' SHER ZAMAN CHAUDHRY, J.-Since in these two appeals by leave arising out of a common judgment, passed by the High Court on 11.6-1983 identical questions of law and facts are involved these will, therefore, be disposed of by this single judgment. The facts necessary for the disposal of these appeals briefly stilted are ; that certain items of goods were required by the Azad Jammu & Kashmir Police Department for the use of the force personnel. To make the purchases of the required items a Purchase Committee having D. T.-G. Of Police its Chairman, S. P. Reserve Secretary and S. O. Finance and S. O. Home as members, was constituted under Government Order No, 710-15 issued on 3-7-1982. Under another Government Order No, 716-21 issued on the same date was constituted the Survey Committee. Its members were the same as that of the Purchase Committee.
Tenders for the supply of various items required by the Police Department were invited. According to the notice inviting tenders acceptance or rejection of tenders was the sole privilege of the purchase Committee.
2. These tenders having been accepted, the appellants then supplied some of the goods to the Committee. A survey of the goods so supplied by them was conducted by the Survey Committee on 22-2-1983. The goods, on inspection, according to the appellants, having been found in accordance with the specification were approved by the Committee. To conduct inspection or survey of the goods supplied and their acceptance or rejection was within the competence of the Survey Committee Alone. After approval by all the members of the Committee the goods were received and taken possession of by the Quarter Master Police. Those are even now, according to the appellants, in the Committee's possession. The survey report on the spot, after approval, was drawn and signed by the two non-police members. The Quarter Master Police was asked by the police members of the Committee to send the report to their office for their signatures. A copy of this report has been placed on record as Annexure 'B'.
3. On 1-3-1983, a dissenting note appears to have been recorded by the S. P. Reserve, a Secretary/Member Survey Committee. The perusal of the survey report drawn on the spot after the inspection on 22-2-1983, however, reveals that goods were approved. Nothing was rejected and the possession of the goods was taken by the Quarter Master. The D. I.-G. Police, the Chairman, Survey Committee, again, on 2-3-1983, directed the Quarter Master to get the goods examined by the local experts and have their opinions. He was asked to submit his own opinion as well. On inspection the goods were found according to the specification by the local experts and the Quarter Master Police. Their opinions were submitted to the D. I. G. The Chairman Survey Committee which are now on the Court's record as Annuxures `E' and 'F' respectively. The goods, according to the appellants, were first approved by the Survey Committee and then by the local experts as well as by the Quarter Master.
4. The appellants thereafter, through a letter issued on 5-4-1983 by the Registrar, Central Police Office, Muzaffarabad, were informed that the goods supplied by them being of substandard quality were rejected. This letter of rejection issued by the Registrar, Police was followed by yet another letter issued on 17-4.1983 by the respondent No, 2,
1. G. P., Azad Kashmir, intimating the appellants that the goods supplied by them having been of substandard quality were rejected and that they were to supply those items afresh according to the approved specification by 30-5-1983. Hardly 2 weeks had passed when on 3-5-1983 the appellants were directed, this time by the S. P. Reserve of course without any lawful authority, to remove the goods from the police store by a 5th May, failing which they were to pay Rs, 500 daily as damages and the amount was to be realized from the proceeds of the auction of the goods. The supply order was finally cancelled and the security amount of the appellants forfeited vide order dated 4-5-1983, passed by the respondent No, 2.
5. Feeling aggrieved by the orders passed by respondents Nos. 1 and 2 the appellants approached the High Court by way of writ petitions. The learned High Court, however, dismissed these writ petitions declaring these as incompetent on the ground that those were for the enforcement of the contractual obligations. The order of rejection was passed by the High Court on 11-6-1983. To challenge the correctness of this judgment petitions for leave to appeal were filed by the appellants. From among the various grounds listed in the petitions leave was allowed to consider :- "as to whether the High Court had rightly concluded the issue that the writ of mandamus was incompetent and the case as the same was only meant to enforce the contractual obligations."
6. While these appeals still await decision petitions for amendment of their writ petitions were moved by the appellants. The proposed addition into the grounds listed in the writ petition sought to be made by way of amendment was "that respondent No, 2 had neither under the Government Order No, 710-15 nor under Government Order No, 716-21 issued on 7-3-1982, any authority to pass any order or the impugned orders. The orders having been passed without lawful authority were therefore, void."
' This addition sought to be introduced in substance according to the appellants stood already listed in writ petitions. All they wanted was to make the point more distinct in view of the objections taken by the respondents. On perusal of the writ petitions this Court held that the points sought to be added, though unhappily worded, stood already incorporated in para. 17 of the writ petitions and as such the learned Advocate or the appellants was at liberty to raise and to argue the point if he so wished. The petitions for amendment having been found unnecessary were rejected.
