' The Chief Officer, Municipal Committee, Abbottabad filed a complaint against Mrs. Gul, Principal Usmania High School and College, Link Road, Abbottabad under section, 164/165, read with item 11 of Part I of the Third Schedule of the N.-W.F.P. Local Government Ordinance, 1979, that she raised construction without obtaining necessary sanction of the Municipal Committee therefor and thereby blocked the flow of water in a 'Null& which was proving a nuisance to the residents of the area. It was further alleged in the complaint that despite notice issued to her not to pursue the construction, she did not act upon in and that her act fell under the penal provisions of the law mentioned above. However, in the last para of the complaint a prayer was made that she may be asked to stop the construction and remove the unauthorised construction already made by her and that the orders may be issued that the flow of water in the 'nullah' may be allowed to continue.
This complaint was filed in the Court of EAC V, Abbottabad who after taking cognizance of the matter, proceeded with it and by order dated 19-7-1982, which order was made in absence of the accused who was also absent on many dates earlier than that, directed that the construction shall be removed by the Municipal Committee, Abbottabad and the cost thereof shall be recovered from the accused in accordance with the provisions contained in the said law.
2. The accused filed appeal against the said order before the learned Sessions Judge, who by his order dated 25-10-1982 dismissed it. In the last lines of the order, however, the learned Sessions Judge wrote:- "Finding no substance in criminal revision in hand I dismiss the same."
' This would mean that the learned Sessions Judge treated the appeal as revision petition, though no specific order to that effect was made by him, and disposed of it as such.
3. Mrs. Gul then filed this revision petition against the said order of the learned Sessions Judge, Abbottabad assailing the order on many grounds mentioned in this revision petition.
4. Mr. Mushtaq Ali Tahirkheli, Advocate appeared on behalf of the petitioner, Sardar Muazam Khan, Advocate appeared on behalf of the Municipal Committee (respondent No,1), and Muhammad Ayub, Advocate appeared on behalf of the State. They were heard and the record perused.
5. Today when the attention of the learned counsel for the petitioner was drawn to the fact that as there was no provision in the Special Law (Local Government Ordinance, 1979), about filing of appeals against the orders made by a Magistrate under section 165 of the said law; section 171 thereof not being relevant, the learned Sessions Judge would be deemed to have exercised his revisional jurisdiction in the matter and the impugned order made by him would be deemed to have been made in that jurisdiction, the learned counsel for the petitioner, realizing that the order made by the Sessions Court in revisional jurisdiction was not revisable by the High Court, at once requested that this revision petition may be treated as a petition made under section 561-A, Cr.P.C.
And that since the orders made by the two Courts below are patently illegal, they be quashed or set aside.
6 Third Schedule to the Local Government Ordinance speaks of certain acts or omissions which under section 164 of the said Ordinance have been made offence. Section 165 of the said Ordinance prescribes the penalties for the offences mentioned in the Third Schedule and since the offence complained of fell under item 11 of Part I of said schedule subsection (1) of section 65 of the said Ordinance was relevant in this case. According to these sections, after observing the procedure prescribed in section 168 or 169 of the said Ordinance read with the relevant provisions of the Code of Criminal Procedure, the Magistrate could award sentence to the accused as was prescribed in the said section. When seen in this light, the order made by the learned Magistrate in this case was patently illegal, having not been provided for in the said section of law. It was a clear abuse of the process of the Court and this fact, it is surprising to note, did not come to the notice of the learned Sessions Judge who disposed of appeal/revision petition filed before him by the petitioner herein. The impugned order made by the two Courts below, therefore, requires interference by this Court under its inherent jurisdiction.
7 For the reasons aforesaid, while accepting this petition, I hereby set aside the impugned orders made by the two Courts below and remand the case to the learned trial Magistrate who would as expeditiously as possible, keeping in view the relevant sections of Local Government Law and the Code of Criminal Procedure proceed with the case and decide it in accordance with law. The record of the case be sent by the office to the trial Court very soon.