PLJ 2023 Peshawar 94
Present: Syed Arshad Ali, J.
Mst. FALAK SHEHNAZ and another--Appellants
versus
Mst. FARAH DEEBA and others--Respondents
F.A.O. No. 144-P of 2021, decided on 9.12.2022.
Khyber Pakhtunkhwa Enforcement of Women’s Property Rights Act, 2019 (XLIV of 2019)--
----Ss. 4 & 8--Constitution of Pakistan, 1973, Art. 175(2)--Filing of complaint for separation of share in legacy of late father--Suit for declaration, partition and recovery of mense profit--Complaint was filed during pendency of suit--Order for attachment and sealed of property by ombudsman--Jurisdiction--Partition of joint property--Inherent defect--Ordering sealing of any property by Ombudsman is not backed by any law and any order for attachment of immovable property should be implemented and interpreted in manner--Impugned order allowing sealing of disputed property is obviously without jurisdiction and thus is accordingly set aside--Order of attachment of disputed property shall remain in field--Ombudsman thus falls in regime of executive limb of State though he performs his functions as quasi-judicial, he can record evidence; investigate a matter, and functions as a watchdog on government institutions--He receives his authority from Parliament--When Worthy Ombudsman at very initial stage shall confirm as to whether subject matter of dispute is pending before any competent civil Court then in such circumstances, Ombudsman shall lay off his hands from proceedings as same would be in conflict with Article 175(2) of Constitution--Appeal partially allowed.
[P. 98, 103 & 113] B, C, G & K
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXVIII R. 7--Mode of attachment of property--Mode of attachment as provided in Order 21 has to be followed for attachment before judgment. [P. 97] A
Theory of Trichotomy--
----Theory of trichotomy of powers between three limbs of State, namely, Legislature, Executive and Judiciary--It delineates functions of each of organs--It envisages that each organ of State shall function within bounds specified in Constitution--Adversarial functions of Court on any authority would then obviously offend basic theory of trichotomy--Jurisdictions, functions and powers of Wafaqi Mohtasib have been provided in Clause 9 of Order to undertake any investigation into any allegation of mal-administration on part of any agency or any of its officers or employees. [Pp. 98, 99 & 101] D & E
Wafaqi Mohtasib (Ombudsman) Order, 1983--
----O.I, Cl. 9—Prohibition for of wafaqi mohtasib--Mohtasib established under Order was prohibited to interfere in any matter which is sub-judice before a Court of competent jurisdiction or tribunal.
[P. 101] F
Protection Against Harassment of Women at Workplace Act, 2010 (IV of 2010)--
----S. 7--Functions of ombudsman--Functions of Ombudsman are provided under Section 8 of Act of 2010 which, inter-alia, includes to receive and entertain a complaint in respect of harassment of any employee relating to harassment at workplace and to investigate same. [P. 104] H
Protection Against Harassment of Women at Workplace Act, 2010 (IV of 2010)--
----Ss. 4 & 7--Filing of complaint--A woman who is deprived of her ownership or possession of property may file a complaint to Ombudsman if no proceedings in a Court of law are pending regarding property whereas in Section 7 she has been given authority to entertain a complaint in respect of any dispute relating to property right of woman despite pendency of claim before competent Court of law--She is authorized to conduct enquiry, investigation and probe through Deputy Commissioner and can conduct a summary enquiry and after conclusion of such enquiry, she may file a report in Court of law in which case is already pending, recommending that proceedings in Court may be terminated or put in abeyance unconditionally or subject to any Court order Ombudsman be permitted by Court to take further proceedings under Act. [Pp. 106 & 107] I & J
Mr. Ghulam Mohy-ud-Din Malik, Advocate for Appellants.
Ms. Shakila Begum, AAG for official Respondents.
Mr. Zahid Ullah Zahid, Advocate for Respondents.
Date of hearing: 28.9.2022.
Judgment
This judgment is aimed to dispose of the instant appeal filed by the appellants against the order of the Worthy Ombudsman (Khyber Pakhtunkhwa) dated 18.06.2021 whereby, inter-alia, it was ordered that the entire disputed property shall be attached and sealed till the disposal of the main complaint.
2. The learned counsel for the appellants has argued that the impugned order passed by the Worthy Ombudsman is illegal and without jurisdiction as it has deprived all the appellants of the usufruct of the disputed property which is the source of their earnings.
3. On the other hand, learned counsel representing the respondents have challenged the maintainability of this appeal on the ground that Section 12 of the Enforcement of Women Property Rights Act, 2019 (“The Act”) bars the jurisdiction of any Court other than the Ombudsman in the matter in hand.
