2019 PLP 22 (MLD)

ABDULLAH BALOCH, J.

This judgment disposes of Civil Revision Petition No. 63 of 2010 filed by petitioners against the judgment and decree dated 18-11-2009 passed by learned Majlis-e-Shoora, Lasbella at Hub (hereinafter referred as "the appellate Court"), whereby the appeal filed by respondent No.1 was accepted Consequent whereof judgment and decree dated 09-10-2009 passed by the learned Qazi, Lasbella at Uthal (hereinafter referred as "the trial Court") was set aside.

2. Brief facts arising from the instant petition are that the respondent No.1 filed a suit for declaration and permanent injunction in the Court of learned Qazi Lasbella at Uthal against the petitioner No.1 and respondent No.2 with the averments that the respondent No.1 being an agriculturist and owner of about 400 acres land at Tehsil Somiani District Lasbella and after spending huge amount installed tube-wells and planted fruit trees on his lands and adjacent to his lands, there is a Nadi, which is being filled by the torrents during the rainy season due to which the water passed in this Nadi in rainy season lifts the underground water level.

3. It is further submitted in the plaint that in absence of respondent No.1/plaintiff, the petitioner No.1 installed a Crash Plant in the said Nadi and excavating the stones and sand to run the said Crash Plant, due to which big ditches are being made in the said Nadi and while seeing the petitioner No.1/defendant No.1 the respondent No.2 also started installation of a Crash Plant for excavating of stones and sand from the said Nadi due to which the atmosphere is being populated and deteriorating the orchards of respondent No.1/plaintiff as well as changing the composition of Nadi, which will cause damage to the orchards of respondent No.1/plaintiff is also damaging the underground water level. It was further averred that the respondent No.1 /plaintiff has not obtained any permission for installation of Crash Plant, which is against the provisions of Environmental Protection Act.

4. The suit was contested by the petitioner No.1/defendant No.1 by means of filing written statement, however, during the proceedings petitioners Nos.2 to 6 filed an application under Order I, Rule 10, C.P.C. for impleading them as necessary party, which was contested by respondent No. 1/plaintiff, thereafter; amended suit was filed by impleading petitioners Nos.2 to 6 as party to the Suit.

5. Out of the pleadings of the parties learned trial Court has framed the following issues:

6. In support of their claims the parties produced their relevant evidence pro and contra and after hearing the parties the suit of respondents was dismissed.

7. Being aggrieved the respondents assailed the same before the appellate Court, which was accepted and the suit of respondents was decreed vide judgment and decree dated 18-11-2009 as mentioned above in para No.1.

8. Learned counsel for petitioners contended that the suit of respondents was not maintainable as alternate forums under the Special law are available with the respondents to invoke jurisdiction of the said forums and the learned trial Court after proper appreciation of law has rightly dismissed the suit of respondent/plaintiffs and the learned appellate Court erroneously misunderstand the case of respondents and decreed the same, which is result of mis-exercise of jurisdiction, hence the impugned judgment passed the appellate Court is liable to be set aside.

9. Conversely, the learned counsel for respondents vehemently opposed the arguments so advanced by the learned counsel for petitioners.

10. Heard learned counsel for the parties and perused the record, which reveals that the respondent No.1 filed a suit for declaration and permanent injunction against the petitioners/respondents with the averments that the petitioners installed a Crash Plant in the area adjacent to the ancestral agricultural as well as residential properties of the respondents/plaintiffs and due to the operation of Crash Plant the area was badly effected and polluted, which resulted deteriorating the orchards of the respondents as well as the human life and effected the environment at large.

11. On the other hand, the petitioners/defendants vehemently denied the claim of respondents/plaintiffs on the ground that whatsoever they are doing by means of operation of Crash Plant duly leased out the area for excavating of gravel from the Mines and Mineral Department and also obtained license for the said Crash Plant. Even otherwise, the orchards and residential properties of the respondents/plaintiffs are located at distance of 2 kilometers; hence no one came forward except the plaintiffs and by garb of such frivolous civil litigations just wants to disturb the legal business of the petitioners/defendants. It was further contended by the petitioners/defendants that after all no environmental problem being arises; alternate efficacious remedy under the Special Law available with the respondents/plaintiffs to invoke the said forums and the jurisdiction of Civil Court is ousted.

