MAQBOOL KHAN vs ASSISTANT COMMISSIONER, LOWER KURRAM, SADDA S — 2024 CLC 518 PESHAWAR-HIGH-COURT

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MAQBOOL KHAN VS ASSISTANT COMMISSIONER, LOWER KURRAM, SADDA S. 3---Referring authority---Powers under Khyber Pakhtunkhwa alternate Dispute Resolution act, 2020 ('the aDR act, 2020'), exercise of---Scope---Consent of the party, requirement of---Petitioners (inhabitants of the house-in-dispute) invoked constitutional jurisdiction of the High Court against the order passed under the provisions of Khyber Pakhtunkhwa alternate Dispute Resolution act, 2020, rendered by the concerned assistant Commissioner (respondent), who directed Local Police/Officials (respondents) for dispossessing them (petitioners) from house-in-dispute and possession of the same be retained by local Police---Validity---Record revealed that on the touchstone of conditions required for the powers to be exercised under the provisions of the Khyber Pakhtunkhwa alternate Dispute Resolution act, 2020, the impugned order was not justified on a number of scores--- First of all, the required consent of petitioners, (whereunder respondents should have been authorized) could not be found in the case---although it was asserted by the respondents that petitioner had earlier given his consent for private members Jirga but when matter had subsequently been taken up by respondent/assistant Commissioner and consent of petitioners had been solicited, they had not given such consent but had asked for some time to consult the issue with other co-tribesmen---In such a situation the assistant Commissioner (respondent) could not show that petitioners had given their consent at the time of issuance of impugned order--- any earlier consent stately acquired from petitioners could not be deemed sufficient for authorizing respondent/assistant Commissioner for all times to make any injunctive order in respect of disputed premises---Impugned order was also not for maintaining status quo but for altering status quo---It had been directed through impugned order that possession of the house should be taken from its inhabitants and retained by local police---an order of such nature could never be deemed authorized under S.3(5) or any other provision of the aDR act, 2020 or other laws---Order also did not indicate 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---Impugned order had simply been issued on direction of a private member Jirga and even no unanimous decision of Jirga was there in field---On all scores the impugned order was not found justifiable, which required interference of High Court---Constitutional petition was allowed, in circumstances.

MAQBOOL KHAN vs ASSISTANT COMMISSIONER, LOWER KURRAM, SADDA S — 2024 CLC 518 PESHAWAR-HIGH-COURT

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