1. NAIMUDDIN ACTG. C.J.-The Assistant Commissioner and Sub-- Divisional Magistrate (South), Karachi, respondent No. 1 by the order dated 10-1-1981, passed under section 133, Or. P. C. On perusal of the report sub--mitted by the Deputy Controller of Building, Zone V1I, Karachi. Building Control Authority, that the shops adjacent to plot bearing No. R. C. 7/3, Amba Street, Edgah, M. A. Jinnah Road, Karachi, are in dangerous condition and are likely to fall at any time causing loss of life of inhabitants and general public and holding that the same constituted public nuisance acid deserved to be removed immediately, required the petitioner to vacate and demolish the shop within 3 days .Of the receipt of the order failing which he was informed, that legal action would be taken against him and the shop in question would be got demolished at his costs.
2. Aggrieved by the aforesaid order the petitioner has filed this constitutional petition under Article 199 of the Constitution.
3. It appears that there is already litigation in. The form of a suit, being Suit No. 983 of 1977, pending in this Court, between the petitioners and respondent No. 4. It is claimed by the petitioner that he did not own any shop but he is running a petrol pump on plot of land leased out to him by K. M. C. And the building is a Pucca construction and' is in "A 1" condi--tion.
4. We have heard Mr. G. M. Qureshi, Advocate for the petitioner and Mr. A. A. Fazeel, Advocate for respondent No. 4.
5. It is submitted by Mr. G. M. Qureshi, Advocate that the order passed by respondent No. 1 is without jurisdiction for the Assistant Commissioner has passed the final order though under the provisions of section .133, Cr. P. C. He could pass only a conditional order. In order to appreciate the contention it would be appropriate, if we reproduce the relevant provisions of, section 133, Cr. P. C. Herein below and the same read as follows -- "133. Conditional order for removal of nuisance,---(1) Whenever a District Magistrate, a Sub- Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other informa--tion and on taking such evidence (if any)' as he `thinks fit, that any unlawful obstruction -or nuisance should be removed from say way, river or channel which is or may be lawfully used by the public, or from any public place, or that r .--that . . ' . That any building; tent or structure, or any tree is in such a condition that it is, likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary, or thatto remove such obstruction or nuisance ; or that---------------------------------------.. that---------------------------------------. to remove such obstruction or nuisance; or to---------------------------------------.. to---------------------------------------.. to prevent or stop the erection of, or to remove, repair or support, such building, tent or structure : or to---------------------------------------... to . . . . to------------------------------------------------. to------------------------------------------------. or, if he objects so to do, to appear before himself or some other Magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.
(2) No------------------------------------------------------------------..
6. Explanation A bear perusal of the above provisions show that the final order passed by the Assistant Commissioner and impugned in this petition is not in accord with the provisions quoted above for under these provisions the Deputy Commissioner was required to give an opportunity to the petitions in case he objects to demolition or removal of the structure to appear before hire ors.!
7. Some other Magistrate of the First Class or Second Class at a time and place to be fixed by the order and to have the order set aside or modified in the manner hereafter provided. The manner provided is contained in section 137 Cr. P. C. Which provides as follows :- "137. Procedure where he appears to shod, cause.-(1) If he appears and show cause against the order, the Magistrate shall take evidence in the matter in the manner provided in Chapter XX.
(2) if the Magistrate is satisfied that the order is not reasonable proper, no further proceedings shall be taken in the case.
(3) If the Magistrate is not so satisfied, the order shall be made absolute."
8. Thus the petitioner was given no opportunity whatsoever to appear and show cause against the order. Therefore, it is clear that respondent No. 1 has acted in excess of the jurisdiction vested in him and therefore, the order passed is illegal and illegality is patent on the face of the order.
9. Mr. A. A. Fazeel has however contended that the petition is not maintain--able as alternate remedy by way of revision was available to the petitioner. The learned counsel submitted that other shopkeepers also had filed similar petition against similar orders but they had withdrawn the same and flied revision in which the order was set aside. However, it is well settled that when an order is patently without jurisdiction or in excess of jurisdiction such an order could be declared in the exercise of constitutional jurisdiction to be without lawful au--thority. If any authority is needed reference can be had to Lt: Col. Nawabzada Muhammad Amir Khan v. Controller of State Duty and others (P L,D1961SC119), Burmah Oil Company (Pakistan Trading) v. The Trustees of the Port of Chittagong (PLD1962SC113), Pakistan and another v. Qazi Ziauddin (PLD1962SC440). Abdul Ghani and another v. Govern--ment of Pakistan and others (PLD 1968 SC 131), Messrs Usmania Glass Sheet Factory Ltd., Chittagong v. Sales Tax Officer, Chittagong (PLD 1971 SC 205) and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others (PLD 1972 SC 279).
10. "We consider that since the question which arose was one of fiscal right based upon a statutory instrument, it was an easily and conveniently determined in a writ petition as by means of a suit. By the exempting notification, a duty was cast upon the taxing authority viz., the Port Trustees to relieve the subject against certain imposition and thereby a corresponding right to such relief was created, in favour of the subject: Mandamus is in every way an appropriate remedy for the assertion of such a right by enforcement of the corresponding duty."
11. "But there is even a stronger reason why the objection should be repelled. In the very case which has been relied upon by the learned Attorney---General, that is, Messrs Haroon and others v. The Collector of Customs, Karachi and another PLD 1959 SC (Pak.) 177 it had been held that the failure to appeal against the order of the Collector was not necessarily a bar to the filing of a petition for certiorari for the objection as to there being an alternative remedy was not of such weight in the case of certiorari as it was in the case of mandamus, and if there was either absence or excess of jurisdiction or the impugned order suffered from illegality on the face of the record a certiorari could be granted ever, though the remedy by way. Of appeal had not been availed of."
12. Similarly in Abdul Ghani's case it was held by Fazale-Akber, J. At page 139 of the report as follows :- "Anything done beyond or in excess of powers conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case, the High Court can examine if the officer concerned has acted in. Accordance with the powers conferred upon him by the statute."
13. "If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance its appeal under section 36 would have been in exercise in futility. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate. Duty and others PLD 1961 SC 119, that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority.
14. The appellant has also alleged mala fide in law against the C. D. A., a statutory functionary. In the case of East & West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 4l this Court has held that where a Statutory functionary acts mala fide or in a partial, unjust and oppres--sive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question."
15. We therefore, declare the order impugned in this petition has been passed without lawful authority and is accordingly of no legal effect. However, this will not preclude the respondent from passing order in accordance. With law. In the circumstances of the case we leave the parties to bear their own costs.