Writ is not maintainable if any other remedy available .

RAWALPINDI BENCH, RAWALPINDI.

JUDICIAL DEPARTMENT

W.P.No.2154 of 2022

Syeda Farzana Batool, etc.

Versus.

Iltaf Hussain Shah, etc.

JUDGMENT.

Mirza Viqas Rauf, J. This petition under Article 199 of the

Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred

to as “Constitution”) assails the vires of order dated 15th June, 2022

passed by the Member (Judicial-IV), Board of Revenue, Punjab in a

revision petition filed by the petitioners whereby he proceeded to dismiss

the petition being devoid of force and merits. This petition was admitted for

regular hearing by way of order dated 29th July, 2022, however, on

previous date a question was framed with regard to the maintainability of

this petition with the following observations: -

“2.

It appears that the constitutional petition is arising out

of order dated 15th June, 2022 passed by the Member (Judicial-IV)

Board of Revenue, Punjab Rawalpindi Camp on a revision arising

from proceedings under the Punjab Land Revenue Act, 1967. In terms

of Section 8 of the Punjab Board of Revenue Act, 1957 remedy of

review is available and apparently main petition is not maintainable.

Office to list out this C.M alongwith main petition on

13.12.2023. On the said date the respondents/ writ petitioners shall

W.P.No.2154 of 2022

assist the Court with regard to maintainability of the petition with no

further adjournment.”

Learned counsel for the petitioners, while addressing the

question of maintainability, submitted that remedy of review is not

efficacious in the circumstances. He added that even otherwise, the scope

of review is always limited. Learned counsel contended that constitution

petition, in the circumstances is thus, maintainable.

Conversely, learned counsel representing the respondent No.1

as well as learned Law Officer seriously resisted the maintainability of this

petition.

Heard. Record perused.

It evinces from the record that respondent No.1 moved an

application under section 135 of the Punjab Land Revenue Act, 1967

(hereinafter referred to as “Act, 1967”) before Tehsildar/AC-I, Chakwal

seeking partition of the joint land forming part of Khasra Nos.930 and 932

situated in village Minwal, Tehsil & District Chakwal. After passing

through various phases, the application for partition was finally accepted

on 12th December, 2020. Feeling dissatisfied, predecessor-in-interest of the

petitioners namely Amir Hussain Shah preferred two appeals under section

161 of the “Act, 1967” before the District Collector, Chakwal, which were

dismissed on 31st March, 2021. The order was then challenged in revision

petitions before the Additional Commissioner (Consolidation), Rawalpindi

Division but the revisions were also dismissed vide order dated 14th

October, 2021. The petitioners then challenged the said order through

revision petition under section 164 of the “Act, 1967” before the Board of

Revenue, Punjab wherein the impugned order was passed. It is, thus,

evident that the impugned order arises out of proceedings conducted by the

revenue hierarchy under the “Act, 1967”.

In order to provide for constitution of Board of Revenue, the

Punjab Board of Revenue Act, 1957 (hereinafter referred to as “Act,

1957”) was promulgated. The Board of Revenue was constituted in terms

of section 3 of the “Act, 1957”, which was given the general

W.P.No.2154 of 2022

superintendence and control over all Revenue Officers and Revenue

Courts. Section 5 of the “Act, 1957” vests certain powers upon the Board,

which reads as under: -

5. Powers of the Board.– (1) The Board shall be the controlling

authority in all matters connected with the administration of land,

collection of land revenue, preparation of land records and other

matters relating thereto.

(2) The Board shall be the highest court of appeal and

revision in revenue cases in the Province.

(3) All proceedings relating to any of the matters referred to in

sub-sections (1) and (2) which immediately before the date of

coming into force of this Act, were pending before the final

appellate or revisional authority of any Province, State or other

territory or area which has been included in the Province of

Punjab, shall stand transferred to the Board.

Section 8 of the “Act, 1957” bestows power of review upon the

Board. For ready reference and convenience, same is reproduced below: -

8. Review of orders by the Board.– (1) Any person considering

himself aggrieved by a decree passed or order made by the Board

and who, from the discovery of new and important matters or

evidence which, after the exercise of due diligence, was not within

his knowledge or could not be produced by him at the time when

the decree was passed or the order was made, or on account of

some mistake or error apparent on the face of the record or for

any other sufficient reason desires to obtain a review of the decree

passed or order made against him, may apply to the Board for a

review of judgment and the Board may, after giving notice to the

parties affected thereby and after hearing them, pass such decree

or order as the circumstances of the case require.

(2) Every application for a review of a decree or order under subsection (1) shall be made within ninety days from the date of that

decree or order.

(Underlining supplied for emphasis)

It would not be out of place to mention here that the words “or for any

other sufficient reason” were inserted by Act XVIII of 1964, which

apparently was added to extend the scope of review by the Board.

