PESHAWAR: The Peshawar High Court has ruled that consent of parties was mandatory for referring a civil dispute for alternate dispute resolution by a civil court or administration.

A bench consisting of Chief Justice Musarrat Hilali and Justice Wiqar Ahmad has accepted a petition filed by some inhabitants of Sadda, Kurram district, and set aside an order of the assistant commissioner lower Kurram of Sept 17, 2022, whereby he had ordered the police to vacate two compounds on the recommendation of a salis (mediator).

The petitioners including Maqbool Khan and several others had challenged the impugned order stating that they had not given any consent for referring their civil dispute to the saliseen (mediators) for alternate dispute resolution (ADR).

The bench ruled that on holistic reading of Section 3 of the ADR Act, 2020, this fact became manifestly clear that for referring of matter to mediators for ADR, consent of parties would be absolutely necessary.

Sets aside order of lower Kurram assistant commissioner

The assistant commissioner, as referring authority, contended that the impugned order had been passed in exercise of powers vested with the referring authority under sub-section 6 of section 3 of the ADR Act.

The said provision provides that the referring authority or the mediators, in order to prevent a civil dispute from further aggression or to maintain status quo, if deem appropriate may issue interim injunctions.

The AC mentioned that there was a dispute over land situated near Mir Bagh area between the inhabitants of Sateen Lower Kurram and that of Mir Bagh of Central Kurram and both the parties had earlier consented for private jirga members for resolution of the dispute between them.

He stated that on the advice of the private jirga members in an order to resolve the issue, two compounds/houses had been constructed at two different places. He added that now one of the jirga members named Mula Nabi had requested the administration that the said compounds may be vacated from its occupants for taking over its possession by the administration till amicable resolution of the issue between the parties.

The AC had ordered the police to vacate the said two compounds and deploy constables over there.

The bench observed that the power of referring a civil dispute had been provided to be lying with a civil court under section 3(1) of the ADR Act. It was added that section 3(2) of the Act had been providing for powers of deputy commissioner or any other officer nominated by the government to refer a civil dispute for ADR.

The bench observed that for such referral of a civil dispute and framing of issues by the referring authority or the mediators consent of parties would be required.

About the powers of issuing interim injunctions under section 3(6) of the Act, the bench ruled that this was not an open ended power for making any order in the guise of interim relief.

“Legislature has consciously used restricted language and same restriction may readily be found in said clause. An order under sub-section 6 of section 3 of the Act should therefore be regulated,” the bench observed.

The bench has laid down certain conditions for exercising powers under section 3(6) of the Act including: An order under said referred provision may only be issued when a referring authority is entrusted with such capacity by express consent of parties, in writing, same is the situation of saliseen, who may issue such an order after the matter is being referred to them with express consent of all the affected parties; such order may only be passed when there is apprehension that a civil dispute is likely to result into aggression or breach of peace; such order cannot be given beyond scope of maintaining status quo; and, such order should be time bound in nature and should be subject to final decision in matter.

The bench observed that the impugned order was not justified on a number of counts as first of all it was noticed that the required consent of the petitioner could not be found in this case.

It was observed that although it was mentioned that the petitioners had earlier given consent for private jirga but when matter had subsequently been taken up by the respondent No. 1 (AC) and consent of petitioners had been solicited, they had not given such consent.

Published in Dawn, June 5th, 2023