SAHIBZADA ASADULLAH, J.- The petitioners, by invoking the constitutional jurisdiction of this Court under Section 199 of the Constitution of the Islamic Republic of Pakistan, 1973, have challenged the orders dated 10.01.2024 and 16.10.2024 as being illegal, unlawful, and passed without jurisdiction.
2. The petitioners' grievance, as articulated in the factual narration and grounds of this writ petition, revolves around the assertion that respondent No. 5 lodged a complaint before the Provincial Ombudsman, alleging that his ancestral land measuring 19 kanals, situated in Jalala, District Malakand, was being deprived of its lawful water share. He further accused the concerned Patwari Halqa of abusing its authority by unlawfully obstructing water access to his agricultural land.
Acting on the said complaint, the Provincial Ombudsman solicited comments from respondents No. 1 to 3. Upon receipt of their responses, the Ombudsman, vide impugned order dated 10.01.2024, directed the initiation of the Warbandi process. Subsequently, through an order dated 16.10.2024, respondents No. 1 to 3 implemented the Ombudsman's directives and amended the Warbandi accordingly. Aggrieved thereby, and having no efficacious alternative remedy available, the petitioners have invoked the constitutional jurisdiction of this Court, seeking appropriate relief.
3. The learned counsel for the petitioners submitted that the powers and competence of the Ombudsman are governed by the provisions of Section 9 of The Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010 ("the Act").
He contended that this section, in unambiguous terms, delineates the jurisdiction conferred upon the Ombudsman to deal with matters brought before him. It leaves no room for ambiguity that the Ombudsman is to exercise limited jurisdiction, confined to complaints where his interference is warranted. In doing so, he must adhere strictly to the guidelines and factors explicitly outlined in the said provision. It was further submitted that if the Ombudsman exceeds this limited jurisdiction, any order passed would be a nullity in the eyes of the law and would carry no legal consequences.
The learned counsel emphasized that Section 9(1) clearly demarcates the powers conferred upon the Ombudsman under the Act, limiting his jurisdiction solely to cases of mal-administration, as the term "mal-administration" is clearly defined in the relevant provision, leaving no room for misinterpretation. Moreover, the counsel argued that the allegations raised in the complaint, which formed the basis of the impugned order, could under no circumstances empower the Ombudsman to take cognizance of the matter and in proceeding as he did, the Ombudsman disregarded the applicable legal provisions and failed to appreciate the legislative intent underlying The Canal and Drainage Act, 1873, under which such matters are to be addressed by designated authorities, particularly when the proceedings have been declared judicial in nature.
The counsel further argued that where the allegations were to be adjudicated by the forum constituted under the said Act, respondent No. 03 could not have assumed jurisdiction to issue directions for alteration or rectification of Warbandi (water distribution), which clearly falls outside his competence. Consequently, the order passed is illegal and warrants interference. Attention was also drawn to a civil revision pending before this Court, in which an injunctive order had been issued. It was submitted that once the matter was sub judice before a court of competent jurisdiction, respondent No. 03 ought not to have proceeded further. His failure to consider this essential legal aspect led to the violation of statutory provisions, causing undue hardship to the petitioners. In contrast, the learned counsel representing respondent No. 05 submitted that the impugned order was passed in accordance with law. He argued that, in concluding the matter, the learned Ombudsman was entitled to consider both the legal and factual aspects of the case, and as such, the order does not warrant interference. It was further contended that the distribution of water (Warbandi) does not fall within the realm of judicial competence of the authorities concerned; rather, it pertains to their executive functions. Therefore, Section 9 of the Order does not, in any manner, restrict the competence of the Ombudsman to issue directions to the relevant authorities. Once such directions are issued in cases of maladministration, the authorities are under a legal obligation to comply. Hence, the directions issued in the present case were valid and were duly complied with, leaving no ground for interference. Lastly, reference was made to Section 31 of the Act, and it was submitted that the petitioners had failed to approach the competent forum and had not availed the alternate remedy available to them. On this ground alone, it was argued, the instant writ petition is not maintainable and is liable to be dismissed.
