2006 PLP 479 (CLC)

MUHAMMAD KHALID ALVI, J.

With the concurrence of the learned counsel for the parties, this petition is treated as "Pacca Case".

2. Brief facts of the case are that the respondent filed a petition under section 9 of the Muslim Family Laws Ordinance, 1961 against the petitioner claiming her maintenance allowance before the Chairman, Union Council Ward No.190, Zaman Park Sanda Kalan, Lahore, which later on fell in the jurisdiction of Union Council No.85 Sanda Kalan, Lahore. Respondent feeling grievance against the Council filed a transfer application before the District Officer Revenue, who vide order, dated 21-6-2002 transferred the petition to Union Council No.82 Islampura. Arbitration Council of U.C. 82 after hearing the parties vide order, dated 5-8-2004 granted maintenance allowance to the respondent at a rate of Rs.3,000 per month with effect from 28-1-2001 to 19-8-2003. This order was assailed by the petitioner before the District Officer Revenue, Lahore, who vide order, dated 2-6-2005 dismissed his revision petition, hence, this petition. 2-A. It is contended by the learned counsel for the petitioner that under Rule 3(c) of the Muslim Family Laws Rules, 1961 jurisdiction to adjudicate application under section 9 of the Muslim Family Laws Ordinance, 1961 only vests where the wife resides. Admittedly, the respondent/wife resides in the area of Union Council No.85 Sanda Kalan; therefore, jurisdiction of arbitration council of Union Council No.82, Islampura was not available. It is further submitted with reference to Rule 6-A that the transfer power of the District Officer Revenue is only limited to the extent of changing the Chairman of the Union Council for the purpose of the said case in the same Union Council but cannot be transferred to any other Union Council.

3. On the other hand, learned counsel for the respondent has tried to defend the impugned orders.

4. I have considered the arguments of the learned counsel for the parties.

5. The relevant provision of the Muslim Family Laws Rules, 1961 are reproduced for ready reference:-- "Rule

3. The Union Council which shall have jurisdiction in the matter for the purpose of clause (d) of section 2 shall be as follows, namely; (c) in the case of an application for maintenance under section 9, it shall be Union Council of the Union or Town where the wife is residing at the time of her making the application, and where application under that section is made by more than one wife, it shall be the Union Council of the Town or Union in which the wife who makes the application first is residing at the time of her making the application. 6-A(1) Wherever, it is made to appear to the Collector, whether on the application of a party to the proceeding or on his own information, that the Chairman is interested in favour of a party to any proceedings before the Arbitration Council or is prejudiced against any such proceedings, the Collector may, after giving notice to all the parties to the proceedings, appoint any other member of the Union Council as the Chairman for purposes of this Ordinance, and pending the passing of such order may stay the proceedings before the Arbitration Council. (2) A Collector passing an order under this rule shall record in writing his reasons for the same." According to Rule 3(c) the Union Council where the wife resides has the jurisdiction to entertain and adjudicate an application under section 9 filed by her. There is no denying the fact that originally the application was entertained by Union Council No.85 Sanda Kalan where the respondent was residing. This application was transferred on an application filed by the respondent to Union Council No.82, Islampura by order of the District Officer Revenue, Lahore while exercising his power under Rule 6-A. Under Rule, 6-A the District Officer Revenue could only change the Chairman of the Council nominating some other member of the same Union Council to be Chairman of the Arbitration Council for that particular case but he had no jurisdiction to transfer an application under section 9 from one Union Council to the other Union Council; therefore, decision given by Union Council No.82 Islampura dated 5-8-2004 was without lawful authority having no jurisdiction. Resultantly, order of the District Officer Revenue dated 2-6-2005 is also a nullity in the eye of law. As a result thereof this petition is allowed. Both the above said orders are declared to be illegal and without lawful authority. Resultantly the application filed by the respondent shall be deemed to be pending with the Arbitration Council of Union Council No.85 Sanda Kalan and shall be decided afresh in accordance with law. However, it is expected that since the matter had already taken sufficient time the process shall be finalized within a period of five (5) months. M.H./W-1/L Case remanded.