' MUNAWAR AHMED MIRZA, J.--This Petition is directed against order dated 11-5-1987 passed by learned Assistant Commissioner Pishin (Respondent No,13).
2. Facts of this case are very brief and simple. On 11-5-1987 respondents 1 to 12 submitted an application to the Assistant Commissioner-cum-Assistant Collector Grade-I, under Section 135 of the Baluchistan Land Revenue Act, 1967 (hereinafter referred to as 'Land Revenue Act') seeking partition of land situated in Mohal Mauza Zharr Tappa Manzaki Tehsil Pishin. It was alleged that said land belongs to 193 shareholders and parties being recorded owners are entitled to partition and possession of land according to their shares.
3. Assistant Commissioner, Pishin on the same date without any notice to petitioner or any other shareholders/joint owners of land in dispute and without recording any proceedings whatsoever passed the following order:- {{URDU TEXT}}
4. Petitioner has challenged aforesaid order filing this constitutional Petition, alleging that same suffers from total lack of jurisdiction.
5. Mr. Khalid Malik, learned counsel for petitioner strenuously urged that order dated 11-5-1987 passed by respondent No,13 is violative of principle of natural justice and has been passed disregarding mandatory provisions of Land Revenue Act relating to partition of land. Additionally according to him impugned order has been signed by respondent No,13 as Assistant Commissioner purporting to exercise jurisdiction within the purview of Civil Law (Special Provisions)
Ordinance-I of 1968. Therefore, confusion regarding forum for challenging impugned order was apparent on record.
6. Whereas Mr. Muhammad Zafar, learned counsel for private respondents vehemently contended that his clients being recorded joint owners/shareholders of land in dispute were entitled, to partition their share of property as rightly directed by respondent No,13. He however emphatically challenged the maintainability of this petition, pleading that alternate remedies are available to petitioner, therefore, constitutional jurisdiction of this Court could not be invoked directly.
7. We have considered the contentions raised by learned counsel for parties. Fundamental question for primary consideration therefore turns around maintainability of Constitutional Petition specially when petitioner has not availed alternate remedies. It may be seen that constitutional jurisdiction of this Court is exercizable within the scope of Article 199 of the Constitution of Islamic Republic of Pakistan. Evidently High Court if satisfied that no other adequate remedy is provided by law, can on the application of an aggrieved party judicially review actions of the administrative tribunals. Thus, important factor for assuming jurisdiction is, the judicial satisfaction of this Court as regards adequacy of other remedy. No doubt High Court normally does not entertain a writ petition when other appropriate or suitable remedy is available under the Law. However, superior Courts have time and again, determined the scope and meaning of adequacy contained in opening para of Article 199 of the Constitution. It may be observed that generally question of adequacy is not a rule of law, barring or limiting jurisdiction of High Court, rather it controls and regulates the same.
Therefore, mere availability of an alternate remedy does not ipso facto debar an aggrieved party from invoking constitutional jurisdiction of this Court. Thus, question whether writ may be entertained in spite of alternate remedy is always within the discretion of High Court depending upon the type of grievance, nature of other remedy available to aggrieved party, expense, speed, convenience, impact or extent of damage which may be caused by the act or omission. However, by now it is well-settled that when an order, act or omission of the functionary appears to be autocratic, capricious, or tends to defy mandatory precondition for the exercise of authority, or suffers from total lack of jurisdiction, or indicates exercise or assumption of authority which evidently does not vest in or reflects patent illegality whereby alternate remedy does not seem to be effective or efficacious the writ jurisdiction could be legitimately exercised. In support of this view it would be profitable to refer to some of the reported judgments:-
(i) The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279).
"It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as the 'C.D.A.') to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan Vs. 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."
(ii) Nagina Silk Mill, Lyallpur v. The Income-Tax Officer, A-Ward Lyallpur and another (P.L.D. 1963 Supreme Court 322)
"It was laid down that the general rule undoubtedly is that it is wrong on principle to entertain petitions for writs except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal, fully competent to award the requisite relief. At the same time, it was held that in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of. A certain amount of flexibility is allowed by the law in the case of a prayer for writ of certiorari as compared with a case for mandamus. It was further observed that if the application for certiorari is made by a party aggrieved, then it ought to be granted ex debit justified and the High Court has not the general direction which it would have, when the application is made by a member of the public, who is not personally concerned. This would specially be the case where the alternative remedy provided by the relevant statutes is not as efficacious, speedy or convenient as the one available under the writ jurisdiction of the High Court. This principle would be found discussed in Ferris on Extraordinary Legal Remedies at pp. 185-187, 1926 Edn. That relief in these cases could not have been obtained as quickly or with as such facility and convenience under the Act which provides for a series of appeals, revision and reference to the High Court on law points, on condition that the tax assessed is first paid, as by recourse to the writ jurisdiction of the High Court, can hardly be contested. It is at the same time conceded that the Income-Tax Officer was required to act judicially in applying the provisions of the Act."
