2007 PLP 583 (CLC)

SH. HAKIM ALI, J.

Through this writ petition, Pervaiz Iqbal, the writ petitioner has complained against action/order, dated 6-10-2006 passed by Nazim of Tchsil Municipal Administration, Sadiqabad/respondent No.1, by which he had allowed respondents Nos.6 to 10, to ply their buses from Sadiqabad to Lahore, from Bay No.11 on "first come first go" basis at General Bus Stand, Sadiqabad. It is the complaint of the petitioner that aforementioned, respondents were allowed Bay No.11, which was in close propinquity to the main gate of the General Bus Stand and was an attractive place for bus plyers while the writ petitioner was permitted to ply buses for the same route from Bay No.4 on the same basis. As per learned counsel, this grant of permission to aforementioned respondents and its decline to the petitioner was in fact a discriminatory act on the part of respondent No.1. So, the impugned order, dated 6-10-2006 may be set aside.

2. On the other hand, Ch. Muhammad Afzal Cheema, learned Advocate appearing for respondents Nos.6, 7, 9 and 10 at motion stage has prayed for grant of permission to defend the writ petition, who has been allowed to address this Court. As per learned counsel for respondents, the impugned order cannot be assailed. in the writ jurisdiction because the petitioner has got remedy of appeal under section 190 of the Punjab Local Government Ordinance, 2001 read with the Punjab Local Government (Appeal) Rules, 2002. Therefore, before approaching this Court, statutory remedies were to be exhausted by the petitioner. To support his contention, he has referred to Raja Muhammad Rainzan and 21 others v. Union Council, Bajnial and another 1994 SCMR 1484, Javed Iqbal Butt v. Tehsil Nazim/Tchsil Council, Daska and 2 others 2003 CLC 1030 and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC

246. Learned counsel further submits that it is matter of factual inquiry and dispute in which manifold questions have to be resolved and determined by the executive authorities with regard to the feasibility of running of buses from a bay. Therefore, the remedy of appeal must necessarily be sought by the writ petitioner before coming to this Court.

3. In reply, learned counsel for the writ petitioner submits that this Court has got power and jurisdiction, even if alternate remedy has been provided by an Act, when the dispute between the parties was fiscal in nature. The Fecto Cement Limited v. The Collector of Customs Appraisement and another 1994 MLD 1136. Orders passed without jurisdiction can be challenged before this Court directly without recourse to alternate remedy. For this proposition learned counsel has referred to Pakistan Railways and another v. Muhammad Ilyas and 61 others 1994 CLC

795. As per learned counsel, when question of jurisdiction of a statutory functionary is involved and the acts are partial, unjust and oppressive in nature, alternate remedy can be waived and direct petition can be filed in this Court. Messrs Shahid Agency v. The Collector of Customs (Appraisement) and another 1989 CLC 1938 has been cited for this proposition. Messrs Kamran Industries v. The Collector of Customs (Exports) 1st Floor Custom House, Karachi and 4 others PLD 1996 Kar. 68 has been relied upon by the learned counsel to contend that wrongful exercise of jurisdiction, illegal exercise of discretion and abuse of power, procedure and process of Court are the instances where this Court can interfere directly in writ jurisdiction. Learned counsel has also cited Government of Punjab through Minister for Revenue Board of Revenue, Lahore and others v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108 that alternate and efficacious remedy has got no effect upon the ,jurisdiction of the High Court to entertain writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 where discretion vested in the Court was not exercised properly after attending the circumstances of the case.

4. The arguments of learned counsel, the perusal of Inc record and the judgments cited by them, after considering their impact upon the facts and circumstances of the instant case, it is concluded that it is the Court who has to form its opinion as to whether in the given circumstances, writ jurisdiction must be exercised or not? It is not the sweet-will and discretion of the party to bypass the statutory remedies provided by law. If this practice is allowed and discretion is conferred upon a party as not to avail of statutory remedy and to file directly the constitutional petition in this Court, the provision of alternate remedy prescribed by a statute would become a mere paper remedy finding its place only into statute books having no use in general practice. It would also create chaos and distrust upon the authorities/Tribunals/Courts provided by law for availing of statutory remedies. The provision in statute would become a useless and unfruitful remedy while enhancing and increasing the work load of this Court. Before coming to this Court, by bypassing the statutory remedy, a party has to satisfy the Court from the given circumstances that the statutory remedy was not adequate, efficacious, speedy, proper and effective one. Those reasons are to be laid before the Court, due to which availing of that remedy was not necessary, and approach to this Court was essential on the basis of such and such exceptional circumstances. Each and every case cannot be allowed to be entertained as a matter of routine. This is the crux of all the judgments referred to by both the learned counsel. Question involved in this case is not that the Court has got jurisdiction or not to interfere with an order, assailed before it. Disputatious question to be resolved is as to whether jurisdiction must be exercised in the given case or not because of exceptional or general nature of the case. In the present case, all questions of discrimination can be raised and it can be taken note of by the appellate authority also. 1 have found no exceptional circumstances in the present case for which this Court must come to the rescue of the petitioner and in the given circumstances must exercise its jurisdiction to declare illegal and unlawful the impugned order of respondents. Whether plying of all buses must be allowed from Bay No.1 1,or Bay No.4 is a question falling in the domain of factual inquiry. So, it should be got decided by writ petitioner from the appellate authority. According to section 190 of the Punjab Local Government Ordinance, 2001 read with the Punjab Local Government (Appeal) Rules, 2002, the writ petitioner has got alternate, adequate, efficacious remedy before the appellate authority of respondent No.1, therefore, I do not consider it a case of exceptional nature to be entertained. Accordingly, the writ petitioner is directed to avail of that remedy of appeal before the appellate authority concerned, if so desires or is advised. The writ petition is thus, disposed of in limine with the above direction and observation. H.B.T./P-4/L??????????????????????????????????????????????????????????????????????????? Order accordingly.