Abid Niyyar etc Vs Ghulam Kibriya and others

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) W.P. No. 1321/2024

Abid Niyyar and others.

(Petitioner/s)

VS

Ghulam Kibriya and others.

(Respondent/s)

Present: Hafiz Muhammad Amjad, Advocate, for petitioners.

Malik Amjad Inayat, learned Additional Advocate General, for official respondents.

Chaudhry Muhammad Younas, Advocate, for respondents.

Date of hearing: 26.01.2026

JUDGMENT

AURANGZEB, J.- Through the instant writ petition, the petitioner has prayed as under.

“It is therefore most humbly prayed that on acceptance of instant writ petition, the impugned judgments/orders dated 12.11.2024 and 01.03.2024 passed by learned Consumer Court Haripur may graciously set aside being without lawful jurisdiction, unwarranted at law and facts, illegal, unlawful, capricious and against the norms of justice. Any other proceedings conducted and mutation attested on the basis of impugned judgments/orders also be cancelled. Any other relief

deems appropriate may also be granted in favour of petitioners.”

2.Precisely stated, the facts giving rise to the present writ petition are that respondents Nos. 1 to 5 initially filed Complaint No. 654/CC before the learned Consumer Court, Haripur, seeking removal of alleged encroachment. During the pendency of the said complaint, petitioners Nos. 1 and 3 were impleaded as parties in the array of respondents. Respondents Nos.

6, 7, 13, and 14 submitted their replies to the complaint, whereas petitioners Nos. 1 and 3 filed an application for their impleadment along with a request for dismissal of the complaint, to which replications were filed by respondents Nos. 1 to 5 (complainants).

During the course of proceedings, a written compromise was produced before the learned Consumer Court, whereupon statements of the parties were recorded, and the matter was disposed of on the basis of compromise vide order/judgment dated 01.03.2024. Subsequently, respondent No. 1 instituted another Complaint No. 109/CC before the learned Consumer Court, Haripur, seeking entry of mutation/registry. In the said complaint, petitioners Nos. 1 and 3 were again impleaded as parties, who, in turn, filed an application for rejection of the complaint,

also seeking setting aside of the earlier order dated 01.03.2024 and cancellation of the compromise.

Thereafter, the learned Consumer Court appointed a Commissioner for spot inspection, who submitted his report before the Court. Upon consideration of the material on record, the learned Consumer Court ultimately disposed of Complaint No. 109/CC vide order/judgment dated 12.11.2024. Feeling aggrieved by the said order/judgment, the petitioners have approached this Court through the instant constitutional petition.

3.Arguments advanced by the learned

counsel for the parties, as well as the learned Assistant Advocate General, have been heard, and the record has been carefully perused.

4.The record reveals that the dispute in question pertains to the widening of a public pathway, which was initially resolved through a Jirga and subsequently formalized by the learned Consumer Court. The record further reflects that respondents Nos. 1 to 5 had earlier instituted Complaint No.

654/CC seeking removal of encroachment. The said complaint was ultimately disposed of on the basis of a lawful compromise vide order/judgment dated

01.03.2024, the relevant portion whereof reads as under;

“Complainants with his counsel namely Mr. Sheikh Abid Ali, Advocate present. Respondents present. Witness Tehsildar, Haripur namely Mr. Muhammad Jamshed Khan present.

At the very outset both the parties informed the court that matter between the parties has been resolved through an ADR by the intervention of this Court. In this respect the joint statement recorded in the court and placed on file and also taken signatures of all the parties who present in the court today. As per statements between the parties matter has been settled on following terms and conditions;

1.Mst Menaz Bibi complainant No. 5 will transfer 8 Marlas 67 points from Khasra No. 748 situated at village Qaziyan, Haripur through TMA, Haripur for path of public at large which will be the ownership of TMA. Haripur.

2.Malik Muhammad Hafeez, Respondent No. 11 and Malik Aurangzeb. Malik Iqbal, Malik Shamraiz, Malik Shafique and. Malik Zubair owners in Khasra No. 748 of village Qaziyan will transfer area measuring 6 Marlas and 67 Points for the public path for use of public at large through TMA, Haripur, and the ownership of path will be exclusively of TMA, Haripur.