4. The learned counsel for the parties have been heard, and the record available on file has been duly examined.
5. The record reveals that respondent No. 5 (the complainant) submitted two applications, one seeking Jadeed Warbandi and the other for Tarmeem Warbandi. Upon receipt of the said applications, the Executive Engineer, Malakand Irrigation Division, Malakand, entrusted the matter to the Deputy Collector, Malakand Irrigation Division, for verification of the factum of the complaint.
Following an investigation/inquiry, the Deputy Collector submitted his report, wherein it was stated that, as per the revenue record, respondent No. 5 is in possession of the land in question.
Subsequently, the Executive Engineer, Irrigation Division, Malakand, declined the complainant's application for Tarmeem Warbandi on the ground of the pendency of Civil Revision No. 478-P/2022 and the existence of an interim injunctive order restraining alienation.
Nevertheless, the learned Ombudsma n, through the impugned order, directed the agency to process the Warbandi case and ensure the supply of water to the complainant's land/fields. The learned counsel for the petitioners submitted that the learned Ombudsman lacked lawful authority and jurisdiction to entertain the matter. Firstly, it was argued that under Section 68 of the Canal and Drainage Act, 1873, it is the exclusive domain of the Divisional Canal Officer to investigate, inquire into, and decide such complaints. Secondly, it was contended that the title to the land is sub judice before a court of competent jurisdiction, and therefore, by virtue of Section 9(1) of the Act, the jurisdiction of the learned Ombudsman stood barred.
6. We consider it appropriate to refer to Section 9(1) of the Act, which confers powers upon the Ombudsman. For ease of reference, the provision is reproduced below:
9. Jurisdiction, functions and powers of the Provincial Ombudsman.--- [(1) The Provincial Ombudsman may, on a complaint made by any aggrieved person, undertake any investigation into any allegation of mal-administration on the part of any Agency or any of its officers or functionaries: Provided that the Provincial Ombudsman shall not have any jurisdiction to investigate or inquire into any matter which is subjudice before a court or a tribunal of competent jurisdiction on the date of the receipt of a complaint in this behalf.]
7. Before embarking upon a discussion of the term "maladministration", it is considered appropriate to first examine the meaning and scope of the term "agency", as its proper understanding is pivotal in resolving the issue of the Ombudsman's competence and jurisdiction in addressing the matter at hand. The term "agency" is defined under Section 2 of the Act. For ease of reference, the relevant provision is reproduced below: Definitions. ---In this Act, unless there is anything repugnant in the subject or context- (a)
"Agency" means a department, commission or office of Government or a statuary corporation or other institution established or controlled by Government, but does not include the High Court and Courts working under the supervision and control of the High Court, and the Provincial Assembly of the Khyber Pakhtunkhwa and its Secretariat.
8. The term maladministration, in its broader legal context, refers to inefficient, unjust, or improper administration. It encompasses conduct such as bias, neglect, inattention, delay, incompetence, arbitrariness, or the violation of legal or procedural requirements by a public authority or official in the discharge of their official duties. It includes any act or omission that falls short of the standards of fair, lawful, and transparent governance. Perusal of the record reveals that the Executive Engineer, Malakand Irrigation Division, Malakand, while declining the application for Tarmeem Warbandi, observed that a civil suit/lis between the parties was pending adjudication before the Peshawar High Court, and that a restraining (interim) order had been passed to the extent of alienation of the disputed land. The question that arises is whether such an order, passed in deference to judicial proceedings and based on a subsisting injunctive order, could fall within the ambit of maladministration so as to justify the intervention of the Ombudsman, and further, whether the learned Ombudsman could direct an authority functioning under the Canal and Drainage Act, 1873, to process the Warbandi application. Admittedly, a dispute concerning the title and possession of the land in question was/is sub judice before a court of competent jurisdiction.
During the pendency of those proceedings, and prior to the issuance of the impugned direction by the Ombudsman, an interim order was passed. Relying upon that judicial restraint, the Executive Engineer declined the application for Tarmeem Warbandi. In this factual and legal context, it is manifest that the said action of the Executive Engineer cannot, by any stretch of legal reasoning, be termed as maladministration. The order passed was neither perverse, arbitrary, nor unreasonable.
