Muhammad Safdar Khan Vs Assiatant Commissioner Nawagai etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 1539-M/2025 with Interim Relief

Muhammad Sardar Khan Vs. The Assistant Commissioner Nawagai and others

Present: Mr. Zia ur Rahman, Advocate for petitioner. Syed Abdul Haq, Advocate for Respondent No. 4 to 6.

Mr. Haq Nawaz Khan, Additional Advocate General for official Respondents.

Date of hearing: 03.02.2026

JUDGMENT

Dr. Khurshid Iqbal, J.s

1.This judgment shall decide the legal question involved in the instant constitutional petition that whether during the pendency of ejectment proceedings before the learned Rent Controller, having lawful jurisdiction under the West Pakistan Urban Rent Restriction Ordinance, 1959, an Executive Magistrate / Assistant Commissioner, under the garb of the Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020, could lawfully assume parallel jurisdiction in the same dispute and pass an order directing eviction of a tenant. The question is of exceptional importance because it implicates the rule of law, the separation of executive and judicial functions, and the integrity of statutory fora specially created to adjudicate landlord–tenant disputes. If executive authorities are permitted to enter the field occupied by statutory tribunals and civil courts, the result is uncertainty, forum-shopping, multiplicity of proceedings, and a grave risk of dispossession without due process.

2.The petitioner entered into a tenancy agreement dated 14.08.2018 with respondent No.6 in respect of ten shops, situated in a market for a period of five years. During the subsistence of tenancy, respondent No.5, who is the son of respondent No.6, entered into an agreement to sell, on 16.10.2023 in respect of the said ten shops with one Zair Ullah and Zahir Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

Shah for a total consideration of Rs.13,000,000/- out of which an amount of Rs.6,000,000/- was allegedly paid, while the rest of the amount remained outstanding. Subsequently, the said shops were further transferred by them to respondent No.4 vide an unregistered sale deed dated 01.11.2023, for a consideration of Rs.14,000,000/-. These transactions, being disputed and resting upon unregistered instruments, raise questions of title and locus standi which are, by their very nature, triable only by a competent judicial forum on evidence. They cannot be conclusively determined through summary executive proceedings.

3.Meanwhile, upon expiry of the original tenancy period, the tenancy agreement between the petitioner and respondent No.6 was renewed on the same terms and conditions vide agreement dated 01.01.2024, for another period of five years at a monthly rent of Rs.1,500/- per shop with 10 % annual increase. After a year’s silence, in 2025, respondent No.4 lodged a private complaint under section 145 Cr.P.C. against the petitioner, whereupon the learned Judicial Magistrate, vide order dated 07.05.2025, initially attached the disputed property and issued notices to the concerned parties. Upon their appearance, the learned Magistrate, vide order dated 12.05.2025, disposed of the proceedings by directing the parties to approach the Civil Court for resolution of their dispute and restored possession of the shops to the petitioner / tenant till eviction by a competent forum. Thereafter, respondents No.4 and 5 jointly instituted two eviction petitions under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against the petitioner and another tenant before the learned Rent Controller / Civil Judge-II, Bajaur, on the grounds of non-payment of rent and personal need. During pendency of that petition, respondent No.5 also filed an application under Order I Rule 10 CPC, seeking his transposition in the array of defendants due to clash of interest, which remains pending. This background demonstrates that the dispute was already seized by a judicial forum, and the parties had already invoked the precise statutory mechanism prescribed for eviction.

4.Despite pendency of the said ejectment petitions, respondent No.4 submitted an application dated 05.05.2025, before respondent No.1 (Assistant Commissioner) seeking legal action against the petitioner and Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

another tenant, while respondent No.5 also filed a separate application along with an affidavit before the same authority against the petitioner / tenant and respondent No. 4. The learned respondent No.1 issued notices to the parties and thereafter obtained written consent only from respondents No.4 and 5 (vendee & vendor) and, by invoking section 3(2) of the Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020, referred the matter to saliseen / jirga members. Upon receipt of the verdict of the saliseen, the learned respondent No.1 dissented from the same and passed the impugned order dated 18.11.2025, whereby respondent No.4 was declared to be the bona fide owner of the shops and the petitioner and the other tenant were directed to vacate the premises within seven days, which constrained the petitioner to invoke the constitutional jurisdiction of this Court. The impugned order, in effect, seems to have accomplished eviction through executive fiat, bypassing the procedure mandated by the Rent Restriction Ordinance, 1959, and undermining the judicial process already underway.