' Anjuman-e-Ahmadia, Sargodha v. Deputy Commissioner, Sargodha and another (PLD 1966 S.C.
639).
"Thus, once it is established that the remedy sought is for the performance of some public duty then relief by way of an extraordinary remedy of this nature is not to be denied merely because some other remedy under the general law is available, inexpensive, expeditious, beneficial and efficacious. The policy underlying the introduction of this form of extraordinary remedy is, as observed by Lord Mansfield in Rex v. Barker (1762) 3 Bure 1265 = 97 ER 823 'to prevent disorder from a failure of justice and defect of police' in an established no specifit remedy and where injustice and good Government there ought to be one."
(iv) Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 S.C. 450)
"These defects of jurisdiction are apparent on the face of the record which in my opinion would at once attract certiorari jurisdiction of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent 1, the proceedings will be wholly without jurisidtion and therefore a nullity. In somewhat similar circumstances in the Murree Brewery Company Ltd. v. Pakistan PLD 1961 SC 119 this Court interfered in proceedings for acquisition of certain properties by the Capital Development Authority although there existed provision for appeal and review in the statute under which proceedings for the acquisition were initiated."
(v) Salooka Steels Ltd. v. Director-General, Coast Guards of Pakistan (PLD 1981 Quetta 1)
"16. One of the objections taken though not argued is that the petition is not miantainable because of the alternate remedy available to the petitioners. In cases where the very jurisdiction of a Tribunal is challenged the aggrieved parties can always directly approach this Court in its constitutional jurisdiction. In this behalf I may refer to the authorities of the Supreme Court reported as Murree Brewery v. Pakistan PLD 1962 SC 279 and Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and others PLD 1975 SC 450 wherein their Lordships have held that one of the well- recognized exceptions to the general rule of availing the alternate remedy, is where an order is attacked on the grounds that it was wholly without authority or the statutory functionary acted mala fide or in a partial, just and oppressive manner."
' Similarly in a recent judgment of Division Bench of Sind High Court Sher Shah Industries Ltd. v.
Government of Pakistan and others (PLD 1982 Karachi 653 at page 66) question concerning scope of exercising extraordinary constitutional jurisdiction has been discussed by referring to plethora of case-law. Operative portion being relevant and on all fours is also reproduced. T78. A review of the case-law referred to hereinabove shows that in certain cases the superior Courts of our country did not allow the petitioners to invoke the writ jurisdiction on the ground of availability of an alternate remedy by way of appeal or otherwise, but on the other hand, in other cases, notwithstanding the pendency of an appeal or availability of an alternate remedy, the Courts did not hesitate to exercise such writ jurisdiction and in fact granted relief to the petitioners. It may be expressed as a generally accepted principle, however, that just because an alternate remedy by way of appeal or otherwise is available to a petitioner the High Courts will invariably decline to exercise their extraordinary constitutional jurisdiction. The mere availability of an alternate remedy does not debar the High Courts from exercising such jurisdiction. But, as observed by Dorab Patel, J., in Hassan Ali v. Muhammad Ahsan Baloch, the question whether a writ should be entertained when an alternate remedy is available is always one within the discretion of the Court. In cases of total lack of absence of jurisdiction or authority, or apparent excess of jurisdiction, the Courts generally would not hesitate much is entertaining a constitution petition although an alternate remedy may well be available. In other cases, the Courts would generally direct the party to avail and exhaust the alterante remedies available first before entertaining the writ, if in the opinion of the Courts the alternate remedy is an adequate remedy.
9. Whether the alternate remedy available to the applicant who is Seeking the constitutional remedy, is adequate or not depends on the special or particular circumstances of the individual case, and it is precisely for this reason that in one case the High Court may not entertain the petition under its constitutional jurisdiction and in another case the same may be entertained. In taking a decision whether the alternate remedy in a given case is adequate or not to enable the High Court to take the further decision relating to entertaining the constitutional petition the Court in the background of the particular facts of the case before it, considers several factors. The question of speed and expense of the alternate remedy may be considered. Whether the alternate remedy is as effective or efficacious as the constitutional remedy is also a relevant factor. Whether, in the circumstances of the case, the alternate remdey or the writ would be the appropriate remedy can also be a pertinent consideration."
' Besides to supplement this proposition following cases may also be relied:-
(i) Ishrat & Company Vs. Controller of Insurance, Karachi (1984 C.L.C. 216).
(ii) Abdul Qudoos and others Vs. Haji Ghulam Hussain (1984 C.L.C. 1235).
(iii) Sher Aslam and others Vs. Ahmed Khan and others (1984 C.L.0 2191).
(iv) Abid Hussain Vs. Govt. Of Sind through Chief Secretary (PLD 1984 Karachi 269).
(v) Jalal Din and another Vs. Maj. Muhammad Akram Khan (PLD 1963 Lahore 595).