12. Since the moot question between the parties is that due to the operation of Crash Plant the area has been polluted and environmental problem being arisen which affected the human life as well as the agricultural environment being badly effected; though in support of their claims the plaintiffs produced oral evidence, the testimonies are not worth evidence. While in rebuttal it was brought on record by the petitioners/defendants, having prospecting license for excavating of gravel (Bajri and Sand) etc. and also it was came on record from the evidence of petitioners/defendants that the area of the respondents/ plaintiffs is located at a distance of 2 kilometers.

13. Be that as it may, the main question arises out of the pleadings of the parties, that whether in presence of two special forums i.e. Environmental Protection Tribunal constituted under environmental Act and Mines and Mineral Department Government of Balochistan for such purpose and in view of the provisions of "Article 175(2)", of the Constitution of Islamic Republic of Pakistan, 1973 that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". The expression, "jurisdiction in this Article has been used in general and not in technical sense. It signifies, "legal authority, which the Court has to decide matters that are litigating before it, legal authority may be exercised in relation to the subject matter brought before it for its decision or to the parties appearing before it or as to the area over which the jurisdiction extends" for proper assumption to jurisdiction by a Court these conditions must exists. Reliance is placed in the case of "Hitachi Limited v. Rupali Polyester" reported in 1998 SCMR 1618, wherein it was held by the Hon'ble Apex Court that: "The principles of common law or equity and good conscience cannot confer jurisdiction on the Courts in Pakistan which has not been vested in them by law. In this regard reference may be made to clause (2) of Article 175 of the Constitution of Pakistan, which provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law" Similar dictum was also laid down by apex Court in the case of "Muhammad Mohsin Ghuman v. Government of Punjab" 2013 SCMR 85 wherein it was held that: "The question of applicability of General and Special Laws was also considered by the Privy Council in Montreal Corporation v. Montreal Industrial Land Company (AIR 1932 PC 252) wherein it was laid down as follows:-- "When the legislature had given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms." The afore-referred view was reiterated in Tahira Haq v. A.R. Khan Niazi, Additional Commissioner (Revenue) Multan (PLD 1968 Lah. 344) and it was held as under:-- "The principle that the general law would not prevail over a specific enactment is now well-settled and one may refer in this behalf to AIR 1921 Lah. 280; AIR 1941 Lah. 364; AIR 1936 All. 222; AIR 1932 PC 252; AIR 1950 Mad. 711; AIR 1934 Sind 89; AIR 1934 Bom. 16 and AIR 1936 Nag.

180. The principles which emerge from these authorities are that where special provision is made in a special statute that special provision excludes the operation of a general provision in the general law".

14. The relief sought by the plaintiffs/respondents is related with special laws as such cannot he claimed under declaratory Suit in exercise of Civil jurisdiction the special forums constituted under the special laws are over riding in nature for redressal of such grievance of respondents the Civil Court cannot exercise its jurisdiction to resolve the environmental disputes in its civil jurisdiction.

15. In view of the above, judgments of Hon'ble Supreme Court of Pakistan the learned trial Court has rightly dismissed the suit of the respondents/plaintiffs, but in contrary the learned appellate Court has mis-exercised its jurisdiction while coming to a wrong conclusion decreed the suit of the plaintiffs/respondents, which is result of mis-reading, non-reading and mis-appreciation of law, hence not sustainable. Consequently the petition is accepted and the impugned judgment and decree dated 18-11-2009 passed by learned appellate Court is hereby set aside and the judgment and decree dated 09-10-2009 passed by learned trial Court is maintained. However, the respondents/ plaintiffs are at liberty to approach the proper forum for redressal of their grievance. Parties are directed to bear their own cost. ZC/69/Bal. Revision allowed.