1982 PLP 249 (CLC)

to ... . . . .. to . . . . . to . to . or, if he objects so to do, to appear before himself or some other Magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided. (2) No .. Explanation A bear perusal of the above provisions show that the final order passed by the Assistant Commissioner and impugned in this petition is not in accord with the provisions quoted above for under these provisions the Deputy Commissioner was required to give an opportunity to the petitions in case he objects to demolition or removal of the structure to appear before hire ors.! some other Magistrate of the First Class or Second Class at a time and place to be fixed by the order and to have the order set aside or modified in the manner hereafter provided. The manner provided is contained in section 137 Cr. P. C. which provides as follows :‑ "

137. Procedure where he appears to shod, cause.‑(1) If he appears and show cause against the order, the Magistrate shall take evidence in the matter in the manner provided in Chapter XX. (2) if the Magistrate is satisfied that the order is not reasonable proper, no further proceedings shall be taken in the case. (3) If the Magistrate is not so satisfied, the order shall be made absolute." Thus the petitioner was given no opportunity whatsoever to appear and show cause against the order. Therefore, it is clear that respondent No. 1 has acted in excess of the jurisdiction vested in him and therefore, the order passed is illegal and illegality is patent on the face of the order. Mr. A. A. Fazeel has however contended that the petition is not maintain able as alternate remedy by way of revision was available to the petitioner. The learned counsel submitted that other shopkeepers also had filed similar petition against similar orders but they had withdrawn the same and flied revision in which the order was set aside. However, it is well settled that when an order is patently without jurisdiction or in excess of jurisdiction such an order could be declared in the exercise of constitutional jurisdiction to be without lawful au thority. If any authority is needed reference can be had to Lt: Col. Nawabzada Muhammad Amir Khan v. Controller of State Duty and others (P L,D1961SC119), Burmah Oil Company (Pakistan Trading) v. The Trustees of the Port of Chittagong (PLD1962SC113), Pakistan and another v. Qazi Ziauddin (PLD1962SC440). Abdul Ghani and another v. Govern ment of Pakistan and others (P L D 1968 S C 131), Messrs Usmania Glass Sheet Factory Ltd., Chittagong v. Sales Tax Officer, Chittagong (P L D 1971 S C 205) and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others (P L D 1972 S C 279). In Burmah Oil Company's case it was observed by Waheeduddin Ahmed, J. at page 118 of the report as follows :‑ "We consider that since the question which arose was one of fiscal right based upon a statutory instrument, it was an easily and conveniently determined in a writ petition as by means of a suit. By the exempting notification, a duty was cast upon the taxing authority viz., the Port Trustees to relieve the subject against certain imposition and thereby a corresponding right to such relief was created, in favour of the subject: Mandamus is in every way an appropriate remedy for the assertion of such a right by enforcement of the corresponding duty." In Pakistan and another v. Qazi Ziauddin, Kaikaus, J. at page 449 observed :‑ "But there is even a stronger reason why the objection should be repelled. In the very case which has been relied upon by the learned Attorney‑ General, that is, Messrs Haroon and others v. The Collector of Customs, Karachi and another P L D 1959 S C (Pak.) 177 it had been held that the failure to appeal against the order of the Collector was not necessarily a bar to the filing of a petition for certiorari for the objection as to there being an alternative remedy was not of such weight in the case of certiorari as it was in the case of mandamus, and if there was either absence or excess of jurisdiction or the impugned order suffered from illegality on the face of the record a certiorari could be granted ever, though the remedy by way. of appeal had not been availed of." Similarly in Abdul Ghani's case it was held by Fazale‑Akber, J. at page 139 of the report as follows :‑ "Anything done beyond or in excess of powers conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case, the High Court can examine if the officer concerned has acted in. accordance with the powers conferred upon him by the statute." In the last named case Salahudain Ahmed, J. observed at page 287 of the report as follows "If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance its appeal under section 36 would have been in exercise in futility. It was held by the Supreme Court in Lt.‑Col. Nawabzada Muhammad Amir Khan v. Controller of Estate. Duty and others P L D 1961 S C 119, that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. The appellant has also alleged mala fide in law against the C. D. A., a statutory functionary. In the case of East & West Steamship Co. v. Pakistan P L D 1958 S C (Pak.) 4l this Court has held that where a Statutory functionary acts mala fide or in a partial, unjust and oppres sive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question." We therefore, declare the order impugned in this petition has been passed without lawful authority and is accordingly of no legal effect. However, this will not preclude the respondent from passing order in accordance. with law. In the circumstances of the case we leave the parties to bear their own costs. M. Y. H. Petition allowed.