4. Arguments heard and record of the case was perused.
5. It is evident from record that the present issue relates to the claim of the complainants/respondents in the legacy of late Alam Khan. On 11.11.2019, Mst. Khushnood and 04 others have filed a suit for declaration, partition, and recovery of mesne profit before the Senior Civil Judge, Mardan in respect of the disputed property. This suit is being contested by the appellants through their written statement.
6. While the said suit was pending adjudication before the Civil Court, Mst. Khushnood and 02 others on 25.06.2021 had filed a complaint under Section 4 of the Khyber Pakhtunkhwa Enforcement of Women’s Property Rights Act, 2019 (“the Act”) for the separation of her share in the legacy of late Alam Khan.
7. On being noticed, the respondents/appellants have contested the claim of the complainants/respondents on various legal and factual grounds claiming therein the private partition, certain sale made by complainants through unregistered deed, and the jurisdiction of the Worthy Ombudsman.
8. The record further reveals that the complainants Mst. Khushnood and others had also approached dispute resolution council Mardan, DPO Mardan for separation of their share in the joint property.
9. During the proceedings, as evident from various order sheets of the Worthy Ombudsman, the parties had tried to settle the issue, however, the same could not bear fruit and ultimately on 18.06.2021, the Worthy Ombudsman ordered for attachment and sealing of the disputed property. This order has been challenged through the instant appeal.
10. In the present case, the subject matter of dispute is the partition of the estate of Late Alam Khan regarding which the Civil Court has also taken cognizance as the respondents Mst. Khushnood etc. have filed a civil suit before the civil Court for separation of her share. The record further suggests that there are constructed houses and on some major portion of the disputed property, there is a market that is in possession of the tenants.
11. Through the impugned order, the Court has ordered for attachment and sealing of the disputed property which is jointly held by the appellants as well as the respondents. The attachment and sealing of property are two different concepts. The Civil Procedure Code, 1908 provide a mechanism for attachment of the property at two stages i.e. attachment before judgment and attachment during execution proceedings. The order dated 05.08.2021 of the Ombudsperson gives a reflection that she intended to pass an order for attachment of the property before final decision of the case. Section 94 and Order 38 of Civil Procedure Code deal with attachment before judgment. The object of attachment before judgment is to prevent an attempt on the part of the defendants of defeating the realization of the decree which may ultimately be passed against him.
12. Order 38 Rule 7 provides that the mode of attachment as provided in Order 21 has to be followed for attachment before judgment. The property in the present case is immoveable property; therefore, Order 21 Rule 54 of, CPC is relevant for the purpose which is reproduced here for ready reference:
“1. Where the property is immovable, the attachment shall be made by an Order prohibiting the judgment debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.
2. The Order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the Order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the District in which the land is situate.”
13. The rule does not in any way allow the Court to take actual possession of the property in dispute. The property remains within the possession of the defendants. Thus, ordering the sealing of any property by Ombudsman is not backed by any law and any order for attachment of immovable property should be implemented and interpreted in the manner as stated above. Therefore, the impugned order dated 05.08.2021 allowing the sealing of the disputed property is obviously without jurisdiction and thus is accordingly set aside. However, the order of attachment of the disputed property shall remain in field.
14. I have also perused the Act which has conferred upon the Worthy Ombudsman whose office is established under the Protection against Harassment of Women at the Workplace Act, 2010 (Act No. IV of 2010) to entertain a complaint from any woman who has been deprived of her property. Thus, the question arises that when the Courts are established in terms of the mandate of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”), parallel adversarial functions which the Courts exclusively enjoy can be conferred upon any limb of the State other than judiciary and whether the office of Ombudsman falls within the judicial limb of the State.
15. Our Constitution is founded on the theory of trichotomy of powers between three limbs/organs of the State, namely, the Legislature, the Executive and the Judiciary. It delineates functions of each of the organs. It envisages that each organ of the State shall function/ operate within the bounds specified in the Constitution. “Mehram Ali vs. Federation of Pakistan (PLD 1998 SC 1445), Liaqat Hussain vs. Federation of Pakistan (PLD 1999 SC 504).”
16. Adversarial functions of the Court on any authority would then obviously offend the basic theory of trichotomy. Justice Saeeduzzaman Siddiqui while speaking for the Court had observed in case of ‘Liaqat Hussain supra’, “Creation of Courts outside the control and supervision of Supreme Court or the High Courts, therefore, not only militates against the independence of Judiciary but it also negates the principle of trichotomy of power which is the basic feature of the Constitution.”
17. Now we would endeavor to find where does the office of Ombudsman lie whether it is the part of the Executive or the Judicial limb of the State. The establishment of the office of Ombudsman and its history has been elaborately defined and traced by the Supreme Court of Canada in the case of “British Columbia Development Corporation vs. Friedmann (Ombudsmen) (1984 SCC 121).” This Court will opt to borrow the following paragraph from the said judgment in order to effectively understand the meaning and scope of the establishment of the office of Ombudsman:
“The need for some means of control over the machinery of Government is nearly as old as Government itself. The Romans, as long ago as 200 B.C, established a tribune-an official appointed to protect the interests and rights of the plebians from the patricians. They also had two censors-magistrates elected approximately every five years to review the performance of officials and entertain complaints from the citizenry. And the dynastic Chinese had the Control Yuan, an official who supervised other officials and handled complaints about maladministration.
