2002 PLP 3484 (YLR)

3. On the query of the Court whether the impugned orders whereby Ihatas were allotted by respondent No.1 in favour of respondents Nos.3 to 40 is appealabale learned counsel concedes that the appeal is maintainable against these orders of allotments but according to him impugned orders are without jurisdiction and can be challenged in writ jurisdiction. In support of his contention he referred Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd, Tokht Bhai and 10 others (PLD 1975 SC 244), Collector of Customs. Customs House, Lahore and 3 others v. Messrs S.M. Ahmad & Company (Pvt) Limited. Islamabad (1999 SCMR 138), Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCMR 1072), Ghazi Fabrics International Limited, Gulberg‑III Lahore through Chief Executive v. Water and Power Development Authority, Lahore and 3 others (PLD 2000 Lah. 349), Muhammad Mubarik Khan v. The Settlement and Rehabilitation Commissioner, Multan and Bahawalpur Division, Multan and 3 others (1980 CLC 1980), M/s. Chohan Flying Coach Service, Sahiwal v. Regional Transport Authority and another (1993 CLC 1853) Lahore and Aurangzeb v. Massan and 13 others (1993 CLC 1020 Lahore).

4. Heard. Record perused. In the case of Salahuddin (PLD 1975 Supreme Court 244) it was observed at page 256 that if the person whose acts, actions or proceedings are challenged before the High Court, does not fall within any of the specified categories, then he would clearly not be amenable to this extraordinary jurisdiction. In that case the question involved was whether the person performing the affairs of the Federation or a Province or a local authority or Public Limited Company and holder of office therein like those of the Directors, Chief Executive etc. were amenable to writ jurisdiction of the High Court. Supreme Court observed that the private organization or person as distinguished from Government or semi Government agency and functionaries cannot be regarded as persons performing functions in connection with the affairs of Federation of Province simply because their activities happen to be regulated by law made by the State. Person including body corporate can be regarded as a person performing function in connection with the affairs of the Federation etc., if function entrusted to them are indeed functions of State or if control of Organization vests substantially in hand of Government. Public limited companies not created by any statute and governmental control limit only by certain regulations. Such company not a person performing functions in connection with the affairs of the Federation, such company is not amenable to issuance of writ nevertheless office held by Director and Chief Executive etc, of such public company must be regarded as public office which are of greatest interest to the public and a such its directors etc. are within purview of writ in nature of quo warranto. High Court, however, can grant only declaration as to authority of person to hold office in question but it could not grant a mandamus to restore or re‑instate applicant to office. The aforesaid judgment is not applicable to the facts of the present case. Admittedly respondent No.1 is a public functionary and has passed order under the Colonization of Government. Lands Act ,, 1912. The question involved in the aforesaid case was of different nature. In the case of Collector of Customs (1999 SCMR 138) it was observed that the Alternate remedy was only illusory in nature, existence of such remedy was no bar to maintainability of Constitutional petition as to useful purpose would be served if respondent is directed to avail remedy of appeal or revision when the highest body i.e. Central Board of Revenue had already expressed its opinion against the respondent. In the instant case the highest Court under Colonization of Government Lands Act and the Land Revenue Act is the Board of Revenue which is competent to adjudge the issue raised in this petition, therefore, this judgment is of no help to the petitioners. In the case of Gatron (Industries) Limited (1999 SCMR 1072) Supreme Court observed that a petition under Article 199 of the Constitution is competent in the High Court if an order is passed by a Court or authority by exceeding its jurisdiction even if the remedy of appeal/revision against, such an order is available depending upon the facts and circumstances of each case. In that case the matter was decided on merit by the High Court after hearing lengthy submissions of the parties and the opposing party had never pressed any objection as to the maintainability of the Constitutional petition before the High Court. The discretion exercised by the High Court in fact in circumstances of the case did not suffer from any illegality. Referred judgment is distinguishable as the impugned orders in the instant petition are appealable which need perusal of the record and adjudication of controversial facts raised in this petition, therefore, this judgment is not attracted to the facts of the case in hand. In Ghazi Fabrics (PLD 2000 Lahore 349) the action of authority was challenged as being without jurisdiction and void. It was observed that the writ petition is maintainable when the fate of case depends upon the interpretation of statutory provisions. No interpretation of statutory provision is alleged or convassed in the instant petition, so this citation is equally of no help to them. In the case of Muhammad Mubarik Khan (1980 CLC 1980) learned Single Judge of this Court observed that the party cannot be deprived of right to move High Court in writ jurisdiction even when the civil suit is pending. That case related to a settlement matter where the property was transferred and the order was found to be wholly without jurisdiction. Respondent No.1 is competent to allot the Ihatas to deserving applicants so said allotment cannot be said to be coram non judice. In case of Aurangzeb (1993 CLC 1020) it was observed that the jurisdiction was intended to foster the cause of justice and not to subvert it. The scope of Article 199 of the Constitution in the context of alternate remedy was not considered at all in this case. The last judgment Messrs Chohan Flying Coach Service (1993 CLC. 1853) relied upon by the learned counsel for the petitioners deals with an order passed by Regional Transport Authority wherein it was observed that whenever any authority is given power to pass some order it would exercise its authority independently by taking into consideration all relevant circumstances. Where authority had made decision and issued order thereunder, the extraneous influence, such order will be deemed to have been passed without jurisdiction. In this case too the scope of Article 199 of the Constitution with reference to availability of other adequate remedy was not dilated upon at all.