3.The total area/land to be transferred i.e. 15 Marla 34 points and the width of public path will be 11 feet and length shall be 400 feet which

shall be from plot of Muhammad Hanif up to corner of plot of Mumtaz.

In view of above development, since the matter between the parties has been patched up. Respondent No. 1 and 2 are directed to issue NOC for the transfer of above mentioned land for public path. Therefore. there is nothing left to proceed further in this complaint, this complainant stands disposed off in above terms and conditions”. Subsequent to the above settlement, respondent No.1, namely Ghulam Kibriya, filed another Complaint No.109/CC before the learned Consumer Court, seeking entry of

mutation/registry of the land. During the proceedings of the said complaint, petitioners Nos.1 and 2 appeared and submitted an application for their impleadment as respondents, which was not objected to by the complainant, and accordingly, they were impleaded.

5.Thereafter, the said petitioners moved an application seeking dismissal of the complaint, inter alia, on the grounds that the matter had already been conclusively settled through a Jirga conducted by the Tehsildar, Haripur, and formalized by the Consumer Court, whereby it was decided that the public pathway would be widened from 5 feet to 11 feet. It was further contended that, in pursuance of the said settlement, Mst. Menaz

Bibi had agreed to donate 0.067 Marla and Malik Muhammad Hafeez had agreed to donate 6.67 Marlas of land, forming part of the total area of 15.34 Marlas, which was to be transferred in the name of TMA as a donation for public use in the name of Almighty Allah. It was also agreed that no party would be authorized to interfere with the said public pathway.

6.It was further asserted that neither the compromise nor the joint statement recorded before the Court made any mention of demarcation or pointation of land, and that the only agreed term was the widening of the existing pathway from 5 feet to 11 feet. It was, therefore, contended that the subsequent application filed by the complainant seeking demarcation was contrary to the settled terms and amounted to re-opening a concluded matter. The petitioners further pointed out that the complainant had previously approached the Revenue Authorities for similar relief regarding demarcation of the same path in Khasra No.748, which applications had already been dismissed by the Court of ADC, Hazara Division, and that a review thereof was pending before the Senior Member, Board of Revenue (SMBR), Khyber

Pakhtunkhwa. On this premise, it was contended that the complainant was pursuing parallel remedies before multiple forums, which was not permissible in law.

7.The said application was opposed by the complainant, and after hearing arguments from both sides, the learned Consumer Court disposed of the complaint vide impugned order/judgment dated 12.11.2024, the operative portion whereof reads as under:

“8. Factually speaking, the dispute revolves around a previously settled agreement regarding the widening of a public path, initially decided by a Jirga and formalized in Court. The complainant, Ghulam Kibriya, seeks further actions related to land demarcation, which the respondents argue is beyond the scope of the original settlement. This additional request has been challenged due to concerns about its legality and redundancy, given previous dismissals by the Court and the matter's pending review by the SMBR, KРК.

9.It appears from the above discussion that the original agreement was clear: the pathway should be widened from 5 feet to 11 feet, with specific land donations formalized and registered. There were no mentions of a detailed demarcation requirement in the initial settlement, Therefore;

1.The original decision, endorsed by the Court and settled through the Jirga, is upheld.

2.Additional demands by the complainant, which are not specified in the Court's prior decision, are dismissed.

3.Pending the review by SMBR, any other proceedings related to similar demands by the complainant be paused to avoid inconsistent rulings.

4.The Court enforces the original decision as the respondents are found to be delaying their obligations, specifically regarding the demolition and widening of the pathway.

10.The Conclusion and crux thus is as follows:

Additional demarcation request by Ghulam Kibriya, as it contradicts the original settlement terms and Court decision stands dismissed.

The original agreement, ensuring the path widening without Consumer further delay must be complied with.

The SMBR review (if any) to resolve any outstanding disputes regarding previous applications for similar relief shall be awaited.

The initial judicial settlement is reported and must be adhered to avoid legal redundancy, and ensures compliance with established agreements.

with these directions, this complaint is disposed of accordingly. File be sent to Record Room after its necessary completion and compilation.