5.Learned counsel for the parties were heard and the record was thoroughly perused.

6.It is an admitted fact that ejectment petitions under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 are pending between the parties before the learned Rent Controller filed prior to the applications by respondent No. 4 and 5 before the learned respondent No.

1.Section 13 of the said Ordinance provides that a landlord seeking eviction of a tenant shall apply to the Controller for an order directing the tenant to put the landlord in possession of the premises, while section 17 thereof regulates execution of such orders. The Rent Controller is, thus, a statutory forum of exclusive jurisdiction for adjudication of landlord– tenant disputes. This exclusivity reflects legislative intent, since eviction impacts possession, livelihood, and proprietary rights, and the Ordinance provides a comprehensive adjudicatory and executory framework that cannot be overridden through executive directions.

7.It is also equally necessary to address an exceptional and controlling feature of the case that this Court’s writ jurisdiction is invoked not to reappraise evidence or to adjudicate title, but to correct an apparent Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

excess of jurisdiction and a departure from the statutory scheme which threatens immediate dispossession. Where an executive authority acts without lawful authority, assumes a jurisdiction not vested in it, or passes an order with civil consequences in disregard of mandatory statutory conditions, the High Court is not only empowered but is duty-bound to intervene to preserve due process, prevent abuse of power, and protect the sanctity of judicial proceedings already pending before competent fora. The grant of interim relief in such circumstances is, therefore, justified because an eviction executed on the strength of an unlawful order would create irreversible prejudice, render the pending ejectment proceedings nugatory, and encourage parallel adjudication.

8.Section 2(d) of the Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020 defines ‘court’ which means a criminal court or a civil court, having original jurisdiction under any law for the time being in force, whereas Section 2(k) defines ‘referring authority’ which means the court or any other referring authority as provided under sub-section 2 of Sections 3 and 4 of the Act, respectively. Section 3(2) provides that the Deputy Commissioner or any other officer nominated by the Government may refer a civil dispute to ADR, while Section 3(1)(a) and (c), respectively, restricts such referral if any of the contesting parties do not agree for the ADR, and if there is an intricate question of law and fact. Read collectively, these provisions demonstrate that ADR is consensual, facilitative, and supplementary in nature, and does not constitute an alternative adjudicatory forum capable of supplanting special tribunals, nor does it authorize executive officers to adjudicate rights in rem, determine title, or order eviction.

9.Likewise, Section 4(2) of the same Act, dealing with criminal disputes, expressly provides that the Deputy Commissioner or the Dispute Resolution Council (constituted under the Khyber Pakhtunkhwa Police Act, 2017) may refer a criminal dispute to ADR before the Court has taken cognizance of the offence. The legislature has, thus, clearly manifested its intent that once judicial cognizance is taken, executive referral is barred. The controversy turns on the proper interpretation of section 3(2) in juxtaposition with section 4(2) which requires application of the doctrine Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

of harmonious construction. The Hon’ble Supreme Court of Pakistan in Elahi Cotton Mills Ltd. v. Federation of Pakistan, (PLD 1997 SC 582) held that a statute is to be read as a whole and one provision must be construed with reference to the other provisions so as to make a consistent enactment of the whole statute. Similarly, in Muhammad Anwar & others v. Mst. Ilyas Begum & others, (PLD 2013 SC 255), it has been held that while interpreting the provisions of a statute, the Court must avoid a construction which creates conflict between different provisions of the same enactment and should instead adopt such an interpretation which reconciles them and advances the object of the law. In the cited judgment, this principle has been applied while interpreting Order XVI Rule 1, C.P.C., wherein the Court observed that the provisions must be construed in light of their legislative purpose and that sub-rules (1) and (2) are to be read harmoniously so as to give effect to the scheme of the rule rather than defeating it

10.Sections 3 and 4 of the ADR Act, 2020 deal with the same subject, that is, referral of disputes to ADR either by the courts or executive authorities; however, Section 4(2) restricts such referral in criminal matters and that, too, at a stage prior to cognizance by a competent Court. If section 3(2) is construed to allow referral of civil disputes even after a competent civil court has taken cognizance, the result would be parallel proceedings, subordination of judicial authority to executive action and frustration of the statutory scheme. Such interpretation would offend the doctrine of purposive and harmonious construction and must, therefore, be avoided, by applying the said doctrine as has been done by the Hon’ble Apex Court in the aforementioned judgments. Section 3(2) must be read subject to the same implied restriction as contained in section 4(2), that once a competent court has taken cognizance of a dispute, the executive authority ceases to have jurisdiction to refer the same dispute to ADR. The silence of section 3(2) on this aspect, therefore, cannot be construed as legislative intent to permit parallel proceedings. This construction is further reinforced by the settled principle that a general statute does not override a special statute occupying the same field unless such intention is clear and unequivocal. In the present context, the Rent Restriction Ordinance constitutes a special law prescribing an exclusive mechanism Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