The office of the Ombudsmen and the concept of a grievance procedure which would be neither legal nor political in a strict sense are of Swedish origin, circa 1809. The Constitution which established Sweden as a democratic monarchy, and created the Swedish Parliament, also provided for parliamentary oversight of the bureaucratic machinery through a new official called the justitie ombudsman.
As originally conceived, the Swedish Ombudsman was to be parliament’s overseer of the administration, but over time the character of the institution gradually changed. Eventually, the Ombudsman’s main function came to be the investigation of complaints of maladministration on behalf of aggrieved citizens and the recommendation of corrective action to the Governmental official or department involved.
The institution of Ombudsman has grown since its creation. It has been adopted in many jurisdictions around the world in response to what R. Gregory and P. Hutchesson in The Parliamentary Ombudsman (1975) refer to, at p. 15, as “one of the dilemmas of our times, namely, that “[i]n the modern state… democratic action is possible only through the instrumentality of bureaucratic organization; yet bureaucratic power – if it is not properly controlled –is itself destructive of democracy and its values.”
18. The concept of Ombudsman/Mohtasib in the Islamic polity has been traced by the Apex Court in “Reference No. 2 of 2005 reported as (PLD 2005 Supreme Court 873)”. The purpose, scope and function of the Ombudsman has been provided in Para No. 11 of the judgment which reads as under:
“11. The concept Ombudsman has been discussed in a “Commentary on Ombudsman” by Mubeen Ahmed Khan, substance whereof is that it is an institution which takes care of a large segment of population or the large number of the residents against the mal-administration of the Government functionaries. Dr. Riaz Mehmood in “The Concept of Administrative Accountability in Islam” in chapter Ombudsman: concept and growth: has described that Ombudsman is a person or an office which on complaint or reference or even suo moto can look into administrative actions, omissions and commissions of Government or Semi-Governmental agencies, affecting their subjects in case they in their own place term them a partial, improper, arbitrary, oppressive, harsh, discriminatory, biased, victimizing, or the result of neglect, lethargy or incompetence, and after necessary investigation, offer possible redressal, within statutory spheres. Three renowned scholars on the subject i.e. Geraled E. Caiden, Nail Macdermot and Ake Sandler have detailed the concept of Ombudsman in lucid manner: “a new and to many people, a foreign word is being heard more frequently, it is “Ombudsman.” A term that refers to special office or officer to whom people can go with their grievances about the way their business with large anonymous bureaucracies has been handled. The Ombudsman records public complaints, investigates them, and reports the findings to the complainants and the organizations investigated. Should any wrong be discovered, it is expected that it will be put right, if not to the complete satisfaction of aggrieved party, then at least better than it would have been without the Ombudsman’s intervention. For the public, the Ombudsman is a welcome device for assuring that justice is done and that bureaucracies treat their clients fairly, promptly and respectfully. For bureaucracy, it is an additional failsafe check on their operations, thus it provides additional protection for both public and bureaucracy, something that seems required as the transactions between them multiply.”
19. In our country, the office of Ombudsman was first established through the establishment of the office of the Wafaqi Mohtasib (Ombudsman) Order, 1983. The purpose of the establishment of the office of Wafaqi Mohtasib as evident from preamble of the President’s Order No. 1 of 1983 (“Order”) to provide for the appointment of Wafaqi Mohtasib (Ombudsman), to diagnose, investigate, redress and rectify any injustice done to a person through mal-administration. The jurisdictions, functions and powers of Wafaqi Mohtasib have been provided in Section/ Clause 9 of the Order to undertake any investigation into any allegation of mal-administration on the part of any agency or any of its officers or employees. The result of the said investigations would be recommended and implemented in the manner as provided under the Order, however, the Mohtasib established under the Order was prohibited to interfere in any matter which is sub-judice before a Court of competent jurisdiction or tribunal, etc.
20. The issue relating to whether the Mohtasib Act has a Court or otherwise came before the Apex Court in the case of “Shafaatullah Qureshi vs. Federation of Pakistan (PLD 2001 SC 142)”wherein it was held:
“12. Suffice it to say, that from above-cited cases, it is not established that the office of Wafaqi Mohtasib is a Court nor any such finding has been recorded in these matters though it has been stated that Wafaqi Mohtasib performs quasi-judicial functions. Performance of quasi-judicial functions by itself does not convert an authority into Court, whether an act is quasi-judicial or purely executive depends on the interpretation of rules/law under which the authority exercises its jurisdiction. It is true that the administrative authority also is to act bona fide, but it is different from saying that it must act judicially. Many authorities are not Court, although they have to decide; questions and have to act judicially in the sense that the proceedings shall be conducted with fairness and impartiality. In order to constitute a Court in strict sense, it shall have power to give a decision or a definitive judgment, which has finality and authoritativeness.”