8.The pivotal question which calls for determination in the present petition is whether the learned Consumer Court possessed lawful jurisdiction to entertain and adjudicate a dispute which essentially

pertained to demarcation of land and widening of a public pathway, and whether the impugned proceedings and order passed therein fall within the statutory ambit of the Khyber Pakhtunkhwa Consumers Protection Act, 1997.

9.Before adverting to the merits of the controversy, it is imperative to examine the scheme, object and scope of the ibid Act. The Consumers Protection Act, 1997 was enacted with a specific and limited purpose, namely, to protect consumers from unfair trade practices, defective products, deficient services and exploitation at the hands of manufacturers, suppliers and service providers, and to provide a summary and efficacious forum for redressal of such grievances. The jurisdiction of the Consumer Courts is thus statutory, circumscribed and cannot be expanded beyond what is expressly or impliedly provided under the Act. The Preamble of the Khyber Pakhtunkhwa Consumers Protection Act, 1997 reads verbatim as under:

“WHEREAS it is expedient to provide for healthy growth of fair commercial practices, the promotion and protection of legitimate interests of consumers and speedy redressal of their complaints and matters arising out of or connected therewith.”

A bare reading of the Preamble leaves no manner of doubt that the legislative intent behind the Act is confined to matters arising out of consumer transactions involving goods and services and does not extend to disputes of civil or revenue nature, such as title, possession, demarcation, pointation or right of way, which are governed by separate substantive and procedural laws.

10.The Act further defines key expressions which delineate the scope of its applicability. A “consumer” is defined as a person who purchases goods or hires or avails services for consideration. A “complaint” under the Act relates to allegations concerning unfair trade practices, defect in goods, deficiency in services, charging of excessive price or sale of hazardous goods. The expressions “product”, “services”, “deficiency”, and “manufacturer” are all interlinked with commercial transactions and contractual obligations between a consumer and a supplier or service provider. None of these definitions, either expressly or by necessary implication, encompass disputes relating to demarcation of land, widening of pathways, transfer of land for public use, or enforcement of revenue records.

11.Turning to the facts of the present case, the record unequivocally reflects that the dispute revolves around the widening of a public pathway situated in Khasra No.748, village Qaziyan, Haripur.

The matter was initially resolved through a Jirga conducted with the participation of the Tehsildar, Haripur, and subsequently formalized through a compromise recorded by the learned Consumer Court in Complaint No.654/CC vide judgment dated 01.03.2024. The compromise clearly stipulated that specific portions of land would be transferred to TMA, Haripur, as a donation for public use, and that the width of the public path would be increased from 5 feet to 11 feet. The compromise was comprehensive, unambiguous and conclusive in nature.

12.It is significant to note that neither the joint statement of the parties nor the compromise order contained any stipulation regarding demarcation or pointation of land. The sole subject matter of agreement was the widening of the existing pathway and transfer of land in favour of TMA for public use.

13.Subsequently, respondent No.1 initiated Complaint No.109/CC seeking mutation and registry of the land, which again squarely falls within the domain of revenue authorities. During the pendency of

the said complaint, the complainant further sought demarcation of land, a relief which is purely revenue- oriented and governed by the Land Revenue Act and rules framed thereunder. The petitioners rightly objected to the maintainability of the complaint.

14.The record further reveals that the complainant had earlier approached the Revenue Authorities for demarcation of the same land, which applications were dismissed by the Court of ADC, Hazara Division, and a review petition was pending before the Senior Member, Board of Revenue, Khyber Pakhtunkhwa. The institution of parallel proceedings before different forums for the same relief is impermissible in law and amounts to abuse of process of Court.

15.Despite the above factual and legal impediments, the learned Consumer Court proceeded to entertain the complaint and passed the impugned order dated 12.11.2024. Although the learned Consumer Court ultimately dismissed the request for demarcation, yet the very assumption of jurisdiction and adjudication of a dispute relating to land demarcation and enforcement of revenue obligations was beyond its lawful authority. Jurisdiction is not determined by the eventual outcome of a case, but by

the nature of the dispute and the relief sought at the time of institution.

