1989 PLP 1938 (CLC)

QAISER AHMAD HAMIDI, J.‑‑The facts which constitute the background of this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, are that the petitioner which is a proprietary concern imported automotive spare parts, and sought release thereof at the declared value of Rs.5,86,

804. The bill of entry was processed under "assessment first system". The petitioner paid duty/taxes, but before the release of consignments and information was received in Customs House that it was a case of under‑invoicing. The declared value was checked with other invoices available on record and it transpired that there was under‑invoicing to the extent of 319%. On 19‑4‑1989, the petitioner was served with a show‑cause notice by respondent No.l. The petitioner replied to the said notice, thereby controverting the allegations based on facts. The explanation furnished by the petitioner was, however, not found satisfactory, and the respondent No.l ordered confiscation of the consignments, but made it redeemable on payment of fine equivalent to 50% of the alleged ascertained value of the goods plus a personal penalty of 10% of the said value along with the assessed customs duty and other charges based on enhanced ascertained value. The above order dated 29‑5‑1989, is the subject‑matter of this petition.

2. Admittedly the petitioner has not exhausted the remedies available to him under the Customs Act, 1969, before invoking the constitutional jurisdiction of this Court. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, does not confer an appellate jurisdiction on the High Court. It is an extraordinary remedy and the underlying purpose being to keep the administrative and judicial authorities within the bounds of their jurisdiction. When the law provides a remedy by appeal or revision to another tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory tribunals. It has been held by the Supreme Court in Tariq Transport Company v. The Sargodha Bhera Bus Service, Sargodha reported in PLD 1958 SC 437:‑ "Having given careful consideration to this aspect of the matter, I am of the view that the present case was governed by the general rule that where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. Since, the present case, the statute under which the Respondent had a grievance provides an appeal in which that grievance can be set right, no writ of certiorari or mandamus or any other discretionary order of that nature should have been issued by the High Court:'

3. This view was followed in Haji Mojakkir Ali v. Regional Transport Authority reported in PLD 1967 Dacca 6, wherein it was observed that as a general rule where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. The law is positive that the parties normally are bound by the remedies created by the statute, the breach of which has been complained of by the petitioner. Only in exceptional cases, when the appellate authority either refuses to hear the case or takes no action thereon, that the parties can come direct to High Court and move for issue or writ. Where, therefore, a petitioner without exhausting his remedy provided by the statute under which he complained had filed a writ petition, it was held that the application in the circumstances would not lie.

4. The following observations made in Raja Habib Ahmad Khan v. The Income Tax Officer, Hazara Circle, Abbottabad, reported in 1972 SCMR 631 are again relevant:‑ "It is now well‑settled that where a special law or a special right is created by statute which also prescribes a special remedy for the enforcement of that right or liability, then it is that remedy which must be adopted and not any other remedy. The special jurisdiction under Article 98 of the Constitution of 1962 could not be treated as a substitute for an appeal or revision. It was only an extraordinary remedy available in extraordinary circumstances where the order sought to be challenged' was wholly without jurisdiction. This was not the case here:'

5. It may, however, be added that the rule that when there is an adequate I alternative remedy the High Court will not interfere under Article 199 is only a ; rule of discretion and not a rule of law. The High Court will issue a writ, although an adequate alternative remedy exists, where there is patent want of jurisdiction, 'B or where statutory functionary, and more so, a fiscal authority, acts in a partial, unjust or oppressive manner. If any authority is needed reliance may be placed upon the cases of Eruch Manekji and others v. Income Tax Officer, Central Circle III, Karachi 1979 PTD 461 (H.C. Karachi) and Hussain Sugar Mills Ltd. Karachi v. The Islamic Republic of Pakistan and another, reported in 1981 PTD 169.

6. After carefully considering the matter and after hearing learned counsel appearing for the petitioner, we are of the view that it is a case where their petitioner should have exhausted all the remedies before invoking the constitutional jurisdiction of this Court. The petition has got no force and is accordingly dismissed in limine.

7. At the conclusion of hearing on 18‑6‑1989, we had 'by a short order dismissed the petition. These are reasons for the said short order. M.B.A./S‑432/K Petition dismissed.