1999 PLP 885 (CLC)

(iii) Awarad costs of the petition (iv) Also any other equitable relief which the Honourable Court deems fit and appropriate be granted to the petitioners. According to the facts as disclosed in the petition, the petitioners are tenants of the respondent No. l (Larkana Municipal Corporation) in respect of their shops, and they are regularly paying rent of their respective shops ranging from Rs.17 to 190 per month to them. In the month of November, 1998 the petitioners were called by the respondent No.2 in his office and they were orally informed about the enhancement of rent of their shops up to Rs.500 and Rs.800 per month. The petitioners were also threatened that in case of non‑payment of rent at the enhanced rates, their shops will be sealed and re‑let to. others. Thereafter, from the petitioners Nos. l, 7, 9, 11, 12, 13, 15, 16, 17, 21 and 22 rent was also forcibly recovered at the enhanced rate, which they have paid under protest. These actions of the respondents had given cause of grievance to the petitioners for filing of the present petition on the ground that they have been condemned unheard in the matter and further the respondents Nos. l and 2 have no jurisdiction to enhance the rent of the shops in their possession. After service of pre‑admission notice on the respondents, the respondent No. l has filed his written statement on 17‑12‑1998, wherein he has mentioned that the petitioners are tenants of the respondent No. 1, but paying a meager rent looking to the prevailing market rental value of the shops in their possession. Respondent No. I is running in financial crisis, even having no funds to make payments to their staff or to improve sanitation and health facilities. Looking to this financial situation of respondent No. l a meeting was held to raise funds and respondent No.2 was requested for this purpose. Notices were issued to the tenants as well as to the prominent citizens, representatives of various Trade Unions and Chamber of Commerce and such meeting was held on 28‑10‑1998 under the Chairmanship of respondent No.2. In this meeting after deliberations and discussion the petitioners were taken into confidence and it was unanimously resolved, to enhance the. rate of rent of the shops of respondent No. l . Thereafter, re‑assessment was carried and fair rent of all the shops was fixed and such decision was accepted by more than 850 tenants of the respondent No. l and accordingly they are making payment of rent to the respondent No. l and even many of the petitioners are also making the payment of rent. Respondent No. l has further disclosed that the petitioners have participated in the meeting and consented for such enhancement of rent and, thus, the petition is not maintainable. The maintainability of the petition has also been challenged on the ground of availability of alternate remedy to the petitioners under sections 108 and 113 of the Sindh Local Government Ordinance, 1979. We have heard Mr. Moohan Lal. K. Makhijani, the learned counsel for the petitioners, Mr. Muhammad Nawaz Chandio, the learned counsel for the respondent No. l and Mr. Ali Azhar Tunio, the learned A.A.‑G. for respondents Nos. 2 and

3. The learned counsel for the petitioners has contended that the enhancement in the rate of rent as ordered by respondent No.2 is patently illegal as the petitioners were not provided any chance of hearing in the matter, and such order has been passed in violation of the principle of natural justice. Learned counsel has also contended that the enhancement of rent as ordered by respondent No.2 is in violation of Article 4 of the Constitution of Islamic Republic of Pakistan (1973) as it is the fundamental right of every citizen that he shall be dealt with in accordance to the law. Lastly the learned counsel has contended that the availability of alternate remedy under section 108 of the Sindh Local Government Ordinance, 1979, is not an efficacious and adequate remedy and, thus, the jurisdiction of this Court, in such circumstances, is not barred. He has placed his reliance on the case‑law reported as The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279, United Sugar Mills Ltd., Karachi v. District Magistrate, Sukkur and another PLD 1979 Kar. 410, Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC

738. Conversely Mr. Muhammad Nawaz Chandio, the learned counsel for respondent No.l has argued that enhancement in the rate of rent was ordered by respondent No. l after due notice and hearing to the petitioners and they have not only consented to this order but most of them have also paid rent according to the new rate and in such circumstances the petitioners are estopped from challenging such order of the respondent No. l by way of filing of this petition. The learned counsel further argued that in any case a legal and proper order has been passed by the respondent No. l (Administrator Larkana Municipal Corporation) on 5‑11‑1998 and a copy of the same has been filed in Court and also supplied to the petitioners counsel, but the petitioners have not cared to challenge such order in this petition and, thus, the petition, as instituted, is not maintainable. The learned counsel has also argued that the order, dated 5‑11‑1998 is open to appeal under section 108 of the Sindh Local Government Ordinance, 1979 and, therefore, even if the arguments of the learned counsel for the petitioners that at the time of filing of this petition, they were not supplied with the copy of such order is accepted as correct, then even now when the copy has been supplied to them such remedy can be availed by filing of appeal under section 108 of the Sindh Local Government Ordinance, 1979 and in such circumstances this petition is liable to be dismissed. Lastly the learned counsel has argued that the controversy raised in this petition involves disputed question of facts, which cannot be resolved in writ jurisdiction. In support of these arguments the learned counsel has placed his reliance on the case‑law reported as Messrs Sharafali Ghulam Hussain Gani v. Government of Pakistan and 3 others 1989 MLD 1440, Abdul Rehman v. The Province of Sindh and 3 others 1986 CLC 2635 and Ataur Rehman Khan v. Dost Muhammad and others 1986 SCMR