for eviction, which cannot be avoided through recourse to the ADR Act,

11.In the present case, ejectment petitions were already pending before the learned Rent Controller, who had taken cognizance of the dispute between the parties. Once the matter stood seized by a statutory judicial forum, the Assistant Commissioner was divested of jurisdiction to entertain the same controversy under section 3(2) of the ADR Act, 2020. Any contrary interpretation would enable litigants to circumvent ongoing court proceedings by resorting to an executive forum to obtain coercive relief, thereby neutralizing and rendering ineffective, the pending judicial process.

12.Another fatal defect in the impugned proceedings is absence of consent of the petitioner. Section 3(1)(a) of the Act makes consent of the parties a mandatory precondition for referral of a civil dispute to ADR. The term “parties” necessarily includes all disputants whose rights are to be affected. In the present case, eviction was sought against the petitioner, yet no consent was obtained from him. Consent was procured only from respondents No.4 and 5, which does not satisfy the statutory requirement and invalidates the entire proceedings. Rather, the impugned order travels beyond the scope of the ADR Act, 2020. Of more serious concern is the fact that the learned Assistant Commissioner not only discarded the verdict of the saliseen, mandatory in terms of section 15 of the Act, 2020, but also proceeded to declare respondent No.4 as bona fide owner of the shops and directed eviction of the petitioner through his own findings and suppositions. Neither section 3, nor does any other provision of the Act authorize an executive authority to adjudicate a question of title or to order eviction. Such matters fall within the exclusive domain of civil courts and the Rent Controller, respectively. The Hon’ble Supreme Court in case of Water and Sanitation Agency, Lahore vs Lottee Akhtar Beverages (pvt.) Ltd. Lahore, 2019 SCMR 1146) has held that parallel proceedings on the same cause of action before different fora are not permissible and amount to abuse of process of law. The initiation of ADR proceedings before the Assistant Commissioner during pendency of ejectment petitions before the Rent Controller, therefore, constitutes impermissible parallel adjudication Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

and an abuse of process of law. Additionally, the direction to vacate within seven days, without an executable eviction order under section 13 read with section 17 of the Ordinance, amounts to an attempt to dispossess without due process, which the law does not countenance.

13.The record further reflects that respondents No.4 and 5 claim title through unregistered sale and partition deeds, whereas respondent No.6, the undisputed original owner and landlord, was not afforded an opportunity of hearing. It also remains unexplained that if a valid partition had taken place, respondent No.6 would not have renewed the tenancy agreement with the petitioner on 01.01.2024. These questions involve serious disputes of fact and law which could only be resolved by a competent court in light of pro and contra evidence and not by a summary executive order. For the foregoing reasons, it is held that during the pendency of ejectment proceedings before the learned Rent Controller, the Assistant Commissioner had no lawful authority under section 3(2) of the Act, 2020 to entertain the dispute or to direct eviction of the petitioner. The impugned order is, therefore, without jurisdiction, and an order without jurisdiction is void, carries no legal sanctity, and cannot be allowed to produce civil consequences.

14.Another incidental question, apart from the legal question involved in the present petition, arising in the present case, concerns the extent of jurisdiction and the scope of functions of respondent No.1 in the light of sections 2(d) and 2(k) of the ADR Act, 2020, when read in juxtaposition with section 15 thereof. Section 2(d) defines “court” to mean a civil or criminal court having original jurisdiction under the law for the time being in force, whereas section 2(k) defines “referring authority” to include either a court or a Deputy Commissioner or any other officer nominated by the Provincial Government. On the other hand, section 15 of the Act expressly provides that where a dispute is resolved through Alternate Dispute Resolution, the saliseen shall record the settlement or render a written award, duly signed and witnessed by them and by the parties or their duly authorized representatives or attorneys, and shall submit the same to the Court, which alone is competent to pronounce judgment and pass a decree in terms thereof. Where the settlement or award relates only Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