21. Similarly, in our jurisdiction we have the offices of Ombudsman which have been created through different statutes for example Federal Tax Ombudsman created under establishment of the office of Federal Tax Ombudsman Ordinance, 2000 (Ordinance No. XXXV of 2000), Banking Mohtasib; the office whereof has been established under Section 82-A of the Banking Companies Ordinance, 1962 (Ordinance No. LVII of 1962), Insurance Ombudsman established under Section 125 of the Insurance Ordinance, 2000 and the Provincial Ombudsman for the Province of Punjab established under the Punjab Office of Ombudsman Act, 1997.
22. The functions and scope of all the offices established under the aforesaid Statues were to enquire and investigate the mal-administrations in various Government Agencies, Banking Sector and Insurance Sector. At this juncture in order to comprehend the matter, I would refer Para No. 38 of the judgment of Apex Court in the case of “Federation of Pakistan vs. Muhammad Tariq Pirzada (1999 SCMR 2189)” which is reproduced as under:
“38. The legal status of the Mohtasib under the Establishment of the Office of the Wafaqi Mohtasib (Ombudsman) Order, 1983 against came under discussion before the Supreme Court in Shafaatullah Qureshi vs. Federation of Pakistan (PLD 2001 SC 142) and it was held that since the Wafaqi Mohtasib was not a Court nor a judicial Tribunal therefore the period consumed in proceedings before it could not be excluded under Section 14 of the Limitation Act, 1908. While discussing what is a Court’, the Supreme Court referred to Mir Rehman Khan vs. Sardar Asadullah Khan (PLD 1983 Quetta 52) which had held that the determination of the question which forum is a Court and which in not, is mainly dependent on the manner and method in which proceedings are regulated before it; that forums which are not bound by any law with regard to procedure and evidence, and only settle disputes but do not administer justice according to law, are not Courts; that Courts are such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence in arriving at just and fair conclusion. The Supreme Court observed that had the legislature intended for the Wafaqi Mohtasib to serve as a Court or Judicial Tribunal, it would have stated so in the Establishment of the Office of the Wafaqi Mohtasib (Ombudsman) Order, 1983; therefore the status of a Court cannot by implication be conferred on the Wafaqi Mohtasib when it cannot deliver a binding judgment; that though the office of the Mohtasib has been created for redressal of the grievance of the citizens but it is neither a Court nor a Judicial Tribunal within the scope of Article 175 of the Constitution. While approving Tariq Pirzada-II, i.e. the Wafaqi Mohtasib was a quasi-judicial authority, the Supreme Court further held that performance of quasi-judicial functions by itself does not convert an authority into a Court, and that whether an act is quasi-judicial or purely executive depends on the interpretation of rules/law under which the authority exercises its jurisdiction; that many authorities are not Court, although they have to decide questions and have to act judicially in the sense that the proceedings shall be conducted with fairness and impartiality; that in order to constitute a Court in the strict sense, it should have power to give a decision or a definitive judgment, which has finality and authoritativeness.”
23. The office of Ombudsman has also been established in various countries including India and when a matter regarding the scope of work of Ombudsman came before the Indian Supreme Court in the case of “Durga Hotel Complex vs. Reserve Bank of India and others (AIR 2007 SC 1467)”, the Apex Court of India has observed:
“Conceptually, an Ombudsman is only a non-adversarial adjudicator of disputes. An Ombudsman by definition is only an official appointed to receive, investigate, and report on private citizen’s complaints about the Government; a similar appointee in a non-governmental organization (such as a company or university). (See Black’s Law Dictionary). He serves as an alternative to the adversary system for resolving disputes especially between citizens and Government agencies. He is an independent and non-partisan officer who deals with specific complaints from the public against the administrative injustice and mal-administration. (See 4 American Jurisprudence 2d). Therefore, by its very nature, an Ombudsman is an alternative to an adversary system for resolution of disputes.”
24. The survey of laws regulating the office of Ombudsman in various jurisdictions as well as in Pakistan and the case law referred above would show that the office of Ombudsman has been established to investigate and report on private citizen complaints about the Government or its Agencies relating to its mal-administration. The scope and functions of Ombudsman is a non-adversarial adjudicator and he cannot render definite findings on any issue rather he recommends to the relevant authority if he finds any mal-administration in any public sector organization to the relevant authority. Ombudsman thus falls in the regime of executive limb of the State though he performs his functions as quasi-judicial, he can record evidence; investigate a matter, and functions as a watchdog on Government Institutions. He receives his authority from Parliament.
