Maqbool Khan etc Vs Assistant Commissioner Lower Kurram Sadda, etc

Judgmnemt Sheet

tN TE{E PmSHAWAR.HIGH CoURT,

PMSHAWAR.

"YWWTCTAL MEPARTMENT.

JUfl}GIVIEl\T Writ Petitiom No.35E7 -P 12022" Date of hearirng 16.05"2023. &Iaqhool Kham etc Vs Assistamt Comrilissiomen, Lower Krnrraml, Sadda & others"

Petitioner (s) by: IVfr. Ahdul Hafeez Advocate.

Respondent(s) by; M/s Muhammad Moazzarn Butt Advocate & .Iunaid Zaman AAG.

,r***

WIOAR AHMAI). .tr:-.Petitioners in instant Constitutional Petition, are aggrieved from order/ letter No"307-9/AC LK dated 17.49.2022, rendered by Assistant Comrnissioner, Lower Kurram Sadda, whereby direction had been issued to respondents No.2 to 4 for dispossessing petitioners from premises in dispute.

", Comments have been filed

wherein respondent No. tr has relied on

provisions of Khyber Fakhtunkhwa ,dlternate Dispute Resolution Aot, 20ZA (hereinafter referred to as ADR. Act) 3 During pendency of instant

Constifutional Petition private respondents No.5 to I had also filed an application (CM No.2141-Pl2022) for their irnpleadment, which was allowed by this Court vide order dated 15.11.2022 and resultantly they have also been impleaded in panel of respondents 4 We have heard arguments of

learned counsel for petitioners, learned counsel representing respondents No.5 to 8 as well as leamed AAG for official respondents and perused record.

5 Ferusal of record reveals that through instant Constitutional petition, propriety of impugned order has been challenged but vires of law under which same had purportedly been issued, has not been challenged in instant petition. Scope of our discussion would therefore be restricted to propriety of impugned order in light of

law i.e, Section 3 of the ADR Aot, (relied upon by respondents). Through impugned order, respondent No.1, i.e, Assistant Comrnissioner, Lower Kurrarn Sadda had issued direction to local police for vacating two houses (Compounds) frorn its occupants and to retain its possession by deputing police personnel there. To know the nature of the directions issued, said order is also reproduced herein for ready reference:- "R.eferenee above nated sub.iect and to inform tkut there is s dispwte aver land sitwated near fu[ir Bagh/ Suteen between the inkabiturrts of Sateen n-ower Kwrrarn wnd inksbitsnts af Mir Eagh/Badama klasozst af Central Kurram" $otk parttes huve earlier prtvwte Jirga rnernbers for resolwtiom of tke dispwte between thew.

In this connectton, approx.O2 compownds/ houses laave heen constrwcted wt two dffirent places, repartedly on the advise of, private .{irga mernbers in am effort to resolve tke issaw between tke parties" Now, one af Jirga rnernhers namely fu{ula Nshi af Tkall, has intirnated thts affice to vucste tke said rootns/ltouses from its occwpfints for taking over its possesston by the adwinistration

till smieable resalwtion o the fsswes hetween tlee parties. Keeping in view, please vacwte tke said two counpounds/haases constrwcted near Sateen from its occapants snd deploy 03/04 constables over tke s&ww s0 tkst tke isswe between botk parttes cowld he resolved st its earliest"" 6 Respondent No"l in his cornments has relied upon the powers vested by hirn under provisions of ADR Aot, section-3 whereof is also reproduced herein for ready reference:-

3.Reference in Civil wtes.---

(1)The court, after appearafice af all parties, as soon @s possible, ftruy refer $ Civil dispwte for Alternate Dispwte Resolution exeeptn wkere- (s) any af the parties to the dispate do not &gree for Alternwte Dispwte Resolutton; (b) the coart, kaving regard to tke facts s*ad eircwmstances of the case, ts satisfied that there is no possibiltty af resolution of the dispwte tfuroagh Alterruate Dispwte Resolation; or (c) an intricute qwestion of law or facts is involved in tke case whick csrunot atkerwtse be resolved throagh Alternqte Dispwte Resolution. (2) Withowt ltwiting tke powers of tke cowrt wnder swb-sectton (1), the Depwty Cowtntissioner or @ny ather officer nominsted by

