SULTAN MUHAMMAD Versus GOVT. OF WEST PAKISTAN

The petitioner is the keeper of the Punjab Press, Watan Building, Circular Road, Lahore. Two books, entitled Jewani Ke Raaz and Shab‑e‑Uroos4. written by one Yasoob‑ul‑Hassan, were printed at his Press, in the year 1962.. On 25th February 1964, the Secretary to the Government of West Pakistan. Information Department, Lahore, sent a notice to the petitioner, informing him that the above two books printed at his Press contained objectionable matter within the meaning of section 24 (1) (f) of the West Pakistan Press and Publications Ordinance, 196'3 (hereinafter referred to as the `Ordinance') and called upon him to show cause within a week, after the receipt of this letter, why security as envisaged under section 23 (1) of the said Ordinance should not be demanded from him. The Manager of the Press almost. immediately, on 28‑2‑1964, sent a reply to the Secretary, Information Depart ment, acknowledging the receipt of the notice, and stating in his reply that it was possible that the two books, mentioned in the notice, may have been published in their Press, though till date he had not been able to discover any record to that effect and further stating that this might be, because it was only since a short period that he had started working in the Press and the books had not been printed since he had started to work therein. It was, also stated in the reply that anyhow in future care would be taken that books containing objectionable matter were not published.

2. Nothing was heard by the petitioner with respect to this matter for nearly six months, when on 11‑8‑1964 a notice under subsection (1) of section 23 of the West Pakistan Press and Publications Ordinance, 1963, was issued by the Order of the Governor of West Pakistan and signed by the Home Secretary to the Government of West Pakistan, to the effect that the Press of the petitioner had been used for the purpose described in clause (f ) of subsection (1) of section 24 of the Ordinance, namely, to print the matter listed in the attached sheet in the books entitled Shab‑e‑Uroosi and Jnwant Ke Raaz. Therefore, in exercise of the powers conferred by subsection (1) of section 23 of the said Ordinance, the Governor of the West Pakistan required him to deposit with the District Magistrate of Lahore. on or before the 26th day of August 1964, security to the amount of Rs. 20,000 or the equivalent thereof in securities of the Government of West Pakistan. The validity of the aforesaid notice is challenged by this writ petition.

3. A preliminary objection has been raised to the entertainability of this writ p:tition, on the ground that an alternative remedy by way of appeal was provided in the Ordinance, and as the petitioner had an adequate remedy, the present petition was barred.

4. In reply, it is submitted that the impugned notice being without jurisdiction, the petitioner could straightaway challenge it by this writ petition and that the availability of the alternative remedy was no bar to the prefer ment of the writ petition.

5. As this objection goes to the root of the matter, it is necessary to attend to it in the first instance.

6. The provision with regard to an appeal is contained in section 48 of the Ordinance, the relevant part of which is in the following terms :‑

"48. Appeal from certain orders of Government.‑41) The keeper of a printing press who has been ordered to deposit security under sub section (1) of section 23. . . may within two months from the date of such order or injunction, prefer an appeal to the Government."

Section 50 of the Ordinance lays down the procedure to be observed in connection with such appeals. The provisions of subsection (2) and sub. section (3) are of some relevance and may be reproduced hereunder :‑

"(2) The Tribunal to which an appeal is sent under subsection (1) may, after holding such inquiry as it may consider necessary, and after giving the appellant and the Government an opportunity of being heard, pass such order as may be deemed fit.

(3) The Tribunal shall not issue any ad interim injunction or other order restraining the operation of the Government order appealed from, pending the passing of an order under subsection (2)."

7. The contention is that insofar as subsection (3) of section 50 lays down that a Tribunal shall not issue any ad interim injunction or other order restraining the operation of the Government order appealed from, pending the passing of an order under subsection (2), the amount of security demanded under the Government order has to be deposited if the penal conseq4ences of not complying with the Government order are to be avoided.

