Case law on maintainability of writ .

THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:

Justice Munib Akhtar

Justice Athar Minallah

CIVIL PETITION NO.888 OF 2024

(Against the judgment dated 01.2.2024 of the

Lahore High Court, Rawalpindi Bench passed in

Writ Petition No.3692 of 2022)

Muhammad Safeer and others

…

Petitioners

Versus

Muhammad Azam and others

…

Respondents

For the petitioners:

Mr. Taimoor Aslam Khan, ASC

For respondent No.1:

Ch. HafeezullahYaqoob, ASC

assisted by Sarang, AHC

Date of hearing:

12.06.2024

ORDER

Athar Minallah, J.- The petitioners have invoked the

jurisdiction of this Court conferred under Article 185(3) of the

Constitution of the Islamic Republic of Pakistan, 1973 (‘Constitution’)

and they have sought leave against the judgment, dated 01.02.2024,

passed by the High Court whereby the petition filed under Article 199

was dismissed solely on the ground of maintainability.

An application was filed by Muhammad Azam (‘respondent

No.1’) before the revenue officials for demarcation of the property

described therein. The Gardawar Halqa (‘respondent No.6’), after

completing the demarcation proceedings, vide report dated 13.10.2021

had concluded that encroachments were made by the petitioners. The

latter preferred an appeal before the Assistant Commissioner

(‘respondent No.4’) and it was dismissed vide order dated 17.1.2022.

The petitioners invoked the revisional jurisdiction and their petition

was dismissed by

the

Additional Commissioner (Revenue)

[‘respondent No.3’] vide order dated 13.4.2022. The petitioners then

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assailed the orders before the Member (Judicial-IV), Board of Revenue,

Punjab (‘respondent No.2’) and their revision petition was also

dismissed vide order dated 06.12.2022. The petitioners ultimately

invoked the constitutional jurisdiction of the High Court, vested under

Article 199 of the Constitution, but the petition was dismissed on the

sole ground of maintainability. The learned High Court was of the view

that the remedy provided under section 8 of the Punjab Board of

Revenue Act 1957 (‘Act of 1957’) was adequate and efficacious and,

therefore, the petition under Article 199 was not competent.

We have heard the learned counsel for the parties. The

petitioners had challenged the orders passed by the respective revenue

officials before the High Court by invoking the jurisdiction vested in it

under Article 199 of the Constitution. They had raised multiple

grounds in their petition for challenging the said orders. However, the

High Court was of the opinion that since the remedy by way of review,

provided under Section 8 of the Act of 1957, was adequate and

efficacious, therefore, the petition under Article 199 of the Constitution

was not maintainable.

We have noted that the High Court, without adverting to the

grounds expressly taken by the petitioners in their petition, concluded

that the remedy by way of review provided under section 8 of the Act of

1957 was adequate and efficacious for the purposes of entertaining the

petition under Article 199 of the Constitution. It is settled law that the

rule that the High Court will not ordinarily entertain a petition under

Article 199 when an adequate remedy is available and such remedy

only regulates the exercise of constitutional jurisdiction and does not

affect its existence. When the law provides an adequate remedy,

constitutional jurisdiction under Article 199 will ordinarily only be

exercised in exceptional circumstances. The exceptional circumstances

CP 888/24

which may justify exercising jurisdiction when an adequate remedy is

available are when the order or action assailed before the High Court

is palpably without jurisdiction, manifestly malafide, void or corum non

judice. The tendency to bypass a statutory remedy is ordinarily

discouraged so that the legislative intent is not defeated. The High

Court, while exercising its discretion, must take into consideration the

facts and circumstances in each case in order to determine whether

the remedy provided under the statute is illusory or not. These

principles have been consistently highlighted by this Court.1

The power of review stems from the statute and, therefore, it is

to be exercised by a court or an authority having regard to the

conditions and limitations expressly prescribed by the legislature. The

scope of review is distinct from that of an appeal. In case of an appeal

all questions of fact and law are to be considered but the scope of a

review is limited to the conditions and limitations expressly provided

under the relevant statue which confers the power. Sub-section (1) of

section 8 of the Act of 1957 sets out the scope and the grounds for

exercising the power of review. The three grounds expressly stated in

section 8(1) of the Act of 1957 are:(i) discovery of new and important

matter or evidence which, after the exercise of due diligence, was not

within the knowledge or could not be produced by the person seeking

review at the time when the decree was passed or the order was made,

(ii) some mistake or error apparent on the face of the record and lastly,

1Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279),

Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmad and

Company (Pvt.) Limited, Islamabad (1999 SCMR 138), Khalid Mehmood v. Collector of

Customs, Customs House, Lahore 1999 SCMR 1881), Ch. Muhammad Ismail v.