Government wwy slsa refer a Ctvil dispwte _for Alternate Dispwte Resolation. (3) Before referral of a Civtl dispwte to Alternste Dispate R.esalutton ander swb-seetions (1) and (2), the refewing awthority wr{ty franne dssues witk the consent of tke purties, for facilitating tke settlement: Frovided that tke Saliseen 64ill3,@ith the consent af tke parties, frawe additionul i'ssrues if so reqwired dwring the cvwrse af ,Altermute Dtspute Resolwtion proeeedimgs. 5 @) nn every Citttl dispwte wkere @ reference ts made for ,Alternate Dispwte Resaluttan, tke referrimg autkortty shall provide w time tabte for carnpletion of ,Alternate Dispwte Resolation proceedtngs not exceeding tkree months: Provided that the referring awthority, 0n tke appltcation af botk tke pwrties, r,nay ertend tke time grwnted for resolwtion af tke case thrawgh Alternate Dispwte Resolution: Provtded fwrtker tkst the total time, granted f,or aowplettan of, .A.lternate Dispwte Resolwtton proceedingso sksll nat exceed six mantks in any case" (5) The tfiol or final adjwdicatiow of a case, ref,erred f,or Alternate Dtspate Resolutiorc, skull be pastponed till the eompletion af the tirne allottedfar wnder swbsecttan {3)" (6) Tke refewiwg aatkority or tke Saltseerc (N13,$n order to prevent the Civit dispate from fartker aggresston 0r to rnsintsin statws quoo if deem appropriate, mwy isswe interim tnjwnction.

R.espondent No.tr has more specifically been claiming existence of powers in his office being provided under sub Sections 2, 3 of Section 3 of ADR Act. The power of referring a civil dispute has been provided to be lying with a civil Court under sub section 1 of the above reproduced Section 3 ofthe ADR Act. Sub section 2 thereof has however been providing for powers of Deputy Cornmissioner or any other of,ficer nominated by govemrnent to refer a civil dispute for alternate dispute resolution but (as per sub Section 3 of the ADR Act) for such referral of dispute and frarning of issues by referring authority or the Saliseen consent of parties would be required. The consent mentioned in sub section 3 would also be nequired for ernpowering the referring authority, be it a civil Court or the Deputy Commissioner or other officer authorized under the law. On holistic reading of Section 3 of A.DR. Act, this fact

becornes rnanifestly clear that for referring of matter ta Saliseen for alternate dispute resolution, consent of parties would be sine qua non. The order irnpugned herein has been passed in purported exercise of powers vested with Referring Authority under sub Section 6 of Section 3 of the ADR Act. The tregislature while enacting said clause has only been intended to authorize the referring authority ar Saliseen for uraking an order of maintaining status quo in order to prevent a civil dispute frorn further aggression and only f'or such a purpose power of issuing an interim injunction has been provided. This was not an open ended power, for rnaking any order, in guise of interim injunetion Legislature has consciously used restricted language and sarne restriction may readily be found in said clause. An order under sub- section-6 of section-3 of the ADR Act should therefore be regulated. For said purpose the exercise of powers shall only be rnade in the following conditions and would

be sub.ject to the lirnitation given herein below;

A. An order wnder ahove refewed proviston mwy omly be isswed when a Referring Awtkortty is entrasted with saek capaci$ hy express consent of, parties, in writtng, setne is the sitwstion af, Saliseen, wko may issae such stl order ufter the matter is being referred to tkern wttk express consent ofwil tke uffected pwrties; ts" Swch order tnwy only be passed whem there is apprehension thst a civil dispute is likely to result into aggression or breaek afpewce;

C. Sack order cannot be gtvew heyomd scope of maintaintng statws quo;

D" Swck order skauld be time boand in natwre and showld be swbject to finul decision in matter" 7 trf we disoern the impugned

order on above mentioned touchstone, we do not find it to be justified on a nl..lrnber of scores. First of all it is noticeable that the required consent of petitioner, (whereunder respondents should have been authorized) coukl not be found in case in hand.

Althor.lgh it is mentioned in comrnents that petitioner had earlier given his consent for private members Jirga but when nnatter had subsequently been taken up by respondent No. tr and consent of petitioners had been solicited, they had not given such consent but had asked for some time to consr.llt the issue with other co-tribesrnen (Para B of comments). In such a situation the Assistant Comrnissioner (respondent No.tr) could not show that petitioners had given their consent at the tirne of issuance of impugned order.

Any earlier consent statedly acquired frorn petitioners cannot be deemed sufficient for authorizing respondent No.l for all tirnes to make any injunctive order in respect of disputed prernises.

s The impugned order was also

not f,or rnaintaining status quo but for altering status quo. It has been directed through impugned order that possession of the house should be taken from its inhabitants and retained by local police. An

order of this natr.lre can never be deerned authorized under sub section 5 of Section 3 or any other provision of ADR Act or other laws.

9 The order was also not indicating how had the urgency erupted in a matter which had earlier been referred for decision of Saliseen and what particular apprehension of breach of peace was there under which even order for maintaining status quo could be issued. The order has sirnply been issued on direction of a private member Jirga i.e, Mula Nabi and even no unanimous decision of Jirga was there in field. On all scores the irnpugned order was not found justifiable, which requires interf,erence of this Court for course correction.

x0. trn light of what has been

discussed above, instant writ petition 1S allowed the irnpugned order is set aside. For rest of the reliefs in respect of immovable property, petitioner would be at liberty to

have recourse to appropriate forum available to hirn under the law.

Annoumced.

16"0s"2affi.

CI{TEF.IASTNCE

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