(vi) Ch. Abdul Hamid Vs. Deputy Commissioner & others (1985 SCMR 359).
(vii) Premier Cloth Mills Ltd. Lyallpur Vs. The Sales Tax Officer, Investigations Circle-II, Lahore and another (1972 SCMR 257).
' Now it may be seen whether by applying principle of law discussed in aforequoted reports interference is at all warranted, on the facts and circumstances of the instant case. Undisputedly order was passed by respondent No,13 on the same date when application for the partition was presented to him, without holding any inquiry. The Procedure for partitioning the agricultural land is detailed in Chapter XI of Land Revenue Act 1967, which obviously has not been adopted. The contention of learned counsel for respondent that since respondents 1 to 12 were joint owner/shareholder of land in dispute therefore they were automatically entitled to grant of relief for partition is palpably misconceived and ill-founded. Apparently in the capacity of a joint owners/shareholders the private respondents were merely entitled to apply to the Revenue Officer for seeking partition. Whereas grant of ultimate relief for the partition of land in dispute was essentially subject to fulfilment of formalities and procedure prescribed by Land Revenue Act and other existing laws. In the instant case unfortunately learned Assistant Commissioner Pishin has expressly defied the mandatory requirements of law by attempting to arbitrarily exercise an authority in flagrant disregard of the prescribed procedure besides denying the petitioner and other shareholders an opportunity of hearing, basically recognized by principles of natural justice.
Therefore, impugned order is patently illegal, void, arbitrary and totally without jurisdiction. Thus, non-compliance of statutory provisions, exhibits manifest failure of justice, needing correction.
Though it is well-settled, that violation of the rule, 'Audi Alterm Partem' renders the order void, yet if authority is needed reference may be made to some of the reported cases:-
(i) Farid Sons Vs. Chief Settlement Commissioner of Pakistan (PLD 1961 S.C. 537).
(ii) Commissioner of Income Tax East Pakistan Vs. Fazal Ahmed (PLD 1964 SC 410).
(iii) University of Dacca Vs.Zakir Ahmed (PLD 1965 SC 90 at p. 103).
(iv) Shah Mardan Shah Vs. Chief Settlement Commissioner and others (PLD 1974 Karachi 376).
(v ) Mushtaq Ahmed Kir Vs. Azad Government of State of J & K (PLD 1985 A.J.K. 212).
(vi) Zafarul Ahsan Vs. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan ( PLD 1960 SC 113).
(vii) Abdul Saboor Khan V. Karachi University ( PLD 1966 SC 536).
(viii) Chief Commissioner, Karachi Vs. Dina Sorab Katrak (PLD 1959 SC 45).
(ix) Sh. Abdur Rehman Advocate Bahawalnagar Vs. The Collector and Deputy Commissioner, Bahawalnagar (PLD 1964 SC 461).
(x) Bahadur Vs. Rehabilitation and Settlement Commissioner Bahawalpur and another (1974 SCMR 451).
(xii) Miss Humaira Zahid Vs. District Magistrate Shikarpur and 4 others (1981 C.L.C. 909).
(xiii) Bahadur v. Collector, Jhang and another (1984 CLC 2955).
Additionally it may be seen that when law specifies a particular procedure then it is obligatory for the functionary of the state to adhere to the same and comply with it in all respects. Thus, any negligence, failure or omission to do so, invalidates the proceedings on account of which whole superstructure raised on such defective foundation automatically crumbles. In this behalf we are fortified by the observations in the following cases:-
(i) Atta Muhammad Qureshi Vs. Settlement Commissioner, Lahore (PLD 1971 SC 61).
(ii) Mansib Ali Vs. Amir Ali (PLD 1971 S.C. 124).
(iii) Muhammad Yousuf Khattak Vs. S.M. Ayub and others (PLD 1972 Peshawar 151).
(iv) E.A. Evans Vs. Muhammad Ashraf (PLD 1964 SC 536).
(v) Mir Dost Muhammad Vs. Govt. Of Baluchistan and 3 others (PLD 1980 Quetta. 1).
(vi) Constitution Petition No,24 of 1987 (M. Nawaz Khoso Vs. The State decided on 31-5-1987).
Thus, taking into consideration facts of the case and above-quoted reports we are inclined to hold that impugned order suffers from total lack of jurisdiction, and has been passed in breach of express and mandatory requirements of law, therefore, same is void without lawful authority and of no legal effect. Therefore, in our opinion this is a fit case for exercise of constitutional jurisdiction, irrespective of alternate remedy.
' For the foregoing reasons we partly accept the petition, set aside the order dated 11-5-1987 passed by the respondent No,13 (Assistant Commissioner Pishin) and direct that application filed by respondents 1 to 12 be placed before Revenue Officer having jurisdiction in the matter who should dispose of the same, by complying with requirements of Chapter XI of Land Revenue Act and the law.
' Petition is accordingly disposed of in the above terms, with no order as to costs.
THE END