been invested with the Magistrate to abate the nuisance or abstraction summarily to ensure peaceful enjoyment by the public of the various rights enumerated U/S. 133 Cr.P.C. This section is meant to provide immediate relief to an aggrieved person against the high-handedness of any individual. But if from the facts and circumstances, it emerges that the dispute relates to adjudication of rights pertaining to the property or other easement and for that prima facie there appear to be good reasons to believe, the matter ultimately be decided by the Civil Court, as in the instant case from the averment of the parties and also from the report submitted by the local commission, there is material available showing that the construction on the property exists for the last quite many years and obstruction as alleged by the Respondent No. 1 in the application is not of the nature where proceedings U/S. 133 Cr.P.C. would readily be attracted. Since the disputed question of fact is involved and no inquiry can be undertaken in the writ petition, the proper forum is a Civil Court where the parties have already gone. I am, therefore, not inclined to issue writ straight away declaring the orders passed by the learned Courts below as illegal or without lawful authority. However, the writ petition is disposed of with the observation that the fact in issue in between the parties will be adjudicated upon by the Civil Court after collecting relevant evidence and whatever order is passed by the Civil Court will have prevelance. The Civil Court is also competent to regulate the interim user by way of interim injunction. This writ petition is disposed of with the above observations.

(B.T.) Petition disposed.