25. Moving on to the piece of legislation relating to the establishment of the office of Ombudsman. The office of Ombudsman was initially established by the Federal Law through the Protection Against Harassment of Women at the Workplace Act, 2010 (“Act of 2010”). Section 7 of Act of 2010 envisages for appointment of Ombudsman at Federal and Provincial level. The functions of Ombudsman are provided under Section 8 of the Act of 2010 which, inter-alia, includes to receive and entertain a complaint in respect of harassment of any employee relating to harassment at workplace and to investigate the same. Under Section 10 of the Act of 2010, the Ombudsman has the power to summon the witnesses, receive the evidence etc.
26. Through a Provincial Statute (Enforcement of Women’s Property Right Act, 2019) the Ombudsperson appointed under
Section 7 of the Act of 2010 has been given further powers also to receive complaint from any woman in respect of the title or possession of her property who is deprived by any person of her property. The powers of the Ombudsman under the Act are provided under Section 3 whereas the procedure of filing complaint has been provided in Section 4 of the Act. The provisions of the Act germane to the present controversy are reproduced as under:
“4. Complaint to the Ombudsperson in case no proceedings in a Court of law are pending.--(1) Any woman deprived of ownership or possession of her property by any means, may file a complaint to the Ombudsperson if no proceedings in a Court of law are pending regarding that property.”
Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization, may also initiate action under sub-sections (1) in relation to the ownership or possession of a woman’s property, if no proceedings are pending in a Court in respect of that property.
(2) The Ombudsperson shall make a preliminary assessment of the complaint filed under sub-sections (1) whereafter he may, if the matter requires further probe or investigation, refer the matter to the concerned Deputy Commissioner, who, after calling the record, if necessary, and issuing notices to the complainant and her adversaries, conduct a summary enquiry and submit a report within fifteen days to the Ombudsperson.
(3) If the matter does not require any detailed probe, investigation or recording of evidence, the Ombudsperson may, after calling any record, if deemed necessary, pass orders under Section 5.
(4) The Ombudsperson upon receiving the report under sub-sections (2), may further conduct such summary enquiry and call for such record as he may deem fit.
(5) The Ombudsperson after confronting the report of the concerned Deputy Commissioner and the conclusion and findings of his own enquiry, shall call upon the complainant and her adversaries to submit objections, whereafter he may conduct.
5. Delivery of possession and transfer of ownership of property to women etc.--(1) On conclusion of the proceedings under Section 4, if the Ombudsperson finds that the complainant has been illegally deprived of ownership or possession of her property, he shall direct the Deputy Commissioner or a state functionary or any private person to take steps so as to restore or confer possession or title of the property to the complainant, including measures to perfect such title.
(2) The Ombudsperson may, where deemed fit, direct the officer-in-charge of a police station for such assistance as may be required for the purposes of implementing the orders passed under sub-section (1).
(3) The concerned Deputy Commissioner shall submit a compliance report within seven days to the Ombudsperson in respect of implementation of his orders.
6. Reference to the Court.--(1) Notwithstanding anything contained in Sections 4 and 5, if upon preliminary assessment, or upon receiving the report of the Deputy Commissioner or upon conducing further summary enquiries by the Ombudsperson himself, he comes to the conclusion that the matter requires in-depth enquiry, investigation or detailed recording of evidence or intricate adjudication, he shall formulate a reference along with all the reports and material collected and submit the same to the Civil Court of competent jurisdiction preferably within sixty days of receipt of the complaint under sub-section (1) of Section 4.
(2) Notwithstanding anything contained in any other law, the Civil Court shall entertain the reference under sub-section (1) as a civil suit and proceed further in terms of the Code of Civil Procedure, 1908 (Act V of 1908) and the relevant rules.
7. Complaint to the Ombudsperson in case proceedings in a Court of law are pending.--(1) Where proceedings in a Court of law are pending in relation to the ownership or possession of any property claimed to be owned by a woman, she may file a complaint under this sub-sections to the Ombudsperson:
Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization may also initiate action under sub-sections (1) in relation to the ownership or possession of a woman’s property, even if proceedings are pending in a Court in respect of that property.
(2) The Ombudsperson shall make a preliminary assessment of the complaint under sub-sections (1), whereafter he may, if the matter requires further probe or investigation, refer the matter to the concerned Deputy Commissioner, who, after calling the record, if necessary, and issuing notices to the complainant and her adversaries, conduct a summary enquiry and submit a report within fifteen days to the Ombudsperson.
(3) If the matter does not require any detailed probe, investigation or recording of evidence, the Ombudsperson may, after calling any record, if deemed necessary, may file a report in the Court of law, in which the case is pending, recommending that the proceedings in the Court may be terminated or put in abeyance unconditionally or subject to any Court order and the Ombudsperson be permitted by the Court to take further proceedings under this Act.
