Humayun Khan
PESHAWAR: A divisional bench of Peshawar High Court (PHC) consisting of Justice Laal Jaan Khattak and Justice Ishtiaq Ibrahim has observed that Chief Justice PHC will issue administrative orders regarding jurisdiction of lower/trial judiciary and adjourned further hearing for fortnight, on Wednesday.
The divisional bench has admitted Government of Khyber Pakhtunkhwa petition in which the Government has approached the court pointing out repeated excess of jurisdiction being committed by Civil and District Judges when it came to disputes in the mines and minerals sector, causing loss to the tune of billions to the Government.
Additional Advocate General (AAG) Amir Farooq appeared on behalf of the Government of KP whereas Barrister Asad-ul-Mulk appeared on behalf of the Minerals Department. It was pleaded by Barrister Asad-ul-Mulk that whilst exercising its supervisory jurisdiction over lower courts, the High Court should terminate judicial proceedings before Civil and District Courts related to matters which fall within the exclusive domain and jurisdiction of the quasi-judicial hierarchy created under the Khyber Pakhtunkhwa Mines and Minerals Act 2017 as the same were coram-non-judice.
The AAG stated that Civil and District Courts throughout Khyber Pakhtunkhwa had effectively assumed jurisdiction and on scores of occasions issued injunctions leading to a quagmire and practical interference with the statutory functions of the functionaries under the ibid Act, causing tremendous loss to the exchequer.
Citing Professor H.L.A Hart’s book the Concept of Law it was argued by Barrister Asad-ul-Mulk that a Courts order even when defective or bereft of jurisdiction has to be obeyed by state functionaries, unless and until that order is recalled by the same or set-aside by a superior Court. He expounded saying that while the Minerals Department readily filed applications under Order VII Rule IX of the CPC for the return of the plaints, the lower Courts kept such applications pending for months before deciding them. Thus the Government and the Minerals Department had been constrained to approach the High Court to rectify a systematic flaw which was causing loss in billions to the Provincial Government.
Barrister Asad-ul-Mulk explained that sub-section (d) and (i) of Section 56 of the Specific Relief Act 1877 inhibited Civil and District Courts from granting stay orders against the Government, and Article 111 and 112 (1)(a) of the Qanun-e-Shahadat Order 1984 obligated the Courts to take notice of the same. But unfortunately there was repeated dereliction on part of the lower Courts which warranted rectification on part of the High Court.
After the break Justice Laal Jaan divulged that the full Court had been consulted and according to the consensus which emerged, the Chief Justice of the Peshawar High Court would issue appropriate administrative orders to the subordinate judiciary in respect of the matter within two week. The case was then adjourned for two weeks in which time the Judges expressed optimism that the needful would be done by the High Court and the Government would be spared the rigors of unnecessary and multifarious litigations.
Chief Secretary appears before court
F.P. Report
PESHAWAR: Chief Justice Peshawar High Court (PHC) Justice Qaiser Rashid remarked that recent floods had destroyed districts of Mardan and Malakand, also observed that the court stressing on actions against crashing and mines on riversides to avoid such situation. The chief justice inquired regarding actions against culprits for constructing hotels and crushing plants on riverbanks while added that situation become wretched due to irrigation& mining departments along with attitude of Tehsil Municipal Officers behavior, on Wednesday.
Advocate General Shumail Ahmad Butt, Chief Secretary Khyber Pakhtunkhwa Shehzad Bangash, Secretary Forest Abid Majeed, Director General Gilayat Khalid Mahmood, Commissioner Hazara Mutahir Zeb, Commissioner Malakand Shoukat Yousafzai, Director General mines Muhammad Naeem, Barrister Asad-ul-Mulk, Babar Yousafzai Advocate, Additional Advocate General Syed Sikandar Shah, Nasir Naeem Advocate, Secretary Irrigation Muhammad Ayaz and DG Environment Protection Agency Anwar Khan along with other high-ups appeared before divisional bench comprising of Chief Justice PHC Justice Qaiser Rashid and Justice Ijaz Anwar in Shamsi Builders along with other environmental cases.
During hearing Chief Justice inquired about implementation of court’s order regarding protection of rivers and steps taken because rivers are destroyed due to illegal excavation, the Chief Secretary informed that government is following court’s direction and a task force is established while Rs2 billion granted to NESPAK to conduct study in this regard. Chief Secretary added that recent flood has also delayed conclusion of study for four months because river’s bed filled while effort is continued for establishment of River Protection Authority (RPA).
However, Chief Justice remarked that all the practices are made due to commission’s mafia and added that thousand years old forts and palaces are conserved on riverbanks in foreign countries. He added that floods in 2010 has made pitiful situation while court had concerned regarding such situation once more.
The chief justice Qaiser Rashid remarked while directing Chief Secretary that ends political pressure on competent high-ups like commissioners Hazara and Malakand along with secretary forest then they will also be able to dealt with the situation while AG Shumail Butt claimed that there is no pressure on officers and Shehzad Bangash agreed with his claim by stating that in last 10 months competent officers have been deployed in the field.
Chief Secretary Khyber Pakhtunkhwa claimed that government is committed to bring change at least at high level if it is not possible on gross root level while AG Shumail Butt informed that progress is continued four projects identified by court including irrigation system and Sokikenari Dam on previous hearing.
Moreover, Chief Justice remarked that hotel industry has polluted all rivers while no one bringing them for accountability while Chief Secretary claimed that PC1 of RPA is completed and it will be concluded after submission of NESPAK’s study. He also assured that competent officers must not have to face any political pressure while chief justice observed that secretary irrigation is responsible for illegal excavation. Chief Justice while directing Secretary Irrigation remarked that act irrigation’s department is a misfortune and added that only former officials but you are also responsible while adjourned further hearing.
