ISLAMABAD: The Supreme Court has rejected a Sept 8, 2020 Peshawar High Court (PHC) order to compensate an individual whose house was damaged by aerial shelling during Operation Rah-i-Nijat conducted by the army in 2007.

“One of the significant aspects of the case is that the compensation was based on the damages caused in the year 2007, but claim was filed before the PHC in 2019 — virtually after 12 years,” observed Justice Muhammad Ali Mazhar, while accepting an appeal of Special Secretary-II (Law and Order), Home and Tribal Affairs Department, Khyber Pakhtunkhwa, against the PHC order.

A three-member SC bench headed by Chief Justice Umar Ata Bandial, also consisting of Justice Ayesha A. Malik and Justice Mazhar, had taken up the appeal.

The house of Fayyaz Dawar was damaged due to aerial shelling in the military operation and some casualties also occurred for which compensation had already been paid to Mr Dawar.

Govt appeal against PHC verdict allowed; money was claimed for damage caused to house during army operation

Later, after a lapse of 12 years, Mr Dawar filed a petition seeking compensation for the alleged damage to his house. He claimed that the actual damage, which was also verified by the political tehsildar and political administration through an Aug 19, 2007 letter, was fixed at Rs2.6 million.

The KP special secretary opposed Mr Dawar’s petition saying there was no law or policy of compensation in vogue at the relevant time to redress the petitioner’s grievance.

The PHC, however, allowed the petition with directions that compensation be paid to the respondent as estimated by the political agent in 2007.

Authored by Justice Mazhar, the judgement said in realism and practicality, there was no policy document for entertaining or satisfying any claim of compensation pertaining to the year 2007.

In 2013, the KP governor under the provision of sub-section (3) of Section 14 of National Disaster Management Ordin­ance, 2007 — succeeded by National Disaster Manag­ement Act, 2010 — read with Section 1(2) (a) of the SRO No. M-302/L.-7646, approved with immediate effect the policy governing compensation packages for disaster affectees of erstwhile Federally Administered Tribal Areas.

It is a well-settled exposition of law that disputed questions of facts cannot be entertained and adjudicated in the writ jurisdiction.

The high court had through its order observed that it cannot practically assess the amount of damage; yet, the petition was allowed in disregard of a crucial facet that in the constitutional jurisdiction, the high court cannot go into miniature and diminutive details which could only be resolved by adducing evidence by the parties vice versa, the SC observed.

The extraordinary jurisdiction under Article 199 of the Constitution is envisioned predominantly for affording an express remedy where the unlawfulness and impropriety of the action of an executive or other governmental authority could be substantiated without any convoluted inquiry, according to the apex court.

Controverted questions of fact adjudication, which is possible only after obtaining all types of evidence in power and possession of parties, can be determined only by courts having plenary jurisdiction in the matter and on such ground constitutional petition was incompetent, the judgement said.

Published in Dawn, July 29th, 2023

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