In view of this situation, it is contended that the remedy of appeal provided in the Ordinance is not an "adequate remedy". The question, therefore, is whether the aforesaid remedy by way of appeal provided in the Ordinance was an "adequate remedy" which would have the effect of constituting a bar to the entertainability to this petition under Article 98 of the 1962 Constitution.

8. The learned counsel for the petitioner has argued that where an order passed by a statutory authority is without jurisdiction, the validity of such an order can be challenged by a petition before this Court under the writ jurisdiction without resorting to the remedy of appeal or revision pro vided against such an order in the statute. In other words, the Departmental remedies can be bye‑passed and the matter brought directly before this Court under its writ jurisdiction where the order impugned is without jurisdiction. In this connection attention was invited to S. A. Haroon v. Collector of Customs, Karachi (1). The following passages from the said judgment are important :‑

"The point has been raised by the learned Attorney General on behalf of the Federation of Pakistan and the Collector of Customs in these cases that the Sea Customs Act was a self‑contained statute, providing for a complete machinery for redress against orders of the Collector of Customs and, therefore, the respondents in the criminal appeals and the appellants in the civil appeal (hereinafter referred to collectively as the aggrieved parties) should have been confined to the remedies available to them under the Act and their writ petitions ought to have been dismissed on that ground alone. Section 188 of the Act gives a right of appeal against an order of the Collector of Customs to the Board of Revenue (the Chief Customs Authority) whereas a further revision lies to the Central Government under section 191 of the Act.

In most cases, Courts would act on the general common law rule "that cetriorari will not lie when there is another adequate remedy by appeal, writ of error or otberwise, where an inferior Court has jurisdiction" . (Ferris on Extraordinary Legal Remedies, page 185). But in a proper case where the question of jurisdiction is raised, the extraordinary jurisdiction of the High Court may be successfully invoked by way of certiorari.

In the present cases, the question of jurisdiction is raised by the con tention that the Collector of Customs had no authority to seize any particular goods, unless there was prima facie evidence to suggest at least that the goods were covered by a notification imposing any restriction or ban on its import. That was a condition precedent to the exercise of the power of seizure conferred by law and the case of the aggrieved parties is that the Collector acted without satisfying himself on this vital point. The question of interpretation of the law involved is of considerable importance and might frequently arise. In the circumstances of these cases, therefore. I am not disposed to give effect to the technical objection raised by the learned Attorney General."

The same principle has been re‑iterated in Nagina Silk Mills v. Income‑tax Officer ( P L D 1959 S C (Pak.) 177 ), wherein their Lordships approved their earlier dictum in the case of S. A. Haroon v. Collector of Customs, Karachi and went on to add "That relief in these cases could not have been obtained as quickly or with as much facility and convenience under the Act which provides for a series of appeal, 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." No doubt, these remarks were made in the context of the jurisdiction conferred on the High Court under the 1956 Constitution and the Laws (Continuance) in Force Order, 1958, when the High Courts were empowered to issue writs in the nature of mandamus, certiorari etc., but the same principle has been enunciated while interpreting the provisions of Article 98 of the 1962 Constitution, in Mahboob Ali Malik v. Province of West Pakistan (P L D 1963 Lah. 57), wherein the expression "other adequate remedy" was discussed and the following observations were made :‑

"The comparison must be based on factors which intrinsically make the alternative remedy less 'convenient'. If for example a point of law were being raised that a certain department had no authority over the person affected, and before he could agitate that point in the departmental forum a deposit were required to be made by him, the case might well be one in which the requirement of having to deposit the money,may rob the departmental remedy of its adequacy, for the person aggrieved. in so far as the insistence on the deposit would amount to compelling him to submit to the very jurisdiction to which he claims he is not subject. This illustration, however, is to be distinguished frola the case where the grievance is that the department or any of its func tionaries, is acting illegally, or with material irregularity, in the exercise of a jurisdiction which they possess. In that eventuality if a depart mental forum of correction is available, it would not be justifiable to bye‑pass it on the ground that some fee is payable or some deposit is obligatory before the departmental remedy can be availed of."

