Muhammad Aslam vs Sr. Member (Colonies) Board of Revenue, Punjab
This matter originated from a constitutional petition dismissed by the Lahore High Court on the grounds that an alternate remedy, specifically an arbitration clause in an agreement, was available to the petitioner. The petitioner challenged this dismissal before the Supreme Court, arguing that the mere existence of an alternate remedy does not automatically render a constitutional petition unmaintainable. The petitioner further contended that the High Court failed to apply its judicial mind to determine whether the remedy was adequate and efficacious, and noted that the designated arbitrator's office had been abolished, rendering the arbitration clause ineffective. Additionally, the petitioner highlighted that the petition had been pending for ten years, making dismissal at that stage inappropriate. The Supreme Court accepted the appeal, set aside the High Court's judgment, and remanded the case for a decision on the merits. The Court held that the availability of an alternate remedy is a factor for exercising judicial discretion under Article 199 of the Constitution of Pakistan 1973, rather than a jurisdictional bar, and that courts must evaluate the adequacy and efficacy of such remedies before declining to exercise jurisdiction.
- Does the mere availability of an alternate remedy render a constitutional petition unmaintainable?
- Is the availability of an alternate remedy a matter of jurisdiction or a factor for the exercise of judicial discretion under Article 199?
- Must a court determine if an alternate remedy is adequate and efficacious before dismissing a constitutional petition on that ground?
- Article 199, Constitution of Pakistan 1973
MUNIR A. SHEIKH, J:-- The Constitutional petition filed by the petitioner has been dismissed by the leaned Judge in Chamber 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 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 tnat 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 petitioner seeks 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. .