Muncipal Committee Mingora vs Naser Khan etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

Civil Revision No. 101/2014

Date of hearing:.......... 29.9.2014.

Petitioner: (Municipal committee Mingora) by Mr. Faisal Khan, Advocate.

Respondent: (Nasar Khan & others) by Mr. Iftikhar Ahmad (Senior), Advocate

ABDUL LATIF KHAN;- J.- This judgment shall dispose of two civil revisions bearing No. 101/2014 and 102/2014 as similar question of law is involved in both the petitions.

2.Arguments heard and record perused.

3.The perusal of record reveals that

plaintiffs/respondents 1 to 5 filed a suit for perpetual injunction against the petitioners alongwith others to the effect that the petitioners/defendants be restrained from

issuance of notice from demolition of construction raised on the property owned by them and also for cancellation of notice issued by the plaintiffs bearing No. 2860 dated 21.10.2013 alongwith directory injunction. The defendants/petitioners prior to filing of written statement submitted an application for the return of plaint for want of jurisdiction by the civil court, which was contested by the defendants, however, learned trial court rejected the plaint under Order VII Rule 11 C.P.C vide judgment dated 4.11.2013 on the ground that as the matter is barred by law i.e., under River Protection Ordinance, 2002. The respondents preferred an appeal which was allowed by the learned Additional District Judge/ Izafi Zila Qazi, Swat, on 8.2.2014, set aside judgment of trial court and remanded the case back to the trial court for proceedings the suit in accordance with law.

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4.The available record reveals that the

provisions of Order VII Rule 11 C.P.C are not attracted to the instant case. The trial court has wrongly attracted the provisions despite the fact that the petitioner has prayed for return of plaint under Order VII Rule 10 C.P.C on the ground of lack of jurisdiction. The bar considered by the trial court in the light of Section 13 of the River Protection Ordinance, 2002, wherein special trial court vested with the jurisdiction to entertain alike matters and Section 16 of the Ordinance, has expressly barred the jurisdiction of the Civil Court resulting into rejection of plaint of the plaintiffs under Order VII Rule 11 C.P.C, which is misplaced for the reasons that no special court has since been notified nor is functional and, as such, the parties/ citizen cannot be left in vacuum as there is no forum provided for the redressal of their grievances constituted in *Zafral*

the light of Section 13 of the Ordinance, ibid, and civil court being mother forum has got the jurisdiction to entertain the matter. Ouster clause in any statute only applicable when authorities constituted therein act within four corners of the statute. Moreover, when the authority has not acted in accordance with law jurisdiction of civil court cannot be ousted. Mere mention regarding the constitution of special authority/court to deal with the matter in the special statute would not debar the civil court from assuming jurisdiction for redressal of the grievances of the citizen until and unless authority has been constituted as required by the statute as where no remedy is provided in any enactment, court cannot fold its hands and leave the fate of aggrieved person in the air. General principle is that every right has a remedy and jurisdiction of court can only be ousted on actual constitution of *Zafral*

special court/authority and not mere mention the same in the Ordinance which is not acted upon since 2002 which is highly deplorable on the part of the provincial Government, who is supposed to act in line with statute strictly, within reasonable time. Moreover, the Ordinance, though extended to these area, however, is not applicable for the reason that Government has not so far issued any notification in official gazette specified the area under section 1(2) of the Ordinance, ibid. Section 2 (p) of the Ordinance, reveals that trial court means the Court of judicial magistrate of the first class authorized to try offences under this Ordinance. Section 13 has been specified by the trial Courts wherein government shall, by notification in the official gazette, authorize one or more trial courts of the judicial magistrates of the first class and specify the area of jurisdiction of each such Court which *Zafral*

shall exclusively try offences under this ordinance and in such scenario the bar of civil court has been given under section 16 of the Ordinance, ibid, however, in the circumstance of the instant case no trial court exist to try the offence nor jurisdiction of civil court can be ousted and as such the findings of trial court are not based upon sound reason and rightly set aside by the learned Additional District Judge/ court of appeal and has decided the lis pending before it with conscious and application of independent mind, needs no interference.

For the aforesaid reasons, both the civil revisions being without substance are dismissed.

Announced.

Dated: 29.9.2014. JUDGE

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