(4) Before filing of the report under sub-sections (3), the Ombudsperson shall call upon the complaint and her adversaries to submit objections, and conduct a hearing and pass order, preferably within thirty days of the hearing as to whether the Ombudsperson may or may not file a report under sub-sections (3).
(5) In case the Ombudsperson passes an order of not filing a report under sub-sections (3), he may advise the complainant to pursue the proceedings in the Court of law and terminate the complaint.
(6) The Ombudsperson upon receiving the report under sub-sections (2), may further conduct such summary inquiry and call for such record as he may deem fit.”
27. There is an apparent disparity between Section 4 and Section 7 of the Act. Section 4 envisages that a woman who is deprived of her ownership or possession of the property may file a complaint to the Ombudsman if no proceedings in a Court of law are pending regarding the property whereas in Section 7 she has been given authority to entertain a complaint in respect of any dispute relating to the property right of woman despite the pendency of claim before the competent Court of law. She is authorized to conduct enquiry, investigation and probe through Deputy Commissioner and can conduct a summary enquiry and after the conclusion of such enquiry, she may file a report in the Court of law in which the case is already pending, recommending that the proceedings in the Court may be terminated or put in abeyance unconditionally or subject to any Court order the Ombudsman be permitted by the Court to take further proceedings under the Act.
28. The scheme of the law under the Enforcement of Women’s Property Right Act, 2019 is aimed to allow the executive limb of the State to conduct a parallel judicial proceeding. This in my humble view is an excessive delegation and would offend the principle of trichotomy of power which is one of fundamental value of our Constitution where under all the three organs of State namely the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within the allotted sphere. It is basis of decisions in some of the leading constitutional cases e.g. “State vs. Zia-ur-Rehman (PLD 1973 SC 49), Registrar vs. Wali Muhammad (1997 SCMR 141) Sharaf Faridi vs. The Federation (PLD 1989 Kar. 404), Government vs. Aziz Ullah Memon (PLD 1993 SC 341), Al Jehad Trust vs. Federation (PLD 1996 SC 324), Liaqat Hussain vs. Federation of Pakistan (PLD 1999 SC 504), Mehram Ali vs. Federation of Pakistan (PLD 1998 SC 1445).”
29. In Durga Hotel complex case (supra), the Supreme Court of India has even observed that when the subject matter of complaint before Ombudsman under the scheme is taken to a Court, tribunal, arbitrator or other competent forum, the subject matter is taken away from the purview of the Ombudsman to an adjudicatory forum under an adversarial system.
30. It was also held in Tariq Pirzada case (supra) that the status of a Court cannot by implication be conferred on the Wafaqi Mohtasib when it cannot deliver a binding judgment. Though, the office of Wafaqi Mohtasib has been created for redressal of the grievances of the citizens but it is neither a Court nor a judicial tribunal within the scope of Article 175 of the Constitution.
31. Our Constitution is based on separation of powers whereby Parliament makes the laws and the judiciary interprets them. However, it remains the duty of the judiciary to examine vires of legislation at the touchstone of the Constitution. Reference may be made to the case of “Shahid Nabi Malik vs. Chief Election Commissioner (PLD 1997 SC 32)”. It was further observed that:
“43. In the case of Chenab Cement Products vs. Banking Tribunal (PLD 1996 Lahore 672) various provisions of the Banking Tribunals Ordinance, 1984 were challenged on the plea that the same were violative of the Article 25(1) and the theory of independence and separation of judiciary enshrined in the Constitution. A full Bench of the Court declared the Sections 4, 6(6) [as amended by Act VII of 1990] and first proviso to Section 9 of the Banking Tribunals Ordinance, 1984 to be unconstitutional as those eroded the independence of judiciary and were hit by Article 175 read with Articles 2A, 4, 8 and Article 25 of the Constitution and further held that the notifications appointing Presiding Officers of the Banking Tribunals, issued under the said Ordinance, were too unconstitutional and without lawful authority and were quashed.
44. In Kilbourn vs. Thompsons (103 US 168; 26 L ED 377], it has been held that because, living under a written Constitution, no branch or department of the Government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the Government, and even those of the legislature in the enactment of law, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void. The house of representatives has the power under the Constitution to imprison for contempt; but the power is limited to cases expressly provided for by the Constitution, or to cases where the power is necessarily implied from those constitutional functions and duties, to the proper performance of which it is essential.
45. The principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy. Thus, its separation and independence has to be secured and preserved as that of superior judiciary. In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and control all Courts subordinate to it. Reference may be made to the case of Government of Sindh vs. Sharaf Faridi (PLD 1994 SC 105). In the case of Dr. Mobashir Hassan vs. Federation of Pakistan (PLD 2010 SC 265) it has been held that the Legislature is competent to legislate but such legislation would not be sustainable if it is contrary to the principle of independence of judiciary as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law.
