2005 PLP 3102 (YLR)

IJAZ-UL-HASSAN KHAN, J.

The petitioners by way of filing instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against Director-General CD&MD, Peshawar, PDA House, Hayatabad, Peshawar and others respondents, seek declaration to the effect that petitioners having paid the price for Plots Nos. 491 and 496 in Sector F/7 Hayatabad, measuring 10 Marlas each, are full owners of the said plots and the orders of cancellation of these plots, dated 14-12-1996 by the respondents, be declared as illegal, without lawful authority and ineffective against the rights of the petitioners.

2. Learned counsel for the petitioners mainly contended that the petitioners having paid all the requisite instalments well in time and having committed no default, have become full owners of the plots and the respondents had no authority to cancel the allotment of the plots in question. The learned counsel also submitted that petitioners were condemned unheard as neither any show-cause notice was issued to them nor any opportunity of hearing was afforded to them and thus the impugned orders have been passed at the back of the petitioners, which are liable to be struck down being in violation of the principle of natural justice. The learned counsel prayed that the subject plots may not be put to auction or alienate it in any manner till the decision of the writ petition. The submissions of the learned counsel do not carry weight.

3. The jurisdiction conferred on this Court by Article 199 of the Constitution is an extraordinary jurisdiction, which can be invoked only to meet extraordinary situations. This jurisdiction is never meant to be treated as an additional or as another" remedy provided by law. It was essentially for this reason that Article 199 of the Constitution specifically provide it that this Court shall have jurisdiction under the said provision of the Constitution only when the law from which a matter emanated did not provide any other adequate remedy to cater for the problem in issue. Therefore, the prime question in every case of Article 199 of, the Constitution as also in the present case is whether an aggrieved person who resorts to the Constitutional jurisdiction of this Court, has or has not any other adequate remedy available to him under the law. Where it was open to an aggrieved person to move another forum or Tribunal for his remedy in the manner prescribed in a statute, High Court would not be entertaining petition under Article 199 of the Constitution, permit the machinery provided in a statute to be bypassed. Primarily, it was discretion of the Court to grant or refuse the relief if it was satisfied that an aggrieved party could have an alternate remedy elsewhere. Relief under Article 199 of the Constitution was not to be provided where alternate remedy existed unless there was any exceptional reasons warranting exercise of extraordinary power under Article

199. Exceptional circumstances being that order was wholly without authority, without jurisdiction or the functionary acted mala fide or in unjust manner. Existence of alternative remedy by way of appeal or revision was no bar if the case tell in the exceptional circumstances. Rule of alternative remedy is rule of discretion. Needless to emphasize that exercise of Constitutional jurisdiction is discretionary and the same is to be used in good faith having looked at all the attending circumstances and relevant factors of the case. Such discretion is to be used in just, fair and reasonable ways. In the instant case, we find that alternative remedy by way of filing civil suit in a competent Court of law was available to the petitioner but he has opted not to approach the civil Court and instead invoked the Constitutional jurisdiction of this Court. In view of the availability of the alternate remedy, the petitioner cannot be allowed to ventilate his grievance through Constitutional petition bypassing the competent Court of law. Further, assertions of the petitioner revolve around factual dispute, truthfulness or otherwise of which cannot be determined without inquiry and record of evidence and this Court is not permissible in Constitutional jurisdiction of this Court, in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Younas and 12 others v. Government of N.-W.F.P, through Secretary Forest and Agriculture Peshawar, (1993 SCMR 618). The writ petition having been found destitute of substance, stands dismissed in limine. H.B.T./499/P Petition dismissed.