Sheikh ABDUL HAKEEM Versus SHAMSUDDIN

AKHTAR ZAMAN MALGHANI, J:--- Briefly stated, facts of the case are that petitioner instituted a suit for declaration and permanent injunction in the Court of Qazi Bori/Sanjavi with the following prayers:--

2. The suit was contested by the respondent by way of filing written statement. Out of the pleadings of parties following issues were framed:

3. The learned Qazi after recording evidence pro and contra dismissed the suit vide judgment and decree dated 13th March, 1999, however; on appeal filed by the petitioner Majlis-e-Shoora, Loralai after setting aside judgment and decree of Qazi Court remanded the suit with the direction to decide the issue No.7. After remand, Qazi Court again dismissed the suit on 30th June, 1999. Appeal filed by the petitioner against said judgment and decree was also dismissed by Majilis-e-Shoora, Loralai vide judgment mid decree dated 26th August, 1999. Feeling dissatisfied, the petitioner preferred revision petition being No.291 of 1999 before this Court, which was partly allowed and after setting aside judgment and decree of Majlis-e-Shoora, the matter was remanded to it for re-writing of judgment after affording opportunity of hearing to the parties and additional evidence, if deemed necessary.

4. On remand, the petitioner produced Patwari with record of mutation and Naqsha Shajra, whereas respondent did not produce any evidence. The learned Majilis-e-Shoora also appointed Tehsildar as local commission who inspected the site and submitted his report dated 28th June, 2000. Objections raised by the petitioner over the report were overruled by order dated 23rd August, 2000 which order was challenged before this Court in revision petition No.266 of 2000 which was partly allowed and order dated 23rd August, 2000 was set aside with the direction that inspection be made by Majlis-e-Shoora itself.

5. The site inspection was carried out by member of Majilis-e-Shoora, whereafter; Majlis-e-Shoora disposed of the appeal in following terms vide impugned judgment and decree:-

(i) Municipal Committee was necessary party.

(ii) Qazi Court has no jurisdiction as the value of subject matter was more than Rs.50,000 for which Majlis-e-Shoora has jurisdiction.

(iii) Majlis-e-Shoora could not hear the suit after impleadment of Municipal Committee as in such case jurisdiction vests in civil Court.

(iv) The judgment and decree of Qazi, Bori is set aside and plaint is returned to the plaintiff, who can institute fresh suit in the Court of competent jurisdiction, if he desires so.

6. I have heard learned counsel for the parties. Learned counsel for the petitioner vehemently contended that the Article 2(1) of the Balochistan Civil Dispute (Shariat Application) Regulation, 1976 did not relate to the jurisdiction of Qazi but it provides that the disputes to be adjudicated upon by Qazi Court as well as Majlis-e-Shoora shall be decided in accordance with Muslim (Shariat) Law and a proviso has been added to the said subsection, wherein; it has been provided that the said subsection would not apply to the cases by or against the Federal Government or a Provincial Government or a Local Authority or a Public Corporation or a Public Servant acting in the discharge of his duty, which means that the rule of decision provided in sub-Article (1) would not be applicable where one of the parties is Federal Government, Provincial Government, Local Authority or a Public Corporation or a Public Servant and it is not the intention of Article-2 that Qazi has no jurisdiction nor the said proviso could be read in Article 4 conferring jurisdiction upon the Court of Qazi and Majlis-e-Shoora for deciding the cases instituted under Balochistan Civil Dispute (Shariat Application) Regulation, 1976. He further contended that the said -proviso is in form of exception to the sub-Article (1) of Article-2 and is restricted to that Article alone and could not be referred to Article-4 while deciding the question of jurisdiction. He further contended that after devolution plan Municipality and Municipal Corporation converted to union councils which are not Local Authority or Public Corporation, as such; the Qazi Court has jurisdiction to entertain the suit. He next argued that there was no evidence which could suggest that the road was being constructed by any local authority or public corporation, as such; the judgment and decree of Majlis-e-Shoora was liable to be set aside.

On the other hand, learned counsel for respondent contended that Qazi Courts have jurisdiction only to such disputes which are to be decided on the basis of Muslim Law, as such; proviso to Article-2(1) is to be read in conjunction with Article-4 providing forums for adjudication of such disputes.