32. In the case of “Dr. Mobashir Hassan vs. Federation of Pakistan (PLD 2010 SC 265) certain provisions of NRO were strike down being contrary to the principle of independence of judiciary in the following terms:
“81. Thus, it would not be sustainable being contrary to the principle of independence of judiciary, as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. In the case in hand, except an appeal under Section 32 of the NAO, 1999 to the High Court of the Province, no other remedy is available to a convict against his conviction/sentence, to get it set aside.”
33. In the case of “Mehram Ali and others vs. Federation of Pakistan (PLD 1998 SC 1445)” it has been held that Constitution recognizes only such specific Tribunals to share judicial powers with the Courts, established under Article 175 of the Constitution, which have been specifically provided by the Constitution itself, namely, Federal Shariat Court under Chapter 3A, Tribunals under Article 212, Election Tribunals under Article 255 of the Constitution. The same view was reiterated with approval by the Honorable Supreme Court in the case of “Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504)”.
34. In the case of “Messrs Ranyal Textiles v. Sindh Labour Court (PLD 2010 Karachi 27)” it has been observed that under the judicial system as established by the Constitution of the Islamic Republic of Pakistan, there are Courts and there are Tribunals. However, the Tribunals are only limited to the Tribunals specified in the Constitution such as Election Tribunal [Article 225], Administrative Tribunal [Article 212] and Tribunal relating to military affairs [Article 199(5)]. Beside these Tribunals, whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Tribunal or be it called a Commission, for all legal intents and purposes it is a Court and therefore has to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of Courts in Pakistan. Therefore, it was held that the Labour Appellate Tribunal, legally speaking, through denominated as a Tribunal, is a Court: nothing more, nothing less.
35. It was held by the Apex Court in the case of “Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 SC 501)”:
“40. The perusal of above case-law makes it abundantly clear that a tribunal is not always function as a ‘Court’, nor its action is always judicial; however, the determining factor is the nature of the dispute to be resolved by the Tribunal. If the Tribunal has to determine a dispute relating to a right or liability, recognised by the Constitution or law and is under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acts judicially. Besides, whenever judicial power is vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it is a Court. Further, such Tribunals have to be manned, controlled and regulated in accordance with the established judicial principles.
41. It is pertinent to mention here that as the service Tribunals are not only deemed to be a civil Court but also exercise judicial powers, therefore, they are included in the term ‘Court’ mentioned in Article 175 of the Constitution. As such, these Tribunals are to be manned, controlled and regulated in accordance with the law relating to management, regulation and control of Courts in Pakistan.
42. It is to be noted that independence of judiciary has been recognized as a universal human right. In terms of Article 10 of the Universal Declaration of Human Rights, G.A, 1948, everyone is entitled to full equality to a fair and public hearing by an independent and impartial Tribunal. In Pakistan, the independence of judiciary is a basic principle of the constitutional system of governance. The Preamble and Article 2A state that “the independence of judiciary shall be fully secured”. This Court while interpreting Article 175 has further strengthened the principle of the independence of judiciary, by emphasizing the separation of Judiciary from the Executive. The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of “separation of powers” based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. [see Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869)]. Our Constitution is based on separation of powers whereby Parliament makes the laws and the judiciary interprets them. However, it remains the duty of the Judiciary to examine vires of legislation at the touchstone of the Constitution. Reference may be made to the case of Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32).”
36. There is yet an inherent defect in the Act of 2019 as it does not provide the procedure for share of woman when it is jointly held/ owned by her along with other members of her family. Sub-section (2) only envisages that the Ombudsman shall make a preliminary assessment of the complaint filed under sub-section (1) where after he may, if the matter requires further probe or investigation refer the matter to the concerned Deputy Commissioner who shall conduct an inquiry and submit the report. What would be the scope of his inquiry; the law is silent about the same.
37. In the cases when the woman is deprived of her right relating to a property, when her title is clear and the person depriving her of her rights is not co-owner in the suit property then the Ombudsman after a preliminary inquiry can pass an order under Section 5 of the Act of 2019 by putting her in possession of the property. However, the issue would arise when the women as well as other members of her family are joint owner in the disputed property. In the case of any agriculture property which is assessed under the West Pakistan Land Revenue Act, 1967 then the mechanism for partition has been provided under Section 135 Chapter XI of the West Pakistan Land Revenue Act read with Paragraph No. 18 of the Land Record Manual. Similarly, where any immovable property which is outside the scope of West Pakistan Land Revenue Act, under Section 9 of the Code of Civil Procedure, 1908 (“CPC”) the claimant can approach the Civil Court for separation of the share/partition of the disputed property. The mode of delivering judgment in a suit for partition is provided under Order 20 Rule 18 of the CPC. Section 54 of, CPC further envisages where the decree is for partition of an undivided estate, assessed to payment of revenue to Government or for the separate possession of a share of such an estate, the partition of the estate or separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him, whereas, under Order 20 Rule 18 sub-Rule (2), if the dispute relating to separation of share relates to other immovable property and if the partition or separation cannot be conveniently made without further inquiry, the Court may pass a preliminary decree declaring the rights of the several parties in the joint property. In the Act of 2019, no such mechanism has been provided for the determination of the share of each co-owner in the joint property.
