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Petitioner: Mst. FALAK SHEHNAZ and another VS Respondent: Mst. FARAH DEEBA and others
Court Name: Peshawar High Court Judge(s): Syed Arshad Ali Title: Mst. FALAK SHEHNAZ and another vs Mst. FARAH DEEBA and others Case No.: F.A.O. No. 144-P of 2021 Date of Judgment:2022-12-09 Reported As: PLJ 2023 Peshawar 94 Result: Appeal allowed
JUDGMENT
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, Mat. 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.
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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
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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 justice 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
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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 Ombudsma n 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
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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
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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 Harassm ent 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 properly. (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
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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…
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