7. While arguing on behalf of the appellants Mr. Manzoor-ul-Hassan Gillani, the learned counsel, submitted that to conduct survey or inspection of the goods supplied by the appellants and then to approve or reject those if not found in accordance with that order confirming to the required specification was exclusively within the powers and competence of the Survey Committee, constituted under the Government Order, for the purpose. The respondent No, 2, i. e. I. G. P. Bed no authority whatsoever either to inspect or to reject the goods supplied by the appellants to the Committee by declaring those as not conforming to the samples, respondent No, 2 had no authority to pass the impugned orders or for that matter any order. All that the appellants sought from the High Court was a declaration, The learned High Court, however, according to the learned Advocate, failed to attend this aspect of the case and dismissed the petitions on the short ground that these were meant to secure the contractual obligations and that alternate remedy though available was not availed of. The findings of the High Court, therefore, could not, argued the learned counsel, be sustained. The impugned judgment, according to the learned counsel, suffered from other infirmities e. g. :
(a) since the writ petitions were admitted for regular hearing the learned High Court could not thereafter reject those as being incompetent. Those had to be decided on merits ; and
(b) the order passed being mala fide and there being no statutory bar against invoicing the writ jurisdiction of the High Court even in cases where the dispute related to the writ petitions ought to be heard and decided on merits.
8. Mr. Mumtaz Hussain Rathore, the learned counsel for the respondents, while controverting the arguments advanced on behalf of the appellants contended that the point involved in the petitions related purely to a contract and it could not be enforced by invoking the extraordinary writ jurisdiction of the High Court. The matter was purely for the ordinary Courts of law to determine. The impugned order was, submitted the learned counsel, therefore, perfectly in accordance with law and suffered from no infirmity.
9. To examine the validity of the arguments advanced on behalf of the parties we have with great care gone through the relevant documents on record. The Police Department of Azad Kashmir, as appears from the record, needed certain items of goods to be used by the members of the police force. To make purchases of these items a purchase Committee was constituted under the Government Order No, 710-15. It was in continuation of the Government Order No, 271/64 dated 24- 6-1964.. Through, another Government Order No, 716-21, dated 3-7-1982, was constituted a Committee called the survey Committee. Both the Government Orders were passed on 7-3-1983.
Under the Government Order the purchase Committee in all had four members, namely, D.1.G.
Police, S. P. Reserve, S. O. Home and S. O. Finance. These gentlemen were the members of Survey Committee as well.
10. To accept or reject the tenders offered by the contractors for the supply of goods was, prima facie, within the competence of the purchase Committee. Whereas to conduct survey and inspection of the goods supplied and to approve or reject was within the exclusive competence of the Survey Committee. From the careful perusal of these two Government Orders as well as Government Order No, 271/64 dated 24-6-1964 it, prima facie, appears that I. G. P. Does not figure anywhere in the scheme of these orders except, as contended by the learned Advocate for the appellants, at the best he was a liaison between the Committee and the Government.
11. The case of the appellants precisely put is that to accept or reject the tenders offered by the Contractors and conduct the survey and inspection and approve the goods was exclusively within the competence of the purchase Committee and Survey Committee respectively. The goods supplied by the appellants were first, on inspection, approved by the Survey Committee and then again by the local experts as well as by the Quarter Master Police. The respondent No, 2 had no authority under law either to inspect or to pass any order in respect of goods supplied by them. By passing the impugned orders respondent No, 2 may be said to have assumed the authority not vested in him under law. The appellants feeling aggrieved by these, as they claimed, illegal, orders of rejection and then the forfeiture of their goods passed by the respondent No, 2 approached the High Court for the redress by way of writ petitions. The careful perusal of the writ petitions would reveal that the appellants sought the orders passed by respondents Nos. 1 and 2 to be declared as having been passed without any lawful authority and were void and inoperative.
12. The question now, therefore, needing consideration is whether under the circumstances the High Court by rejecting the writ petitions on the short ground that those were meant for the enforcement of contractual obligations bad acted is the proper exercise of the discretion vested in it under law.
We have gone through the report of the case titled Azad Government of The State of Jammu & Kashmir v. Kashmir Timber Corporation (1). Under a contract duly signed and executed between the Government and the lessees, the respondents in that case were to carrying on work at different stages of felling of trees, conversion and extraction of the timber from forest area under the lease.
