PESHAWAR: The Peshawar High Court ruled that the Provincial Ombudsperson lacks competent jurisdiction to grant stay orders in suits pending before a competent civil court and to adjudicate upon questions of property title.
In a 90-page verdict, single-member bench of the PHC comprising Justice Mohammad Naeem Anwar has ruled: “The ombudsperson’s jurisdiction is summary and limited. Complicated and disputed questions of ownership fall within the exclusive jurisdiction of civil courts.”
Several of the powers exercised by ombudsperson have been declared as excess of jurisdiction and contrary to provisions of different laws.
In several of the appeals, against the ombudsperson orders of partition of a property in question, the bench ruled: “Khyber Pakhtunkhwa Enforcement of Women’s Property Rights Act, 2019, nowhere authorises the ombudsperson to direct partition of property. The procedure adopted and directions issued in these cases are inconsistent with the provisions of Land Revenue Act, 1967.”
Rules the forum lacks jurisdiction in complicated ownership issues, partition of properties
The bench directed that in cases where civil or family litigation was pending or had been decided by a competent court, the matter must be taken to its logical conclusion before such forums.
“The learned ombudsperson, not being a court of competent jurisdiction, could neither stay proceedings of a suit pending before the competent civil court nor adjudicate upon questions of titles,” the bench ruled.
The bench has few days ago accepted 83 appeals filed against orders of provincial anti-harassment ombudsperson and has now released a 90-page detailed judgement wherein it has discussed in detail multiple judgements of superior courts as well as different laws including KP Enforcement of Women’s Property Rights Act, 2019, under which the ombudsperson is empowered to hear complaints, Code of Civil Procedure, Land Revenue Act, 1967, KP Partition Act, 1967, and Qanoon-i-Shahadat Order, 1984.
The bench ordered that the parties, whose matters were already pending before civil/family courts or in execution before revenue officers, should pursue their cases or execution petitions there on presentation of a certified copy of that judgement.
“In cases where courts have already passed judgements but complainants, subsequently, filed complaints before the ombudsperson, resulting in the stay of execution proceedings, or where execution petitions have not been filed, the parties may revive their earlier execution petitions or file fresh ones,” the bench directed.
It merits a mention here that since enactment of the law in 2019, women having interest in property, whether through inheritance, based on their Nikah Nama, transfer deeds, or otherwise have approached ombudsperson, seeking redress against alleged dispossession of properties.
The bench divided the appeals in four categories. The first category includes cases in which complaints were filed against a person, who had no title or interest in the property, and with respect to whom no determination had been made by a court of competent jurisdiction.
The second category includes cases where prior to filing of complaints, disputes concerning immovable or movable property were either sub judice before, or had already been adjudicated upon by, a civil or family court.
In the third category, those cases were placed wherein complainant sought possession of her inherited share from other co-owners. The fourth category includes all those remaining disputes that did not fall in the first three categories.
KP Advocate General Shah Faisal Uthmankhel also conceded before the bench certain provisions of the said Act suffered from deficiencies and required legislative amendments. He conceded that ombudsperson lacked jurisdiction to direct deputy commissioner to divide property or determine proportionate compensation between co-owners.
“The object of the Act is to protect and secure women’s rights to ownership and possession of property , and to provide a speedy and effective redressal mechanism for women, who are illegally deprived of such rights through fraud, coercion or illegal means and to ensure that such rights are not violated through harassment, coercion, force or fraud, and to provide an effective legal remedy in matters connected or incidental thereto,” the bench observed.
The bench pointed out that Section-4 of the Act clearly provided that ombudsperson might exercise jurisdiction only if no proceedings were pending in respect of the property in question. It added when case was pending, ombudsperson might conduct a preliminary assessment and, if necessary, direct the deputy commissioner to hold a summary inquiry.
“If no detailed probe or recording of evidence is required, the ombudsperson may pass an appropriate order. However, where the matter involves complicated questions of fact or law, the ombudsperson’s jurisdiction stands barred,” the bench ruled.
“Section-6 of the Act further limits ombudsperson’s jurisdiction; if the matter requires in-depth investigation, detailed evidence, or intricate adjudication, the ombudsperson must refer the matter to civil court along with all relevant material.”
“In most of the cases, the legal question regarding status of property, authenticity of documents, pleas raised by parties involves intricate question of law and fact which do require complete trial and decision therein in accordance with law by the court of competent jurisdiction,” the bench ruled.
“It is indisputable that the proceedings before ombudsperson are summary in nature and courts have always subscribed that through summary nature proceedings the intricate question of law and facts could not be adjudicated upon,” the bench said.
The court ruled that ombudsperson had no inherent jurisdiction to resolve disputed title, complex property rights or issues requiring detailed evidence such as examination of witnesses, demarcation, partition or verification of competing claims. “Where such contested matters arise, the competent forum is civil court under sections 9 and 42 of Code of Civil Procedure.”
The bench pointed out that another legal flaw in the proceedings conducted before the ombudsperson through complaints was that in most of the cases all the co-sharers were not impleaded in the complaint.