5. The perusal of the judgments cited by the learned counsel for the petitioners shows that if an order on the face of it is without jurisdiction can be called in question under Constitutional jurisdiction but where the authority which passed the order was conferred power by the statute which provides right of appeal and revision the procedure prescribed by law is to be followed otherwise it may lead to opening a flood gate of cases in High Court against all types the orders passed by the Government functionaries, tribunals or authorities, by passing the remedies of appeal, revision and review provided by the relevant statute. The Supreme Court in the case of Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 Supreme Court 246) observed in paras. 8 and 9 as under:‑-- "

8. In the case to hand, question raised by the petitioner before the Lahore High Court was of a simple nature. Plaint in his suit was rejected, for non‑payment of requisite court‑fee. Order by which the plaint was rejected. was passed on 11th July, 1994. By then it had been ruled by this Court in the case of Siddique Khan and 2 others that before rejecting plaint for non‑payment of requisite court‑fee, an opportunity is to be afforded to the plaintiff to make good the deficiency in court fee. If this dictum had not been followed by the learned Civil Judge, the petitioner could easily assail his order by means of an appeal. We wonder why he had rushed to the High Court with a writ petition instead of taking appeal before the appropriate forum. The course adopted by him was not proper and we are not inclined to condone his lapse in this behalf by finding fault with the order of the High Court for which there is no justification.

9. The High Courts are already huddled up with thousands of cases. If the litigant public is permitted to take all sorts of disputes to the High Courts without first availing of the other remedies available to them, under law. it will not only necessarily increase the work load of the High Courts but would also defeat the provisions of law by which the said remedies have been made available. Such a spree on the part of the litigate public would , if we may say so, amount to abuse of the Constitutional jurisdiction which is to be exercised by the High Courts in exceptional cases to provide justice which cannot be otherwise obtained by the aggrieved parties." In view of the aforesaid dictum of the Honourable Supreme Court I am clearly of the view that the, petitioners have alternate remedy of appeal against the impugned orders, therefore, this petition in not I maintainable.

6. Impugned orders passed under the Colonization of Government Lands Act. 1912 are appealable under section 7 of the Act read with section 161 of the Land Revenue Act of 1967 before the Commissioner and a revision is competent against appellate order. Under section 163 of the Land Revenue Act a review is also maintainable in suitable cases. The allegation of the petitioners that their applications for allotment of Ihatas were prior in time, respondent No.1 has shown undue favour to some of the allottees, has, observed the required legal formalities and made the allotments in violation of the instructions of the Board of Revenue relate to factual inquiries which cannot be gone into in these proceedings. In the given circumstances of the case the adequate remedy for petitioners is to agitate the matter in appeal before the Appellate Authority. The controversial issues of factual nature raised in this petition cannot be resolved under the Constitutional jurisdiction.

7. The petition for the reasons discussed above is dismissed as not maintainable. S.A.K./N‑188/L Petition dismissed.