Article 199 of the “Constitution” though bestows power upon

this Court to issue different kinds of writs mentioned therein but powers so

ordained are not unbridled as is evident from the bare perusal of Article

199 of the “Constitution”, which starts with a precondition in the following

form:

W.P.No.2154 of 2022

199. Jurisdiction of High Court. (1) Subject to the

Constitution, a High Court may, if it is satisfied that no other

adequate remedy is provided by law-

(a)

on the application of any aggrieved party, make

an order —

(i)

directing a person performing, within the

territorial jurisdiction of the Court, functions in

connection with the affairs of the Federation, a

Province or a local authority, to refrain from doing

anything he is not permitted by law to do, or to do

anything he is required by law to do; or

(ii)

declaring that any act done or proceeding taken

within the territorial jurisdiction of the Court by a

person performing functions in connection with the

affairs of the Federation, a Province or a local

authority has been done or taken without lawful

authority and is of no legal effect; or

(b)

on the application of any person, make an

order—

(i)

directing that a person in custody within the

territorial jurisdiction of the Court be brought before it

so that the Court may satisfy itself that he is not being

held in custody without lawful authority or in an

unlawful manner; or

(ii)

requiring a person within the territorial

jurisdiction of the Court holding or purporting to hold a

public office to show under what authority of law he

claims to hold that office; or

(c)

on the application of any aggrieved person,

make an order giving such directions to any person or

authority, including any Government exercising any

power or performing any function in, or in relation to,

any territory within the jurisdiction of that Court as may

be appropriate for the enforcement of any of the

Fundamental Rights conferred by Chapter 1 of Part II.

(underlining supplied for emphasis)

There is no cavil to the proposition that despite availability of

alternate remedy, this Court is not precluded to exercise its jurisdiction as

a rule of thumb and even in case of availability of alternate remedy, if the

circumstances so demand that the exercise of constitutional jurisdiction is

inevitable, a High Court can invoke the jurisdiction under Article 199 of

the “Constitution” but at the same time, such exercise cannot be made in

an omnibus fashion. It is an oft repeated principle of law that where any

W.P.No.2154 of 2022

party opts to choose a statutory remedy against an order, it cannot

abandon or bypass it without any valid or reasonable cause and file

constitution petition challenging such order. Such a trend is even offensive

of doctrine of election. Guidance in this respect can be sought from

COMMISSIONER OF INCOME TAX, COMPANIES-II and another v.

HAMDARD DAWAKHANA (WAQF), KARACHI (PLD 1992 Supreme

Court 847). The relevant extract from the same is reproduced below: -

“12. Before parting with the judgment we may

observe that in cases where any party resorts to a statutory

remedy against an order he cannot abandon or bypass it

without any valid and reasonable cause and file Constitution

petition challenging the same order. Such practice, in cases

where statute provides alternate and efficacious remedy upto

High Court, cannot be approved or encouraged. In a recent

judgment of this Court in CA. No.79-K of 1991, one of us

(Ajmal Mian, J.) in similar situation observed as follows:

"We may now revert to the question, whether the

appellant was justified to file above Constitution

petition against the order of the Tribunal instead

of invoking section 136 of the Ordinance for

making a reference to the High Court. According

to Mr. Rehan Naqvi, a reference under the above

provision would not have been adequate and

efficacious remedy as it would have taken years

before it could have been heard. The same could

be true for a Constitution Petition.

The tendency to bypass the remedy provided under

the relevant statute and to press into service

Constitutional jurisdiction of the High Court has

developed lately, which is to be discouraged.

However, in certain cases invoking of

Constitutional jurisdiction of the High Court

instead of availing of remedy provided for under

the relevant statute may be justified, for example

when the impugned order/action is palpably

without jurisdiction and/or mala fide. To force an

aggrieved person in such a case to approach the

forum provided under the relevant statute may not

be just and proper.

In the present case, the appellant had opted to

avail of the hierarchy of forums provided for

under the Ordinance upto the stage of filing of

appeal before the Tribunal and, therefore, it would

have been proper on the part of the appellant to

have invoked section 136 of the Ordinance for

making a reference to the High Court instead of

filing a Constitutional petition. In our view, once a

party opts to invoke the remedies provided for

W.P.No.2154 of 2022

under the relevant statute, he cannot at his sweet

will switch over to Constitutional jurisdiction of

the High Court in the mid of the proceeding in the

absence of any compelling and justifiable reason."

Reference can also be made to TRADING CORPORATION OF PAKISTAN

versus DEVAN SUGAR MILLS LIMITED and others (PLD 2018 Supreme

Court 828).

10.

For the foregoing reasons, this petition is not maintainable.

Resultantly, the same is dismissed with no order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

Approved for reporting.

JUDGE

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