It did not reflect any unjust, biased, oppressive, or discriminatory intent. Moreover, it did not involve any corrupt or improper motive, such as bribery, jobbery, favouritism, nepotism, or administrative excess. Nor did it reflect neglect, inattention, delay, incompetence, inefficiency, or inaptitude in the performance of statutory duties. Rather, the action was a lawful and cautious administrative response in view of the subsisting judicial proceedings concerning the disputed title to the land.
9. As to the question of jurisdiction, whether the Ombudsman can direct an authority functioning under the Canal and Drainage Act, 1873, to process a case of Warbandi, it is pertinent to examine the scope and nature of such authority. In this regard, Section 69 of the Act merits consideration. It provides that any officer empowered under the Act to conduct an inquiry may exercise all such powers relating to the summoning and examination of witnesses as are conferred upon civil courts under the Code of Civil Procedure, 1908 (Act V of 1908).
Furthermore, it stipulates that every such inquiry shall be deemed a judicial proceeding. A plain reading of Section 69 clearly demonstrates that proceedings conducted under the Canal and Drainage Act, 1873, by the designated authority are to be treated as judicial in nature, and the authority itself performs functions akin to those of a court. This raises a fundamental question that, can the Ombudsman issue directions to an authority acting in a judicial capacity? Under Section 9(1) of the Act, the Ombudsman may, either on a complaint, a reference, or of his own motion, undertake an investigation into any allegation of maladministration by an Agency or any of its officers or employees. However, the term "Agency" is defined in Section 2(a) of the Act, "Agency" means a department, commission or office of Government or a statuary corporation or other institution established or controlled by Government, but does not include the High Court and Courts working under the supervision and control of the High Court, and the Provincial Assembly of the Khyber Pakhtunkhwa and its Secretariat". This definition does not extend to courts or quasi-judicial bodies, nor does it include the exercise of judicial functions by authorities under special enactments. Given that the authority acting under the Canal and Drainage Act, 1873, exercises powers of a judicial nature, it falls outside the definition of an "Agency" within the meaning of Section 2(a). Accordingly, the Ombudsman lacks jurisdiction to issue directions to such an authority, as doing so would amount to interference with a judicial process, an area explicitly excluded from the Ombudsman's mandate. In any event, Section 9(1) of the Act categorically bars the Ombudsman from investigating or inquiring into any matter that is sub judice before a court of competent jurisdiction, judicial tribunal, or board in Pakistan at the time of receipt of the complaint, reference, or motion. The record clearly reflects that the dispute regarding the subject matter was already pending adjudication before a competent court prior to the filing of the complaint before the learned Ombudsman. Therefore, in terms of Section 9(1) of the Act, the Ombudsman lacked lawful jurisdiction to entertain or take cognizance of the complaint.
10. Now addressing the objection regarding the maintainability of the petition in view of Section 31 of The Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010, which provides an alternate remedy to an aggrieved person: it is well-settled that ordinarily, where an alternate and adequate remedy is available, the invocation of constitutional jurisdiction under Section 199 of the Constitution is discouraged. However, this principle is not absolute. When the impugned order passed by the Ombudsman is ex facie without jurisdiction, and where the Ombudsman has acted beyond the powers conferred upon him under Section 9 of the Act, the constitutional jurisdiction of this Court can be validly invoked to rectify such an illegality. An order passed without lawful authority is considered a nullity in the eyes of law, and such a void order can be questioned directly before the High Court, even without first approaching the alternate forum. Therefore, the objection regarding maintainability of the petition on the basis of Section 31 of the Act is misconceived. Once it is established that the Ombudsman acted outside the scope of his jurisdiction under Section 9, the existence of an alternate remedy under the Order does not preclude this Court from exercising its constitutional powers. Accordingly, the objection to maintainability is found to be without merit and is hereby overruled. Reliance is placed on Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107 "In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (h) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
11. In view of the above, this writ petition is admitted and allowed, and in consequence thereof, the impugned orders dated 10.01.2024 and 16.10.2024 are set aside.