16.It is a settled principle of law that where a statute confers jurisdiction upon a special forum, such jurisdiction must be exercised strictly within the four corners of the statute. A Consumer Court cannot assume the role of a Civil Court or Revenue Court, nor can it adjudicate disputes involving title, demarcation, mutation or right of way, even if such disputes are incidentally connected with a prior compromise recorded before it. In the case of “DHL Pakistan Pvt.

Ltd. Vs. Muhammad Imtiaz Siddiqui” reported as 2013 MLD 1530 it has been held that “Civil Procedure Code not applicable. Consumer Courts are Special Tribunals that have been constituted under the Punjab Consumer Protection Act, 2005 which is special dispensation, provisions of the Civil Procedure Code are inapplicable thereto” In the case of “FESCO and others Vs. Sh. Jamil Ahmad” reported as 2016 CLC 1104 it has been held that “Jurisdiction of Consumer Court is restricted to the extent of defective product or service for which a consumer can file a claim to recover damages against the manufacturer or service provider. Determination of civil rights and liabilities falls within the general jurisdiction of civil court under

section 9 of Code of Civil procedure. Consumer Court has no jurisdiction to issue any injunction in electricity matters”.

17.The learned Consumer Court, by

entertaining a complaint relating to demarcation and mutation, transgressed the limits of its statutory jurisdiction. Such an exercise amounts to coram non judice and renders the proceedings vulnerable in the eyes of law. Matters of demarcation require technical inquiry, field measurement, examination of revenue records and expertise of revenue officials, which fall exclusively within the domain of the Revenue Authorities.

18.It is a settled principle of law that the consent, acquiescence or concession of the parties can neither confer jurisdiction upon a Court or Tribunal nor take away jurisdiction where it is expressly conferred or barred by statute, as jurisdiction flows solely from law and not from the agreement or conduct of litigants; it is, therefore, the bounden and mandatory duty of every Court or Tribunal to examine, at the earliest possible stage, the maintainability of proceedings and the question of its jurisdiction, even in the absence of any objection by the parties, since jurisdiction goes to the very root of the matter and

strikes at the competence of the forum to adjudicate the lis, and such an issue cannot be bypassed, overlooked or cured on the basis of a concession, waiver or silence of a party or his learned counsel, for no amount of consent or estoppel can validate proceedings which are inherently without jurisdiction, and any order passed in excess or absence of jurisdiction is coram non judice, void and unenforceable in the eyes of law. In the case of “Faqir Muhammad vs. Khursheed Bibi” reported as 2024 SCMR 107 the Hon’ble Apex Court has held that “Parties cannot, by mutual consent, take away the jurisdiction vested in any Court of law, nor can they confer jurisdiction to any Court not vested in it by law” Similarly, in the case of “Muhammad Salman Vs. Naveed Anjum” reported as 2021 SCMR 1675 it has been held that “No jurisdiction could be conferred on the Court by the consent of the parties unless the jurisdiction was conferred on it by the constitution or by or under any law”. Likewise, in the case of “Federal Government Employees Housing

Foundation (FGEHF), Islamabad vs. Malik Ghulam Musfata” reported as 2021 SCMR 201 it has been held that “Jurisdiction on court could not be confer red even by consent ; unless it was so confer red by or

under the Constitution and or law”. In the case of “Administrator, Thal Development through FACO Bhakkar and others Vs. Ali Muhammad” reported as 2012 SCMR 730 it has been held that “Consent of parties could neither confer nor take away jurisdiction of a Court/Tribunal unless so conferred or barred by law. Bounden duty of every Court/Tribunal would be to examine issue of maintainability of suit or bar of its jurisdiction at the earliest opportunity. Court/Tribunal could not bypass such issue on mere concession of a party or his counsel”

19.In view of the foregoing discussion, it is held that the learned Consumer Court lacked lawful jurisdiction to entertain and adjudicate the complaint relating to demarcation of land and widening of a public pathway, which was neither a consumer dispute nor fell within the ambit of the Khyber Pakhtunkhwa Consumers Protection Act, 1997; consequently, the impugned order/judgment dated 12.11.2024, passed by the learned Consumer Court, having been rendered without jurisdiction, is hereby set aside, and the complaint is declared to be not maintainable, leaving the parties at liberty to avail such remedies as may be

available to them under the law before the competent forum.

Announced

Tahir Saleem

JUDGE