Except one all others had converted the trees in timber and the one who did not, still had about 30,000 . Standing trees. Part of the timber had already been transported out of Azad Kashmir territorial limits and rest of it was lying on different places. The Government then promulgated an Ordinance called Trade (Nationalization) Ordinance of 1976. Under the provisions of. This Ordinance only Azad Government or a Corporation owned or wholly controlled by the Government was to carry the trade of felling, conversion and extraction etc. Of the trees. All the existing and subsisting agreements between Government and lessees with regard to the standing, felled or fallen trees and timber were terminated with effect from specified date and the property under the Ordinance vested in the Government, all those in possession or control of timber or trees under the contract which stood terminated were required to deliver those immediately to the Forest Department of Azad Kashmir. As the respondents, lessees, under a valid contract were carrying the trade and had become the owners of the timber and trees they challenged the constitutionality of the legislation by way of writ petition which was admitted and, decided on merits by the High Court. It is thus clear that its subsistence and the nature of the relief claimed ought to be taken into consideration by the Court. On careful consideration of the point we find that the orders of rejection of the writ petitions filed by the appellants passed on 11-6-1983 by the learned High Court were not passed in proper exercise of the discretion vested in it under law. The petitions, in our view, ought to have been considered and decided on merits.
13. There is yet another aspect of vital importance needing consideration. On perusal of the record it appears, as already stated in the earlier part of this judgment, that survey of the goods supplied by the appellants was conducted by the Survey Committee on 22-2-1983. After the inspection it is claimed by the appellants that goods were approved by the Committee. A survey report was drawn after inspection on the spot. It is also on the record. The perusal of its contents may lend support to the appellants' claim that the goods were approved by the Committee. The entry may show that no item of goods supplied was rejected by the Committee. The possession of the goods, inspected it appears, was taken over by the Quarter Master Police on the direction of the Committee. The report was signed by the two non-police members and the report carries their signatures. The claim of the appellants is that two Police members directed the Quarters Master Police to send survey report to their offices for their signatures. On 1-3-1983 a dissenting note appears to have been recorded by the S. P. Reserve, the Secretary/Member Survey Committee. We have deliberated on the point as to why S. P. Reserve, if in fact he did not approve the goods, failed to record his dissent at the time of inspection. The question as to why the dissenting member did not record his dissent at the time of inspection and what made him keep waiting till 1-3-1983, is intriguing and needs a deeper consideration. The claim of the appellants is that it was for the ulterior motive. Again, another member of the Survey Committee, i,e,, the Chairman who happened to be D. I. a, did not record his dissent on the survey report nor did he claim to have expressed his disapproval at any stage till the matter was taken to the Court {{FOOT NOTE}}
(I) PLD 1979 SC (A J K) 139 {{FOOT NOTE}} ' Au. PAKISTAN LEGAL DECISIONS effect that he too did not accord his approval is also a vital question to of law and even during the proceedings before thed High Court. What induced him to submit his affidavit during the proceedings before this Court to be gone into. It is strange that he kept this information to himself and did not think it proper. To make the disclosure during all the time the proceedings were pending before the High Court. Again as to why if at all he did not approve the goods at the time of inspection he failed to record his dissent in the inspection report.
The claim of the appellants is that since through the new contract a close connection of the Chairman Survey Committee was to be obliged so it became necessary for him to submit an affidavit before the Supreme Court. These assertions of the appellants may or may not be correct but all the same fact remains that a plea of mala fide in very clear and strong B way has been taken by the appellants, as such the writ petitions, in our view, could not have been dismissed without going into the merits of the points raised in the petitions.
14. Next is the point with regard to the availability of an alternate remedy. The adequacy of this remedy ought to be viewed or judged in the terms of comparative speed, expenses, convenience and effectiveness involved in case relief is allowed by the High Court in exercise of its constitutional jurisdiction. The High 'Court would generally decline to issue the high prerogative writs in cases where alternative and equally efficacious remedies are available. But then it does not mean that there is any constitutional bar to the High Court in exercising such ajurisdiction or authority. Nor is the rule of alternate remedy inflexible. The fact that the High Court will ordinarily decline to step in where the alternate remedy is available is not due to their want of jurisdiction but for the reasons of expediency. Each case is to be decided in light of its accompanying facts and circumstances. The High Court will not halt= to exercise its extraordinary constitutional jurisdiction 'where refusal to do so, in its estimation, would prolong the agony. In view of the peculiar circumstances of this case and considering the nature of the relief claimed therein rejection of the appellants' writ petitions by the learned High Court was a wrongful exercise of the jurisdiction vested in it under law.
For the foretasted reasons we accept the appeals. While setting aside the impugned judgment we remand the cases back to the High Court with the direction that writ petitions in the light of the observations made above be considered and decided on merits. With costs.