P L D 2009 Lahore 235 (PLP)

KAZIM ALI MALIK, J.--Brief facts giving rise to this Constitutional petition may be given first: Mst. Subhal Mai, respondent made an application before Addl. A Sessions Judge/Ex-Officio Justice of the Peace, Jam Pur, District Rajanpur, against Muhammad Habib, petitioner herein with an allegation that she inherited five marlas plot bearing Khewat No.722 Chah Talhiwala, located in revenue estate of Basti Randhan, Tehsil Jampur from her husband; that on 9-7-2008 Muhammad Habib, petitioner forcibly occupied the above said plot and raised construction over it and that-she unsuccessfully approached him to get back possession of the plot. With the above assertion Mst. Subhal Mai, respondent prayed for restoration of possession of the plot. For facility of reference prayer of Mst. Subhal Mai, respondent laid before Ex-Officio Justice of the Peace is reproduced below in verbatim:--

2. Ex-Officio Justice of the Peace obtained a report from the revenue patwari, which was to the effect hat Muhammad Habib petitioner was in illegal occupation of the disputed plot. Subsequent to this, the Ex-Officio Justice of the Peace, Jampur took cognizance of the dispute as an Addl. District Judge, Jampur and passed the following order, now under challenge at the instance of Muhammad Habib, petitioner: "Counsel of the complainant. Arguments heard. Record perused. As per report of Patwari Halqa, the respondent is in illegal possession of the plot of the complainant. Hence, the D.D.O.(R) Jampur is directed to get the possession of the said plot delivered to Mst. Subhal Mai, within a period of one month under intimation to this Court. Disposed of. Be consigned."

3. It is a matter of record that Mst. Subhal Mai, respondent laid her complaint for restoration of possession of disputed plot before Ex-Officio Justice of the Peace, Jampur. Later on the Ex-Officio Justice of the Peace chose to exercise the powers of Addl. District Judge, Jampur. For the sake of arguments, if it is believed for a moment that Muhammad Habib, petitioner forcibly occupied the disputed plot owned by Mst. Subhal Mai, respondent, even then there was no legal and factual justification to invoke administrative and ministerial jurisdiction of the Ex-Officio Justice of the Peace. This Court has held in Khizar Hayat's case PLD 2005 Lah. 470 that powers and duties of Ex-Officio Justice of the Peace as provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction, which can be termed as judicial in nature or character. Functions and duties to be performed by an Ex-Officio Justice of the Peace are only administrative and purely ministerial in character. The role statutory defined for a Justice of the Peace, by and large, is as follows:-- (a) to make arrest in circumstances mentioned in sections 54 and 55, Cr.P.C. and to hand over custody of the arrested person to the Officer Incharge of the nearest police station; (b) to call upon any member of the police force on duty to aid in arresting or preventing the escape of a person involved in commission of a cognizable offence; (c) to call upon any member of the police force on duty to aid him in the prevention of crime, breach of the peace or disturbance of the public tranquility; and (d) to issue a certificate of identification of a person, to verify any document and to attest any document.

4. An Ex-Officio Justice of the Peace i.e. Sessions Judge and nominated Addl. Sessions Judge in the District/Sessions Divisions has the powers to issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police official to another and for neglect, failure or excess committed by a police authority in relation to its functions and duties. At the cost of repetition it is note worthy that justice of the peace or Ex-Officio Justice of the Peace is not a court as envisaged under section 6 of the Cr.P.C. or the relevant provisions of the C.P.C. The available record does not show as to how and with what authority the learned Addl. Sessions Judge Jampur, entertained the request of Mst. Subhal Mai, respondent as Ex-Officio Justice of the Peace, particularly when it is manifest from a bare perusal of sections 22-A and 22-B, Cr.P.C. that the controversy between Mst. Subhal Mai respondent and Muhammad Habib, petitioner does not fall within the legally defined domain of Justice of Peace or Ex-Officio Justice of the Peace.

5. Allegedly, Muhammad Habib, petitioner forcibly occupied the disputed plot owned and possessed by Mst. Subhal, respondent. I have already mentioned in the preceding paragraph that Ex-Officio Justice of the Peace took cognizance of the controversy as Addl. District Judge after having received report from the Patwari to the effect that Muhammad Habib, petitioner was in illegal occupation of the disputed plot. In such a situation legal remedy available to Mst. Subhal Mai, respondent was to invoke jurisdiction of Civil Court in terms of section 8 or section 9 of the Specific Relief Act, 1877 which read as under: - "

8. Recovery of specific immovable property.--A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil procedure.

9. Suit by person dispossessed of immovable property.--If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

6. Here, I must say that in case Mst. Subhal Mai, respondent was dispossessed from her owned plot by Muhammad Habib, petitioner, she should have filed a suit under section 8 of the Act, on the basis of her entitlement. In case she was not possessed with title or interest in the plot then speedy remedy for restoration of possession was available to her under section 9 of the Act. Instead of filing a suit for possession or suit for restoration of possession under section 8 or section 9 of the Specific Relief Act, Mst. Subhal Mai, respondent chose to invoke the jurisdiction of the Ex-Officio Justice of the Peace. Her petition should have been dismissed at limine stage asking her to avail of remedies permissible under the law. The learned Addl.. District Judge in fact passed a decree for recovery of possession of immovable property in an application without trial of the dispute in terms of section 9 of the Specific Relief Act and thus encroached upon the functions of Civil Court.

7. Another remedy available to Mst. Subhal Mai, respondent was to file a private complaint under section 3 of the Illegal Dispossession Act, 2005. The available record does not .tell as to what were the circumstances, which persuaded the learned Additional District Judge to allow Mst. Subhal to prosecute her case and cause touching immovable property before wrong forum over and above the law governing the subject.

8. I have minutely gone through the Code of Criminal Procedure, 1898, Illegal Dispossession Act, 2005, Code of Civil Procedure, 1908 and the Specific Relief Act, 1877. Despite a microscopic examination of the above said enactments, I could not find any provision of law, which may empower or authorize an Ex-Officio Justice of the Peace or Addl. Sessions Judge or Addl. District Judge to pass a decree for possession of immovable property summarily on an application. In fact the learned Addl. District Judge adopted a self styled procedure unwarranted in law. The way, the learned Addl. District Judge passed the impugned order provides a basis to say that he did not have adequate knowledge of Criminal and Civil Law governing the subject. Be that as it may, fact remains that the impugned order being illegal and without jurisdiction cannot be allowed to remain in field.

9. For the foregoing reasons, I accept this petition, set aside the impugned order and consequently dismiss the application of Mst. Subhal Mai, respondent, however, with the clarification that she would be at liberty to agitate her case and cause, if any, in accordance with law before the competent forum. H.B.T./M-32/L Petition accepted.