to part of the dispute, the Court is required to pass an order to that extent and proceed to adjudicate upon the remaining controversy. In cases where the outcome of the ADR process is unclear, the Court may even seek clarification from the saliseen. Applying the above statutory framework to the facts of the present case, it is evident that after the award was rendered by the saliseen upon a reference made by respondent No.1, the said respondent was legally bound to transmit the award to the Court as defined under section 2(d) of the Act, which alone was competent under section 15 to pass a final or partial order thereon. The Act confers no authority upon the Deputy Commissioner or any other notified officer either to accept, reject, modify or substitute the award of the saliseen by assuming the role of a civil court. Under sections 3(2) and 4(2), the Deputy Commissioner is merely a referring authority at the initial stage. Even where the settlement or award is submitted before him, whether inadvertently or otherwise, it remains obligatory under the scheme of the Act that the same be transmitted to the competent court of original civil or criminal jurisdiction for appropriate orders, which, though not expressly stated in the Act, is clearly discernible from the overall scheme and legislative intent. In the entire statutory framework governing the culmination of ADR proceedings, no power is vested in the Deputy Commissioner to pass a decree or an order on the basis of the award of the saliseen. However, respondent No.1, in complete disregard of the mandatory command of section 15, assumed the jurisdiction of a civil court and proceeded to pass an order, even otherwise than on the basis of the award. Such assumption of jurisdiction is alien to the scheme of the Act and has resulted in multiplicity of litigation and reflects a colonial mode of dispensing justice, thereby frustrating the very object of the statute, which is to ensure inexpensive and expeditious justice. Moreover, this Court has already declared that the Deputy Commissioner concerned or any officer authorized by the Provincial Government, while acting under the ADR Act, 2020, functions only as a referring authority and cannot assume the role of a court of original jurisdiction, as held in W.P. No. 955-M/2024, titled Habib ur Rahman & another vs. Toor Gul & another. Consequently, it is held and declared that in matters governed by the ADR Act, 2020, the Deputy Commissioner or any other officer Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

authorized by the Provincial Government (but not the Assistant Commissioner, whose designation finds no mention in the Act, 2020) shall be confined to the role of referring authority, and upon receipt of an award or settlement from the saliseen, must transmit the same to the competent civil or criminal court for passing appropriate orders in accordance with section 15 of the Act. This declaration is necessary to prevent repetition of such jurisdictional transgressions and to ensure that ADR remains a facilitative process under judicial supervision, rather than an instrument for executive adjudication.

15.The proper course for respondent No.1 was either to direct the saliseen to submit its report before the competent forum in accordance with section 15 of the Act or, at the threshold, to examine the contents of the very application presented before him. And in view of the categorical disclosure therein regarding the pendency of an ejectment petition before the learned Rent Controller, respondent No.1 ought to have returned the applications to respondents No. 4 and 5 with the direction to present the same before the concerned learned Rent Controller for appropriate reference to the saliseen, who also falls within the definition of “referring authority” under section 2(k) of the Act. Respondent No.1 was not competent to assume cognizance of the matter. By entertaining the application and proceeding thereupon, respondent No.1 acted in excess of jurisdiction, which compelled the tenant to invoke the constitutional jurisdiction of this Court to seek redress against an adverse order passed against him, without affording him an adequate opportunity of hearing in accordance with the principles of natural justice. This is an additional exceptional reason warranting constitutional intervention: an order directing eviction, passed without lawful jurisdiction and without strict compliance with statutory preconditions, is a paradigmatic case for correction in writ jurisdiction, particularly where the consequence is immediate dispossession.

16.For the reasons recorded above, and legal principles referred, we answer the question for determination in negative. Consequently, the impugned order dated 18.11.2025 passed by respondent No.1 is hereby set aside. The respondents are restrained from dispossessing the petitioner Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din

from the disputed shops in pursuance of the said order unless an eviction order by the Rent Controller is passed. The learned Rent Controller shall proceed with the ejectment petitions strictly in accordance with law and without being influenced by the impugned order. The petition is allowed in the above terms with no order as to costs.

17.It is considered appropriate to transmit its copies to the Provincial Government through the Chief Secretary, Khyber Pakhtunkhwa, Peshawar, and Commissioner, Malakand Division with the direction that the same be circulated for guidance. A further copy of this judgment shall be sent to respondent No.1 through the office of the learned Additional Registrar of this Court. The purpose is preventive and corrective, so that executive authorities do not inadvertently assume judicial functions, and so that statutory fora are not undermined by parallel executive proceedings.

Announced.

03.02.2026 -sd-

JUDGE

-Sd-

JUDGE

Sikandar Hayat/* (D.B) Justice Dr. Khurshid Iqbal Justice Salah Ud Din