efficacy of the remedies

By

Mohammad Zeb Khan

Dirctor Instructions

K.P Judicial Academy

SCHEME OF THE TALK

Scheme of the Talk

Duration 60 minutes

Target Audience Majority Freshly promoted Additional Sessions Judges

Efficacy of Illegal Dispossession Act, 2005

Expert

Practical Problems SOLUTIONS-- Case Laws

Over view of the Law Understand its mechanics---NOVICE

The Illegal Dispossession Act, 2005

An Act to curb the activities of the property grabbers

WHEREAS it is expedient to protect the lawful owners and occupiers ofimmovable properties from their illegal or forcible dispossessiontherefrom by the property grabbers;

Promulgated on 25th July 2005Preamble & Purpose Clause

It is hereby enacted as follows:-1. Short title, extent and commencement.—(1) This Act may be called the illegal Dispossession Act, 2005(2) It extends to the whole of Pakistan.(3) It shall come into force at once.

9. Application of Code.— Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (v of 1898), shall apply to proceedings under this Act.

2. Definitions.—

(a)" Court": Court of Sessions

(b)“Code” : Criminal Procedure Code.

(c) “Occupier” a person who is in lawful possession of a property;

(d) “Owner” a person actually owns the property at the time of his dispossession, otherwise than through a process of law,

(e) “Property” means immovable property.

SOLITARY SUBSTANTIVE PROVISION OF THE ACT

Section 3: Prevention of illegal possession of property, etc ---Definition of the offence 3(1) The Entry

into

upon

any property to

1. Dispossess

2. grab

3. control

4. occupy

the property from its

1. owner

2. occupier

Penalty prescribed 3(2) Who contravenes it then

1. imprisoned up to 10 years

2. and with fine

3. and the victim be compensated u/s 544A CrPC

This punishment shall not prejudice any other punishment which he may be liable

under any other law for the time being in force.

Revival of the possess in favour

of complainant.

8 May (discretionary with Court)

Direct

accused, or

any person claiming through accused

RESTORATION OF POSSESSION

In case of resistance call for SHO

Phrase Dictionary meaning

Dispossess to take (especially property) away from them

Grab to seize suddenly and often with violence

Control the place where something is checked •

Occupy to enter and take possession of (a building, etc) often by force and without authority

Section 4: Cognizance of Offence:1. Court of Sessions on a complaint.2. Offence of section 3 would be

a. Non-cognizableb. Court can direct arrest of accused.

PROCEDURE TO DECIDE THE COMPLAINT.

Investigation 5 IDA: ComplaintOfficer-in-charge of a Police Station

To:1. Investigate2. within 15 days (Time may be extended).

Procedure of Trial 5(2): Court shall

•Proceed day to day

•Decide it within sixty days

•Adjournment, if required should not be more than seven days

POWER TO PASS INTERIM ORDERS DURING THE PENDENCY

OF THE COMPLAINTNature of the

Order

Necessary Ingredients Mode of enforcement

Attachment

of property

Section 6

Satisfaction:

None of the persons in

possession before

commission of the offence

Attach property till final decision.

Court should supervise attachment

Evicting the

Respondent

Section 7

Satisfaction:

Prima facie Respondent not

in lawful possession.

Direct to put the complainant in

possession.

In case Respondent(s) not comply:

1. Take steps for ensuring compliance.

2. Authorize Officer or Official to take

possession

He can take help from SHO;

If SHO not cooperate then it would

be misconduct & Court to proceed

against him departmentally.

1. CAN AN IDA COMPLAINT LIE PARALLEL TO OTHER REMEDIES, FORINSTANCE SUIT FOR POSSESSION U/S 8, 9 SRA, COMPLAINT U/S 145 CRPC, PROCEEDINGS U/S 448 PPC?

HAJI TAJ DIN AND ANOTHER VERSUS SH. MUJIB ULLAH AND ANOTHER[2009 P CR. L J 864, LAHORE]

IF YES, WHAT WOULD BE THE IMPACT OF THESE PROCEEDINGS UPONEACH OTHERS?

HOW IT WOULD RECONCILE WITH THE DOCTRINE OF DOUBLEJEOPARDY?

2. IS IDA RETROSPECTIVE IN ITS APPLICATION?

3. CAN THE COURT OF SESSIONS GRANT INTERIM RELIEF

U/S 7 IDA ON THE DAY THE COMPLAINT WAS LODGED?

IF NO, WHAT IS THE STAGE OF GRANT OF INTERIM RELIEF?

WHEN TRIAL IN SUCH COMPLAINT COMMENCES?

4. IS IDA RETRICTED IN ITS APPLICATION TO LAND

GRABBERS?

