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March 3, 2019

Sessions court has no power to undo govt dept’s action: SHC

National

March 3, 2019

KARACHI: The Sindh High Court on Saturday observed that under the Section 22-A (6) of the Code of Criminal Procedure (CrPC), the district and sessions courts did not have the power to examine the acts or omissions of government departments and that under such jurisdiction, the actions or omissions of any government department could not be undone.

The observation came on an application of the Karachi Water and Sewerage Board (KWSB) against the decision of an additional district and sessions court with regard to de-sealing of a private water supply company hydrant. A counsel for the KWSB submitted that the additional district and sessions court was not competent to pass the order to de-seal the property of the water supply company in the Ibrahim Hydery area which had been sealed by the KWSB in pursuance of a Supreme Court (SC) order in illegal hydrants case.

An SHC’s single bench comprising Justice Salahuddin Panhwar, after perusal of the impugned order, observed that the additional district and sessions judge was not only aware of the SC order but such fact was also specifically brought into notice in shape of a reply by the KWSB.

The SHC observed that the KWSB, in its reply, had categorically owned its action in pursuance of the SC order and challenged the jurisdiction of the lower forum while pleading that the additional district and sessions court, being ex-officio justice of peace, could not pass order onto the complaint of a private company.

The high court observed that under the Section 22-A (6) of the CrPC, the sessions courts could only exercise such powers for issuing appropriate directions to police authorities with regard to non-registration of criminal case, transfer of investigation from one police officer to another officer or neglect or excess committed by a police authority in relation to its function and duties.

The SHC remarked that nowhere such power gave an impression that such jurisdiction could be exercised to examine the acts or omissions of other government departments or that under such jurisdiction

the actions or omission of government department could be undone.

The court observed that the impugned order of the additional district and sessions judge East was completely wrong as the judge knew that passing such an order was likely to result in undoing an action claimed to be done in compliance with the directive of the SC. Taking notice of the illegal order passed by the additional district and sessions judge under 22-A (6), the SHC directed the registrar of the court to place the order before a competent authority for departmental proceedings against ADJ in accordance with the rules.

The SHC observed that the impugned order itself showed that all these facts as well as limits of his authority were in the judge’s active knowledge and notice and yet the judicial officer dared to pass the impugned order by wrongly assuming the matter to be falling within powers given only to issue direction to local police authorities.

According to the SHC, even in the name of doing justice, a tribunal or a court could not assume jurisdiction which the law did not vest in it. The high court observed that the additional district and sessions judge was not competent to examine legality or illegality while acting as justice of peace nor was ever justified in passing an order which was likely to operation as declaration allowing use and sale of subsoil water without any cover of licence or regulations.

The court observed that the ADJ East despite having notice of the Supreme Court order had exceeded his authority and set aside the impugned order with regard to de-sealing of the hydrant in the Ibrahim Hyderi area. The SHC also directed the registrar of the court to place the order before a competent authority for departmental proceedings against the ADJ in accordance with the rules.

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