MUHAMMAD ASLAM vs SENIOR MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB and others

' MUNIR A. SHIKH, J.---The Constitutional petition filed by the petitioner has been dismissed by the learned Judge in the Chambers of the Lahore High Court through the impugned judgment, dated, 7-5-2003 for the reason that alternate remedy of invoking arbitration clause in the agreement was available which should be availed against which leave is sought.

2. Learned counsel for the petitioner submitted;--

(a) That mere availability of alternate remedy was not a ground for holding that Constitutional petition was not maintainable unless it had been decided by application of judicial mind whether the same was in fact, available and if so, it was adequate and efficacious remedy.

(b) That even, if such alternate remedy was available, the same did not render the Constitutional petition unmaintainable, for the availability of alternate remedy is only relevant to decide whether discretion under Article 199 of the Constitution to interfere in the matter should be exercised or not which decision A was to be taken on judicial application of mind to the facts of each case, therefore, it was not a matter affecting the jurisdiction of the Court to entertain the Constitutional petition and the finding that the same was not maintainable constitutes a decision that the Court was not vested with the jurisdiction to entertain the Constitutional petition.

(c) That the writ petition was dismissed after ten years of its admission, therefore, it was not a case of exercise of discretion in favour of not to decide the case on merits.

(d) That in the agreement, the Commissioner by virtue of his office was named as arbitrator and the said office having been abolished under the new District Government System, therefore, the said clause had been rendered ineffective, therefore, even the alleged alternate remedy was not available.

3. Learned counsel for the petitioner submitted that while passing the impugned judgment, these aspects of the case appear to have not been given consideration.

4. Miss Yasmin Sehgal, learned A.A.-G. Punjab present in the Court in connection with some other case, was given notice to assist the Court She has been heard.

5. For the foregoing reasons, this petition is converted into appeal, the same is accepted, judgment, dated 7-5-2003 of the High Court is set aside and the case is remanded to the said Court for disposal of the writ petition on merits.

6. It is an old matter, therefore, learned counsel for the petitionerseeks direction for expeditious decision of the writ petition.

7. He shall approach the learned Chief Justice of the Lahore High Court as it is his prerogative to regulate the roster and pass appropriate order.