Thus if it can be shown that the order passed was without jurisdiction, the petitioner could bye‑pass the alternative remedy and approach this Court directly, especially when the departmental remedy is less "convenient", in volving as it does the deposit of the security demanded, pending the final disposal of such an appeal.

9. In order to establish that the impugned order was passed without jurisdiction, the learned counsel pointed out that the show‑cause notice was issued on 25‑2‑1964 on behalf of the Secretary Information and the reply was submitted on 28‑2‑1964, but that without hearing the petitioner and without referring to his explanation, the impugned notice demanding payment of security was issued. In so doing, it was contended, the respondent acted without jurisdiction and section 71 of the Ordinance was relied upon in this behalf. It reads as under :‑

"71. Opportunity to be heard to be given to persons against whom certain orders are to be passed .‑Notwithstanding anything contained in this Ordinance, no such order as is referred to in subsection (5) of section 22 or subsection (1) of section 48 shall be made against any person except after giving such person an opportunity of being heard by the officer or authority making the order."

The power under section 71 can be delegated (see sectien 70 of the Ordinance) although it is not clear from the record as to wbether the power in the instant case was delegated to the Information Secretary or the Home Secretary, or to both, but there is no dispute that neither the Information Secretary, nor the Home Secretary, nor the Governor, in whose name the order was expressed, gave any opportunity for a hearing to the petitioner. The provisions of section 71 are mandatory in character, because the provibions thereof prescribe the procedure to be followed before making any of the orders referred to in subsection (5) of section 22 and in subsection (1) of section 48. In the last‑mentioned provision (section 48), orders made under section 23 have been referred to. Accordingly, no order under section 23 of'i the Ordinance can be made until the person affected has been given an oppor tunity of being heard by the officer or the authority making the order. It is not denied that the person making the order gave no opportunity to the petitioner of being heard. Hence the non‑compliance of the condition pre requisite for making the order would render the impugned order as without jurisdiction. In somewhat similar circumstances the Supreme Court in Atta Muhammad Qureshi v. Settlement Commissioner ( P L D 1971 S C 61 ) came to the same con clusion. The relevant part of the judgment of Mr. Justice Sajjad Ahmad Jan, speaking on behalf of the Court, may be reproduced hereunder with advant age :‑

"I have reached the conclusion that sub‑clause (5) of section 20 of the Act is mandatory in character and places a limitation on the juris diction of the revising authority not to make any adverse order against a person without giving him opportunity to show cause against it. If such an order is made without fulfilment of this pre‑requisite, it would certairdy lack jurisdiction."

The impugned order being without jurisdiction, it could be impugned by a petition under Article 98 of the Constitution, without availing of the alter native remedy of appeal provided in the statute.

10. It may also be mentioned that the authority issuing the show‑cause notice was different from the authority which passed the impugned order. As observed already, the show‑cause notice was issued by the Information Secretary, whereas the impugned order purports to have been passed by the Order of the Governor, by the Home Secretary. Furthermore, no reference' has been made in it to the explanation submitted by the petitioner and it appears that the authority passing the final order has not at all applied its mind to the cause shown. The impugned order is bad on these grounds as well.

11. The impugned order suffers from another weakness as well. The objectionable portions of the books were not specified in the show‑cause notice, and in the absence of such a specification the notice became "in sufficient and unenforceable". See Muhamrnad Muzajfar Khan v. State ( P L D 1959 Pesh. 77 ) The above ruling is based on the interpretation of the provisions of section 7 (3) of the Press (Emergency Powers) Act, 1931, the language where of is in par! materia with the relevant provisions of the Ordinance in question.

12. For all these reasons the impugned notice under section 23 (1) of the Ordinance demanding security from the petitioner cannot be sustained. It is declared to be without lawful authority and of no legal effect. The writ petition is accepted, but the parties are left to bear their own costs. s. Q. Petition accepted.