TMO Haripur VS Malik Abdul Rahim

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH.

JUDICIAL DEPARTMENT

Consumer Appeal. No.08-A/2022.

JUDGMENT

Date of Hearing 06.02.2023

Appellant (Chief officer etc) by Mr.Haq Nawaz Advocate.

Respondent (Malik Abdul Raheem) in person.

FAZAL SUBHAN, J:- Appellants, Chief Officer and Sanitary Inspector, Municipal Committee Khalabat Township, Haripur, have filed instant appeal against the judgment and order passed by the learned Sessions Judge/Judge Consumer Court, District Haripur, dated 15.12.2021 in complaint No.319/CC/2021, whereby the complaint of the respondent was allowed, directing the appellants/respondents therein, to relocate the dumping site to some area which could not affect the public or cause nuisance within one month from the date of passing of the order, filing which the appellants were to be convicted under section 16 of the Khyber

Pakhtunkhwa Consumer Protection Act, 1997, to one month RI and to fine of Rs.50,000/- and in default of payment of fine to further undergo ten days SI. It was further directed that the amount of fine shall also be recovered as arrears of land revenue.

2.Brief narrations made in the

complaint are that the respondents are the inhabitants of village Padahana, Tehsil & District Haripur, who are aggrieved of the dumping zone established by the appellants near village abadi, resulting environmental hazards and air pollution which further cause life threatening diseases. More so fire previously lit to the waste material caused damage to the crops for which a report was also lodged. That early a complainant was filed before the Deputy Commissioner, Haripur whereupon a commission was appointed on 06.08.22021 which was initially implemented but after three months, the TMA Khalabat again started dumping the garbage.

3.The learned Judge Consumer Court put the appellants on notice and as parties did not

opted to record evidence, hence after hearing both sides, the Court passed the impugned judgment.

4.At the outset, learned counsel for the appellants raised objection to the jurisdiction of learned consumer Court in the matter and submitted that the appellants are not providing any service to the respondents//locals of the area, and hence their dumping of waste in the area does not fall within the definition of “Services” as provided under section 2 (4) of the Khyber Pakhtunkhwa Consumer Protection Act, 1997 (Act 1997). He next submitted that the jurisdiction in the matter lies with the Tribunal established under section 22 of the Khyber Pakhtunkhwa Environmental Protection Act, 2014, (Act, 2014) and that as per Section 22 (10) of the Act 2014, a Tribunal Established under section 21 of the Act has exclusive jurisdiction, hence the impugned judgment/order is corum-non-judice. He contended that due observance of process of law is fundamental right of every citizen under Article 4 read with Article 10-A of the Constitution of Pakistan (Constitution), hence, prayed for setting aside the impugned judgment/order with further

prayer for remanded of the case to the Tribunal established under the Act 2014.

5.Respondent, present in person,

supported the impugned judgment/order praying for maintaining the order and removal of dumping site.

6.After hearing both side, it was noticed that the grievance of the respondents is in respect of the dumping of waste material near village Abadi causing hazards, pollution, damage to environment and sometime loss of crops etc due to fire to the waste material. The Act of 1997, in Section 12 therein, conferred jurisdiction of the Court to entertain complaints within the local limits of its jurisdiction. Section 2 (c) of the Act of 1997 has defined consumer, as following: -

(c)"Consumer" means any person 4 [or entity] who:-

(i)buys goods for a consideration which has been paid or to promised or partly paid and partly promised to be paid or under any system of deferred payment including hire purchase and leasing and includes any user of such goods but does not include a person who obtains such goods for re-sale or for any commercial purpose; or

(ii)hires any goods or services for a consideration which has been paid or promised or partly paid and partly promised to be paid or under any system of deferred payment including hire purchase and leasing and includes any beneficiary of such services.- Similarly, term “Services” has been defined as:-

(n)“Services”---------

"Services" includes services of any description which arc made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, manufacturing, processing, accountancy, supply of electrical, mechanical or any other form of energy 3 [including gas and petrol, water, telephone], boarding or lodging, entertainment, medicine, education, construction work, amusement, catering, security, or purveying news or other information and similar other services, but does not include the rendering of any service free of charge or under the contract of personal services; and 7. Keeping in view the reasons and purpose of promulgation of the Act of 1997, it is clear that the said Act was introduced to encourage fare trade practices and to protect legitimate interests of consumer. Similarly, consumer is a

person who buy goods for consideration or hire services. To attract the provision of the Act 1997, a complainant must prove to be a consumer by way of purchase of goods or hired services of a service providers for a consideration. In the case in hand, the respondent has neither purchased any goods nor have hired the services of the appellant, rather they are aggrieved from the actions/acts of the appellant for establishing a dumping site for the waste material, creating hazard and nuisance to the nearby population.

8.To the contrary, the Act 2014 mostly relates to the grievance of the respondents wherein they have alleged to be affected due to the establishment of dumping zone, which matter squarely falls within the jurisdiction of the Tribunal established under section 21 of the Act 2014. Similarly, the jurisdiction of the Tribunal has been described in Section 22 sub section (1)

(2)and (3) which is reproduced for better comprehension: -

“22. Jurisdiction and powers of the Tribunals.--- (1). The Tribunal shall exercise such powers and perform such functions as are, or may be conferred upon

or assigned to it by or under this Act or the rules made thereunder.

(2). All contravention punishable under sub-section (1) of Section 18 shall exclusively be triable by the Tribunal. (3). The Tribunal shall not take cognizance of any offence triable under sub- section (2) except on a complaint in writing by--- (i). the Agency or any government Agency or local council; and (ii). Any aggrieved person, who has given a notice of not less than thirty days to the Agency in case of complaint against private person or organization or to the officer responsible, in case of a complaints against government departments, local council and local authority of the alleged contravention and of his intention to make a complaint of the Tribunal.

9.The grievance of the respondents, was, therefore not in respect of the goods or services, in view of section 2 (g) and (n) of the Act 1997, rather the matter falls within the jurisdiction of Tribunal established under the Act 2014 and therefore it is held that the impugned judgment

being corum-non-judice is set aside. The case is remanded back to the learned consumer Court, where the complaint shall be returned to the respondent for presenting before the competent forum, in accordance with law.

Announced.

Dt.06.02.2023 Date of writing judgment

Muhammad Tariq Stenographer

JUDGE