2019 M L D 22
[Balochistan]
Before Abdullah Baloch, J
Mir FATEH MUHAMMAD and 5 others ---Petitioners
Versus
MUHAMMAD ALAM and another ---Respondents
Civil Revision No.63 of 2010, decided on 19th September, 2018.
Constitution of Pakistan ---
----Art. 175(2) ---Installation of Crash Plant for excavating stones ---Suit for declaration
and permanent injunction in an environmental dispute ---Maintainability ---Environmental
dispute, resolution of ---Special forum, availability of ---Jurisdiction of Civi l Court exercised
for resolution of environmental dispute ---Scope ---Plaintiffs filed suit with regard to
environmental disputes which was dismissed by the Trial Court but Appellate Court
decreed the said suit ---Contention of defendants was that suit of pla intiffs was not
maintainable as alternate forum under special law (Environmental Protection Tribunal) was available---Validity ---Court was to decide whether legal authority which the Court
could exercise with regard to the matter brought before it for deci sion was proper ---Relief
sought by the plaintiffs was with regard to special law (Environmental law) which could not be claimed under declaratory suit ---Special forum constituted under the special law
(Tribunal) would have overriding effect in the present matter for redressal of grievance of
plaintiffs ---Civil Court could not exercise its jurisdiction to resolve the environmental
dispute under civil jurisdiction---Trial Court had rightly dismissed the suit filed by the plaintiffs ---Findings by the Appellate Court were result of mis -reading and non- reading
of evidence ---Impugned judgment and decree passed by the Appellate Court were set
aside and those of Trial Court were restored ---Plaintiffs would be at liberty to approach
the proper forum for redressal of their grievances ---Revision was allowed in
circumstances.
Hitachi Limited v. Rupali Polyester 1998 SCMR 1618 and Muhammad Mohsin
Ghuman v. Government of Punjab 2013 SCMR 85 rel.
Irfanullah for Petitioners.
Syed Jameel Ahmed Agha for Respondents
Date o f hearing: 11th September, 2018.
JUDGMENT
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 (here inafter 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 installatio n 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 o rchards 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 necessar y 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 adv anced 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 averme nts 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 a re 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 th e 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 w as 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 presen ce 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 Islami c 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 r edressal 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 pas sed 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.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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