5. HOW TO APPRAISE THE EVIDENCE IN SUCH COMPLAINTS;

I. Doctrine of preponderance of evidence

II. Principle of beyond reasonable doubt

Feroze Golawal and others vs Viraf Daroga & others case (2014 PCrLJ 1150)

Determination as to title of the property, was not the function or the domanin of the criminal court ---Court was not competent to give any findings in regard to the authenticity of a document in the matters of IDA

Muhammad Hayat khan vs The State [2014 YLR 390]

6. IN A COMPLAINT UNDER IDA WHETHER THE STATEMENT

OF COMPLAINANT U/S 200 CRPC MANDATORY?

IF NO, WHY?

2010 PCrLJ 422 Kar

WHETHER AN OFFENCE U/S 3 IDA WOULD BE

CONSTITUTED WHEN AT THE OUTSET THE POSSESSION WAS

DELIVERED BY THE COMPLAINANT AS PER HIS CONSENT

BUT LATER ON THE POSSESSION BECAME HOSTILE?

Mst. Khatoon vs Muhammad Saleem & another case

2010 PCrLJ 1046

7. CAN AN IDA COMPLAINT BE INVESTIGATED BY A JUSTICE OF PEACE OR BY A MAGISTRATE?

8. WHETHER THE OFFENCE U/S 3 IDA BAILABLE & NON-COGNIZABLE?

9. HOW THE ORDERS OF REPOSSESSION IS TO BE

ENFORCED?

WHETHER ACQUIESCENCE OF THE COMPLAINT FOR A

REASONABLE TIME, WOULD DIVEST HIM OF HIS RIGHT TO

LODGE THE IDA COMPLAINT.

MRS. FATIMA THROUGH ATTORNEY VS IMAM ZADA & ANOTHER [2010 PCRLJ 1265]

Can a complaint of ida be dismissed u/s 203 crpc?

Hasan vs Ghulam Hussain & 9 others case; 2014 YLR 1791 Sindh

Waheed Ahmed Siddique vs Additional Sessions Judge & others

2014 MLD 1513 (Lah)

LETUS

ENDEAVOUR

TO SEARCH FOR FLAWS OF IDA

1. WHAT IS THE TRUE NATURE OF IDA CIVIL, REVENUE, CRIMINAL, QUASI CIVIL OR CRIMINAL?

2. IDA DOESNOT DEFINES, 'LAND GRABBERS'; WHAT CONSEQUENCE IT SHALL ENSUE?

3. IN ABSENCE OF A PROVISION PRESCRIBING FORUM OF APPEAL/REVISION IN COMPLAINT UNDER IDA, WHETHER APPEAL SHALL LIE OR WRIT PETITION?

Procedure in IDA is not self explanatory

Where the law prescribes a thing to be done in a specific manner it ought to be done in that manner or not done at all.

A.P. LAND GRABBING (PROHIBITION) ACT, 1982 BACKGROUND1. This Act is meant mainly to arrest and curb the unlawful activity of rabbing

Government land, a local authority, a religious or Charitable Institution or Endowment including Wakf or any other private property,either individually or in groups either by force or decrepit or otherwise.

2. The Act came into force w.e.f. 06-9-1982.3. A land grabber is a person or group of persons who commit land grabbing or includes

any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon or who collects from the occupiers of such lands rent, compensation and other charges by criminal intimidation or who abets the doing of any of the above mentioned acts and also includes successors in interest.

4. Land Grabbing means every activity of grabbing of any land belonging to Government, local authority, religious or Charitable Institution or Endowment including wakf or any other private person, by a person or group of persons without any lawful entitlement and with a view to possess illegally or enter into or create illegal tenancies or lease and licenses agreements in respect of such lands, or to construct unauthorized structures thereon for sale or hire or give such lands to any person on rental or lease and license basis for construction or use and occupation of unauthorized structures and the term “to grab land” shall be construed accordingly (Section 2).

5. Under Section 3 of the Act, land grabbing any form and any activity concerned therewith is an offence punishable under the Act.

6. Land Grabbing in any of the above form, on conviction is punishable with imprisonment for a term which shall not be less than six months, but which may extend to 5 years and with fine upto five thousand rupees (Section 4 & 5).

7. For speedy enquiry and trial of the land grabbing cases, the Government constitute Special Courts consisting of a Chairman (A Judge of High Court or District Judge) and two Judicial Members and two Revenue Members (Section 7). The Special Court may either suo-motu or an application take cognizance of and try every land grabbing case with respect to the ownership and title to or lawful possession of the land grabbed. The decision of the Special Court shall be final. For this purpose, the Special Court is deemed to be a Civil Court with all its powers. The Special Court is also competent to award compensation by the land grabber to the rightful owner (Section 8).

8. The Competent Authority appointed by Government or the Revenue Divisional Officer concerned has to implement the orders of the Special Court by restoring possession to the rightful owner if the land cannot be restored (for any reason), he may either take possession; and keep it under its control or provide for its proper management till it is duly restored to the rightful owner or authority (Section 9).

9. Protection of persons acting under the Act: No suit, prosecution or other legal proceedings shall be against the competent authority or any Government Officer for any thing done in good faith or intended to be done under the Act or the rules there under (Section 14).