Mujahid Ali Shah etc Vs M. Zohaib etc

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) RFA No. 'Al202l with CM No. 88-Al202t Mujahid Ali Shah and another Appellant/s v/s

Muhammad Zohaib

Respondent/s

Present: Mr. Asad Jan Durrani, Advocate, for the appellants.

Muhamma d Zahid, Advocate, for respondent.

Date of hearing: 24.04.2025

JUDGMENT

SADIO ALI, h Through the instant appeal, the appellants have challenged the order & judgment of learned Judge Consumer Court, Haripur dated 19.02.2021 whereby complainant filed by respondent was accePted.

Z. Precisely, the facts leading to the filing of the instant appeal are that the respondent, namely Muhammad Zohaib, filed a complaint before the Judge, Consumer Court, Abbottabad, d stating that he had been issued a joint fee voucher for the months of February and March 2021 by the appellants. He was also aggrieved by the demand for transport charges amounting to Rs' 2,000 for

January 202I, asserting that the school remained closed due to Covid-l9 from 24th December to l8th January. The respondent prayed for directions to restrain the appellants from recovering the fee for March 2021 and the transport charges for January 2O2t until the reopening of schools. Notice of the complaint was issued to the appellants, who appeared before the Court and contested the claim by submitting a written reply. After hearing the arguments from both sides, the leamed trial Court accepted the respondent's complaint. The order and judgment passed by the learned trial Court have now been challenged by the appellants through the instant appeal.

3.Arguments of learned counsel for the parties heard and record perused with their valuable distance.

I. During the course of arguments, the primary contention raised by the learned counsel for the appellants was that the learned Judge, dlf Consumer Court, Haripur, lacked jurisdiction to adjudicate upon the present dispute. A careful perusal of the record reveals that the grievance of the respondent pertained to the collection of school

fee and transport charges by a private educational institution. Such subject matter exclusively falls within the regulatory domain of the Khyber Pakhtunkhwa Private Schools Regulatory Authority Act, 2017, which has been enacted to provide a comprehensive mechanism for the regulation, supervision, and monitoring of private schools in the province. The said statute, being a special law, specifically contemplates the redressal of grievances relating to fee structures, ancillary charges, and administrative affairs of private educational institutions.

5.It is a well-settled principle of law that when a special statute provides an exclusive forum and mechanism for redressal of certain disputes, the general jurisdiction of ordinary Courts and d Tribunals, including Consumer Courts, stands excluded.

5.It is also pertinent to mention that the Consumer Protection laws are designed to address consumer rights arising out of the sale, purchase, and provision of goods and services in ordinary commercial transactions. They do not encompass disputes falling under special regulatory regimes

like that governing private educational institutions.

Thus, the subject complaint filed by the respondent was not maintainable before the Consumer Court.

The proper and lawful course of action available to the respondent was to approach the competent authority constituted under the Khyber Pakhtunkhwa Private S chool s Regulatory Authority Act, 2017 , for the ventilation of his grievances. It is a well-established principle of statutory interpretation that in the event of a conflict between a special law and a general law, the provisions of the special law shall prevail. This doctrine, often referred to as generalio specialibus non derogant, means that a law enacted for a specific purpose, subject matter, or class of persons will take precedence over a general law that may apply to a J broader category. The rationale behind this principle is that the legislature, in enacting a special law, intended to address particular circumstances more precisely and in gteater detail, thereby implicitly excluding the application of the general law to the extent of any inconsistency. Courts have consistently upheld this rule to preserve the coherence and purpose of the special legislation' In the case of C( Reven vs.

Messrs Riaz Bottlers IPvt.) Ltd. (Now Lottee Akhtar Beveraees (Pvt.l Lld.l" reported as 2024 SCMR 684, the Hon'ble Apex Court has held that "according to the principle of harmonious interpretation, special law would take precedence oyer the general lqw". Likewise, in the case of reported as 2023 SCMR 273, it has been held that "wherever there ls a special and general law applicable to a certain matter, the special law will prevail"

Similarly, in the case of "Sved M[M!

Shah and others vs. Federal Investment Agencv und otlxers" reported as 2017 SCMR 1218 it has been held by the Hon'ble Apex Court that;

I

"(e) Interpretation of statutes--- ----Con/lict between two laws providing d/ dffirent punishments for the same offence--- Law providing greater punishment must relent in favour of the law ordaining the lesser punishment.

fi Interpretation of statute s--- ----'special lm,r,'---ConJlict between two special laws containing overriding clauses---When there were two special laws both of which contained overriding clauses, and there was ct conflict between them, generally the statute later in time would prevail over the statute prior in time---Said presumption, however, was not automatic, instead q host of other factors including the object, purpose and policy of both statutes and the legislature's intention, qs

expressed by the language employed therein, needed to be considered in order to determine which of the two special laws was to prevail".

Likewise, in the case of "Muhammad Mohsin Ghuman and others vs. Government of Puniab through Home Secretarv, Lahore and others" reported as 2013 SCMR 85 it has been held that;

"The proper way to construe q non obstante clause is first to ascertain the meaning of the enacting part on a fair construction of its words. The meaning of the enacting part which ,s so ascertained rs then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that that provision should prevoil despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any drt' inconsistency between the non obstante clause and another provision one ofthe objects ofsuch a clause ,s to indicate that it is the non obstante clause which would prevail over the other clauses. It does not, however, necessarily mean that there must be repugnoncy between the two provisions in all such cases. The principle underlying non obstante clause may be invoked only in the case of irreconcilable conflict".

7 In view of the foregoing discussion, it is manifest that the learned Judge, Consumer Court, Abbottabad, erred in assuming jurisdiction over a

matter that was statutorily reserved for determination by the Khyber Pakhtunkhwa Private Schools Regulatory Authority. The impugned judgment and order, therefore, ffia legally unsustainable and are liable to be set aside on the ground of lack of jurisdiction. The appellants have rightly assailed the said judgment through the instant appeal. Consequently, for the reasons recorded above, the instant appeal is allowed. The impugned judgment and order passed by the leamed Consumer Court, Abbottabad, are hereby set aside. The complaint filed by the respondent stands dismissed for want ofjurisdiction. However, the respondent shall be at liberty to seek appropriate remedy before the competent forum constituted under the Khyber Pakhtunkhwa Private Schools Regulatory Authority Act, 2017, if so advised and desired, in accordance with law.

Announced

JUdE