598. Mr. Ali Azhar Tunio, the learned A.A.‑G. while supporting the arguments of the learned counsel for the respondent No. l has mainly stressed the point that under section 108 of the Sindh Local Government Ordinance, 1979 a proper alternate remedy is available to the petitioners and, therefore, this petition is not maintainable. We have carefully considered the arguments of the learned counsel and perused the case record. The contention of the learned counsel for the petitioners that the respondent No.2 has orally informed them about the enhancement of rent and has further threatened the petitioners for sealing of their shops etc. is clearly belied from the case record which reveals that the respondent No.l has passed an order on 5‑11‑1998, whereby rent of various shops owned by respondent No.1 has been revised. Not only this but production of several rent receipts by the petitioners, and also their admission about the payment of rent, at the enhanced rate, by many of them, prima facie, goes to show that such order of the respondent No.1 was not only well within their knowledge but was a consent order, which was, therefore, also acted upon by an absolute majority of the‑ tenants, as out of more than 850 tenants, only the petitioners, have come forwarded to question the same. In any case the assertions of the petitioners that action taken by the respondents against them was without any notice or hearing to them and they have not consented to such enhancement or that they have not ,4 paid enhanced rent willingly, have been clearly denied by the respondents and such factual controversy cannot be resolved in writ jurisdiction. If any case‑law is needed on this point reference may be made to the case of Syed Saghir Ali v. Mehar Din and others 1968 SCMR 729, also see the cases of Mst. Nafis Fatima v. Syed Muhammad Mashooq and another 1987 MLD 2755 and Naraindas and another v. Hinanand and 2 others 1987 MLD

464. Reverting to the other contention, about the availability of alternate remedy to the petitioners, it may be observed that no doubt availability of alternate remedy does not operate as absolute bar for exercise of writ jurisdiction by this Court, and such jurisdiction can be exercised by this Court in appropriate cases. However, when a~party intends to bypass such alternate remedy available to him under some statute, it is for him to first satisfy this Court that such available alternate remedy will not be equally adequate and efficacious remedy 8 for him. In the instant case admittedly alternate remedy under section 108 of the Sindh Local Government Ordinance, 1979 is available to the petitioners but from the petitioner side there is no plausible explanation for non‑availing of such alternate remedy which, in our view, is equally adequate and efficacious remedy for the petitioners in the facts and circumstances of the instant case. In view of the above discussion we are of the view that present petition, due to the availability, of alternate remedy to the petitioners and also. for the reason that it involves disputed question of fact is not maintainable. In addition to this we are also cautious of the fact that earlier to order, dated 5‑11‑1998, the petitioners were occupying shops of the respondent No. 1, which is statutory body, on payment ‑ of very meager amount of rent and, therefore, the respondent No. 1, Who had jurisdiction in the matter, was fully justified in making a reasonable enhancement in the rate of rent. In such circumstances, even if for the arguments sake, while passing an order, dated 5‑11‑1998 some error or illegality has been committed by the respondent No. 1, interference in writ jurisdiction will not' be justified, as in one sense it will perpetuate injustice. In the given facts and circumstances of this case any such interference in writ jurisdiction, on one hand will result in giving undue advantage and benefit to the petitioners, and on the other hand it will cause serious hardship to the respondent No. 1, who being statutory body, needs reasonable resources to meet their budgetary expenditures and also funds to carry out development work. We are fortified in our view with the observations of the Honourable Supreme Court of Pakistan in the following judgments:‑‑ (i)Export Promotion Bureau v. Qaiser Shafiullah 1994 SCMR 859. "Mr. Khalid Anwar was at pains to urge that if this Court is going to hold that under clause 13(3) of the Scheme, the Vice‑Chairman of the Bureau could not have cancelled the above quotas for export, it would provide leverage to the dishonest exporters as they would get away scot free, which would encourage them to indulge in the above malpractices which bring bad name to the standing and reputation of our country. In his list of books, he has referred to the case of Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCMR 1071, in which this Court, while declining leave to appeal against the judgment of the High Court of Sindh passed in a Constitution petition, observed that the High Court was within its power to refuse relief in Constitutional jurisdiction even though the authority concerned had acted clearly without jurisdiction as the impugned order was passed ' in order to foster the cause of justice'. In the above reported case, reliance was placed on the famous case of Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC

236. The above proposition of law seems to be well‑settled. In this regard, reference may also be made to a more recent case referred to by Mr. Sharaf Faridi in his list of books besides the above case relied upon by Mr. Khalid Anwar (Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504. " (ii) Province of the Punjab through Secretary, Health Department v. Dr. S Muhammad Zafar Bukhari PLD 1997 SC 351 "A study of various cases decided by this Court would show that before a person can be permitted to invoke the discretionary powers of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality then the extraordinary jurisdiction ought not be allowed to be invoked PLD 1973 SC 236(258), likewise in the case of Begum Shamsun Nisa v. Said Akbar Abbasi and another, PLD 1982 SC 413, it was held that the High Court in exercise of its discretion, if it had not interfered with the order of the Chief Settlement Commissioner in that case even if it felt that the order of the Chief Settlement Commissioner whereby he rendered the order of the Settlement Commissioner as null and void, was not strictly legal". Again this Court refused to intervene where the grant of relief would amount to retention of ill‑gotten gains or would lead to injustice or aiding the injustice. See Gul Muhammad v. Additional Settlement Commissioner, 1985 SCMR 491, Nazim Ali etc. v. Mustafa Ali etc., 1981 SCMR 231, Wali Muhammad and others v. Sheikh Muhammad and others, PLD 1974 SC 106, Meraj Din v. Director, Health Services, 1969 SCMR 4, Tufail Muhammad v. Muhammad Ziaullah Khan, PLD 1965 SC 269, Azmat Ali v. Chief Settlement and Rehabilitation Commissioner, PLD 1964 SC

260. The object of the superior Courts while exercising its discretionary jurisdiction is to foster justice, preserve rights and to right a wrong and keeping this object in view, it may in equity set aside or annul a void judgment or enjoin enforcement by refusing to intervene in the circumstances of the case before it." Foregoing are the reasons for our short order, dated 21‑12‑1998, whereby this petition was dismissed in limine alongwith listed application. H.B.T./A‑289/K Petition dismissed.