38. The Province of Punjab has passed a law known as Punjab Partition of Immovable Property Act, 2012 dealing with the subject of partition of a joint property, however, in the Province of Khyber Pakhtunkhwa, no such law has been passed. Needless to mention that the Partition Act, 1893 does not comprehensively deal with the partition of the joint property. The various case law on the subject of our own jurisdiction in the case of “Muhammad Ayaz and others vs. Malik Zareef Khan and others (PLD 2016 Pesh. 8)” as well as from the Indian jurisdiction in the case of “Shub Karan Bubna vs. Sita Saran Bubna and others”, the following guidelines for a Court seized of a matter relating to a partition of joint property can be enumerated as under:--
Step I.
There should be a complaint/suit by a co-owner for separation of his/her share from joint immovable property.
Step II.
The Court seized of the matter to first determine whether the claimant/complainant is recorded as owner in the joint property.
Step III.
Determine the share of each owner in the joint property which should be evident from the revenue record or other instrument maintained as a public report.
Step IV.
(i) It is not necessary that in all cases a preliminary decree should be passed if the matter does not require detailed probe, however, for separation of share the Court should order for the mode and manner of partition. The actual and physical partition of the property, a commission is appointed to separate the share of each co-owner if the suit property can be partitioned, however, if the joint property is not partitionable, then it can be put to auction.
(ii) In cases where the Court can conveniently and without further enquiry make the partition without the assistance of any commissioner, or where parties agree upon the manner of partition, the Court will pass a single decree declaring the rights of the parties and dividing the suit property by metes and bounds.
(iii) In cases where the Court has passed a preliminary decree declaring the rights of the parties, it is the duty and function of the Court to proceed with the case by fixing dates for further proceedings till division of the property by metes and bounds. Initiation of final decree proceedings does not depend upon an application for final decree.
Provided when the Worthy Ombudsman at the very initial stage shall confirm as to whether the subject matter of dispute is pending before any competent Civil Court then in such circumstances, the Ombudsman shall lay off his hands from the proceedings as the same would be in conflict with Article 175(2) of the Constitution.
Interim Order: -
The Court seized up the partition proceedings may at the initial stage can pass any interim order only to the extent of restraining the parties from alienating the suit property and changing the nature or character of the suit property. However, at the initial stage, no harsh order should be passed depriving any party of the use of the disputed property most particularly when the same is under the occupation of a tenant or any party is running his business in the property.
39. Before parting with this judgment we hold that it is the high time that the issue where a woman is deprived of her property more particularly in inheritance, the Provincial Government should pass an appropriate legislature to safe guard the women rights but within the sphere of the Constitution. This Court is conscious of the fact that in the present legal dispensation and in absence of appropriate legislation, the women are normally deprived of their Shari share in their inherited property and this fact has been noticed by the Apex Court in the case of “Ghulam Qasim vs. Mst. Razia Begum and others (PLD 2021 SC 812).” Para 6 of the said judgment is reproduced as under:
“6. It is extremely regrettable that in the Islamic Republic of Pakistan, male heirs continue to deprive female heirs of their inheritance by resorting to different tactics and by employing dubious devices as was done in the instant case. The shares in the property of a deceased Muslim are prescribed in the Holy Qur’an and Shari’ah. Allah Almighty commands in the Holy Qur’an:
From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large -a determinate share.
Allah (thus) directs you as regards your children’s (Inheritance): to the male, a portion equal to that of two females; if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth.
To deny an heir his/her share in the property left by the deceased is disobedience to Almighty Allah’s decree and those who do so, while they may obtain a temporary benefit in this world, leave themselves accountable to divine punishment in the Hereafter. The verses dealing with the laws of inheritance are followed by two verses, the first which gives good tidings to those who abide by the ‘limits set by Allah followed by the verse prescribing the torment of Hell for those who disobey: ‘But those who disobey Allah and His Apostle and transgress His limits will be admitted to a fire, to abide therein: And they shall have a humiliating punishment.’
40. This judgment be sent to Law and Justice Department of Khyber Pakhtunkhwa for an appropriate measure in the matter.
(Y.A.) Appeal allowed
No comments:
Post a Comment