FazalZada, Civil Judge, Lahore and 20 others(PLD 1996 SC 246), Income-Tax Officer

and another v. M/s. Chappal Builders (1993 SCMR 1108), Commissioner of Income

Tax, companies-II and another v. HamdardDawakhana (Waqf), Karachi (PLD 1992 SC

847), AbdurRehman v. Haji Mir Ahmad Khan and another (PLD 1983 SC 21), The

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan,

Works Division and 2 others (PLD 1972 SC 279), Col. Nawabzada Muhammad Amir

Khan v. The Controller of Estate Duty and others (PLD 1961 SC 119), Tariq Transport

Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others (PLD 1958

SC 437

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‘for any other sufficient reason’. The review jurisdiction conferred

under section 8 of the Act of 1957 is, therefore, confined and limited to

the said three grounds. This Court has held in the case of Muhammad

Din2 that the expression ‘for any other sufficient reason’ does not

extend to every cause which would make the remedy by way of review

available but such cause must be relatable to the circumstances as

discovery of new and important matter or some mistake or error

apparent on the face of the record. The expression, therefore, is to be

read ejusdem generis with the preceding expressions or grounds. Any

other interpretation would change the nature of the review contrary to

the legislative intent, because the legislature had indeed not intended

to provide the remedy of an appeal. The scope of the review jurisdiction

under section 8 of the Act of 1957 is, therefore, restricted to the

grounds expressly prescribed by the legislature.

We have gone through the impugned judgment and it is obvious

from its plain reading that the High Court, without adverting to the

grounds taken by the petitioners, had dismissed the petition solely on

the ground that the remedy of review under section 8 of the Act of

1957 was adequate. This conclusion, without examining the grounds

taken by the petitioners, was not sustainable. The High Court could

only have formed an opinion whether the remedy under section 8 of

the Act of 1957 was adequate and efficacious in the light of the facts

and circumstances of the matter before it, particularly having regard

to the grounds taken by the petitioners in their petition. Any ground

taken and not covered within the scope of the jurisdiction of review

provided under section 8 of the Act of 1957 would have rendered the

remedy illusory and definitely not adequate for the purposes of

exercising jurisdiction under Article 199 of the Constitution. This

2Muhammad Din and others v. Muhammad Amin and others (PLD 1994 SC 288)

Riaz Hussain and others v. Board of Revenue and others (1991 SCMR 2307)

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Court, in the case of Syed Asad Hussain3 has observed that the

expression adequate remedy represents an efficacious, reachable,

accessible, advantageous and expeditious remedy. The High Court,

therefore, misdirected itself by excluding from consideration the

grounds taken by the petitioners so as to determine whether the

review jurisdiction was adequate in the context of exercising

jurisdiction vested in it under Article 199 of the Constitution.

Moreover, the expansive interpretation given to the expression 'for any

other sufficient reason' amounted to changing the scope of the review

jurisdiction not intended by the legislature. If the High Court, after

examining the grounds taken by the petitioners and the facts and

circumstances of the case in hand was satisfied that they were covered

within the scope of the remedy expressly provided under section 8 of

the Act of 1957 then it would have been justified in deciding the

question of maintainability of the petition under Article 199 of the

Constitution. We are afraid that this was not what the High Court did

in the case before us.

For the foregoing reasons, we convert this petition into an appeal

and the same is allowed by setting aside the impugned judgment.

Consequently, we remand the matter to the High Court for deciding

the question of maintainability in the light of the principles highlighted

above.

Judge

Islamabad the

12th June 2024

APPROVED FOR REPORTING

Aamir Sheikh/Rameen Moin

Syed Asad Hussain and others v. Syed Ghulam Khatib (2023 SCMR 325)

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