7. I have carefully considered the contentions put forth by the parties' learned counsel. It may be observed that according to the preamble Balochistan Civil Dispute (Shariat Application) Regulation, 1976 was promulgated in order to provide forums for adjudication of certain civil disputes in the tribal areas of the Balochistan according to Muslim (Shariat) Law. Article-2 provides that all the disputes of civil nature where parties are Muslim shall be decided in accordance with Muslim (Shariat) Law, whereas, under Article 4 of the Regulation, 1976 the Qazi Courts have been conferred with the original jurisdiction of Court in respect of disputes, wherein; value of the subject does not exceed Rs.50,000. The word "dispute" used in both the Articles has synonymous meanings and it could not be said the word `dispute' referred in sub-Article (1) of Article 2, was used in both the Articles in different meaning, which means the Qazi Court has jurisdiction only in such civil disputes, which are to be decided in accordance with Muslim (Shariat) Law. The legislature in their wisdom excluded the cases by or against Federal Government or Provincial Government or Local Authority or a public corporation or a public servant acting in discharge of his duty; to be decided in accordance with Muslim (Shariat) Law by adding proviso to Sub-Article (1) of Article 2. The heading prefixed to Article 4 further clears the jurisdiction of said forums, which reads as "Courts for adjudication of disputes under this Regulation." Though, heading of a section could not control clear language. of the section, but it is cardinal rule of interpretation that a due consideration must be give to the heading for the purpose of arriving at a conclusion as to what according to the legislature was the purpose of enacting the section. Thus, limited use of the heading as an aid to construction can be made in order to clear up obscurities and to read mind of the legislature. Similarly; the proper function of a proviso to a section is to except and deal with a case which would otherwise fall within the general language of the main enactment (AIR 1965 SC 1296 referred). The proper way to regard a proviso is as a limitation upon the effect of the principal enactment, where the section deals with particular field and the proviso excepts or takes out or carries out from the field a particular portion. A proviso is not independent of section, its object is to carve out from the main section a class or category, to which the main section does (sic) apply. In the judgment reported in AIR 1957 SC 281, it was observed that a proviso must be considered with relation to principal matter, to which it stands as a proviso. Similarly; in the judgment reported in AIR 1955 Madras 410, the Hon'ble Judges held that the object of the proviso sometimes, however, is to curtail to some extent the very wide jurisdiction conferred upon Court by the main body of the section. When a special tribunal is constituted under a statute, its jurisdiction depends upon the specific provisions of the statute and it may be limited by conditions as to its constitution, as to the persons whom or to offences which it is competent to try, and as to the orders which it is empowered to make or by other conditions which the law makes essential to the validity of its proceedings and orders. As already observed Regulation 1976 was promulgated in order to resolve the disputes of civil nature between the Muslim parties in accordance with Muslim (Shariat) Law, and Article 4 provides forums for resolution of such disputes in accordance with rule of decision provided in Article 2(1) which are Qazi Courts and Majilis-e-Shoora. But the cases by or against the Government, Local Authority. Public Corporations or public servant while acting in discharge of his duty have been excluded from such rule of decision by adding proviso to Article 2(1), which Article has to be read in conjunction with Article 4 being interrelated. The combined effect of both the Articles would be that Qazi Courts and Majlis-e-Shoora have no jurisdiction to try the suit, wherein; Government, Federal or Provincial, or Local Authority, or a Public Corporation or a Public Servant in his official capacity is party.

8. Coming to the next contention of learned counsel with regard to meaning of Local Authority, it may be noted that according to sub-section (28) of section 3 of the General Clauses Act, 1897, Local Authority means a Municipal Committee, 'District Board, Body of Municipal Committee or other authority legally entitled to or entrusted to by the Government with control or management of a _Municipal or local fund, therefore, even after the devolution plan, the Local Government including Union Councils having been entrusted by the Government with the control and management of local funds are Local Authority within the meaning of proviso to Article 2 (1) of the Regulation, 1976 and no case by or against such Local Authority could be instituted in the forums provided under the Balochistan Civil Disputes (Shariat Applications) Regulation, 1976.

9. As regards merits of the case, it may be noted that the petitioner instituted a suit for declaration and permanent injunction for restraining the respondents from illegally converting the property into public thoroughfare by constructing metal road over it, as according to the petitioner, the said property was owned by him, whereas; it was plea of the defendant that the road was being constructed by the Municipal Committee and no effective decree could be passed in its absence being a necessary party to the proceedings. The learned Majlis-e-Shoora after considering the respective contentions and certificate dated 19th December, 1996 issued by Chief Officer, Municipal Committee came to the conclusion that the metal road was being constructed by Municipal Committee through a contractor namely Lal Muhammad, which finding being correct and legal calls for no interference by me.

Along with revision petition, the petitioner has filed an application under Order. VI, Rule 17 read with sections 107 and 151, C.P.C. for amendment of valuation clause of the plaint, which application was considered by me and I am not inclined to allow such amendment, because even after amendment of valuation clause, the Qazi Court would have no jurisdiction to entertain or adjudicate upon the dispute, as it has no jurisdiction, in the matters where the Government or local authority is a party.

10. Similarly; the learned counsel has also filed an application for production of additional evidence on the ground that after new local government setup, Tehsil Nazim has issued a certificate that property in dispute was situated outside the Municipal limit, as such; the petitioner be allowed to produce Nazim Tehsil or his representative, representative of Municipal Committee, Loralai and revenue record through Patwari.

The perusal of case file indicates that a certificate issued by the then Deputy Commissioner, Loralai on 4th September, 2000 has been appended with the petition at page No.125 showing that the Khasra Nos.462/486 is situated outside the limits of Municipal Committee, Loralai, however; at page No.129 and page No.143, there are two other certificates issued on 2nd April, 2002 and 2nd May, 2002 by Tehsil Nazim and. Tehsil Municipal Officer respectively showing that the property in dispute is situated within the precinct of Tehsil Municipal Administration, Bori, though it was previously not included in the limits of Municipal Committee, Loralai. Thus after coming to the conclusion that local authority is a necessary party in the case and the Courts setup under the Regulation, 1976 have no jurisdiction in the matter, no useful purpose would be served for allowing the petitioner to produce additional evidence, as such; the application is dismissed.

For the foregoing reasons, I find no merits in the instant petition, which is dismissed accordingly.

M.H./34/Q Revision dismissed.

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