THE DOCTRINE OF “ALTERNATIVE
REMEDY” WITH REFERENCE TO WRIT JURISDICTION UNDER THE CONSTITUTION OF
By:
AMJAD HUSSAIN
Assistant Professor,
Department of Law,
The Islamia
Abstract
The present paper would explore
the legal principles with reference to the doctrine of alternate remedy in
relation with writ jurisdiction of High Courts under the constitution of the
Islamic Republic of Pakistan,
Introduction:
The basic and main purpose of
framing the law is to maintain justice. If a principle of law does not serve
this purpose, it would cause the system failure. It is necessary to maintain
balance while applying a principle of law to a certain state of facts, which
would lead to upheld the justice. One of the reasons for introducing the
doctrine of alternate remedy is to avoid/reduce the number of petitions to be
filed directly in the High Courts. Secondly, if a person comes in the High
Court without exhausting a remedy available at a lower forum, the purpose of
establishing that forum would also be defeated which is against the principle
of justice. Thus, it is a matter which requires extra care so that the rights
of the individuals must be protected at any cost.
Meaning:
Alternate remedy as it has been
held in Rizwan Ullah v. Registrar/President, Cooperative Societies,
N.W.F.P. Peshawar and three others, means a remedy, which is adequate,
efficacious, expeditious, inexpensive, speedy, prompt, appropriate, exclusive,
convenient, beneficial and effective. However,
the test of aforesaid connotation of alternate remedy depends upon the relevant
facts and law in each case.[1]
Before going onward, the
distinction between alternative remedy and adequate remedy must be kept in
mind. Both must not be considered the same. When a constitutional petition is
filed in the High Court or Supreme Court, the first question which may arise is
that whether an alternative remedy is available with reference to the said case
or not. If the answer is “No”, the court may proceed and decide the petition.
But if the answer is “Yes”, then the second question would arise and that is
whether the available alternative remedy is adequate or not. The answer to this
question is answered by the Court itself. If the answer to this question is
“No”, the Court may proceed further otherwise the Court may refuse the relief.
The first case whereby the
concept of alternate remedy has been discussed by the superior courts of
It provides that if the relief
available through the alternative remedy, in its nature or extent is not what
is necessary to give the requisite relief, the alternative remedy is not an
adequate remedy.[3]
It further
provides that if the relief available is equal to what is necessary to give the
requisite relief, the adequacy of the alternative remedy must further be judged
with reference to a comparison of the speed, expense or convenience of
obtaining that relief through the alternative remedy.[4]
Alternate Remedy when bars Writ Jurisdiction:
The Constitution of Pakistan 1973
provides that the writ jurisdiction can be invoked if alternate remedy is not
available to the aggrieved party under the relevant law.[5] It can be exercised only
on proof of non-availability of alternate remedy. It is, therefore, clear that
if an alternate and adequate remedy is available under the relevant law, the
jurisdiction as provided under section 199 cannot be invoked.[6] However, in the absence of
availability of alternate and adequate remedy the constitutional jurisdiction
of Superior Courts may be called upon through the writ petition.[7]
Sometime, an alternate remedy is
available but the petition is accepted. At another time, alternate remedy is
not available but the petition is not accepted. It is only because of the
circumstances of each case. Generally, when an alternate and adequate remedy is
available to a person, the High Court does not interfere with the matter. In
The Tariq Transport Company
“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.”
In the same case, it was further
observed:
“It is
wrong on principle to entertain petitions for writs, except in very exceptional
circumstances, when the law provides a remedy by appeal to another Tribunal
fully competent to award the requisite relief. Any indulgence to the contrary
is calculated to create distrust in statutory tribunals of competent
jurisdiction and to cast an undeserved reflection on their honesty and
competency and thus to defeat the legislative intent.”
The extra-ordinary constitutional
writ jurisdiction is entirely discretionary which cannot be exercised in an
ordinary course and it must be exercised with great care. It cannot be
exercised for “deciding the disputed facts and thwart the procedural law”.[9]
If the remedy sought for, is in
substance a remedy, which is available under the ordinary law, then a suit
should be the appropriate remedy instead of filing a writ petition, because the
remedy provided by the constitution is not intended to be a substitute for the
ordinary forms of legal action. However, where this is not the case, the remedy
by way of a suit can hardly be considered as an alternate adequate remedy. In
such a case, the writ petition may be competent.
The purpose of writ jurisdiction
is not to create a competing remedy. It is an additional remedy in the absence
of an alternate adequate remedy subject to the satisfaction of the higher
court.[10] If the alternate adequate
remedy has not been exhausted or if a case requires detailed inquiry, the writ
petition may not be allowed.[11] Nevertheless, to exclude
the constitutional writ jurisdiction the alternate remedy should be meaningful,
effective and adequate otherwise, it would delay the proceedings and it would
be a useless exercise, which is equal to denial of justice (justice delayed,
justice denied).[12]
If a statute creates a right and
provides a remedy in shape of a machinery for enforcement of that right, the
party (complaining of breach of the statute) should avail that remedy before
invoking writ jurisdiction.[13] For example, in case of a
dispute relating to private contract the proper course would be arbitration or
institution of suit and not the writ petition.[14] The
existence of another remedy does not affect the jurisdiction of the court to
issue a writ. It is a thing to be taken into consideration while granting
writs and if such remedy is not exhausted, it will be a sound exercise of
discretion to refuse to interfere through a constitutional petition unless
there are good grounds.[15]
As a rule, a higher court using
its discretion may refuse an order of mandamus if an
alternative specific remedy at law, which is not less convenient, beneficial,
effective or adequate, and such remedy includes an appeal to an appellate
tribunal.[16]
In A.V. Venkateswaran,
Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani & another,
it has held that even where a party has approached the alternative forum, a
straight jacket formula cannot be formulated to decide that whether the Court
should entertain a writ petition or not. The Court may examine the facts and
circumstances of the case and decide as to whether it was to entertain the
petition or not. However, where the petitioner has already approached the
alternative forum for appropriate relief, it is not appropriate that the writ
petition should be entertained. The rule is based on public policy and the
motivating factor is that of existence of the parallel jurisdiction in another
Court.[17]
Alternate Remedy when does not bar Writ Jurisdiction:
The rule that a higher court may
not entertain a writ petition if any other appropriate remedy is yet available,
is not a rule of law barring jurisdiction but a rule by which the court regulates
its jurisdiction.[18] Hence, the adequacy of the remedy is not considered as a
rule of law and it is dependent on certain factors like discretion of the
court, the circumstances, etc.
In the following cases an
alternate remedy does not bar the writ jurisdiction:
(i) Violation
of fundamental rights
The writ jurisdiction cannot be refused on the ground that
alternative remedy is available if there is violation of fundamental rights.[19] But if a person invokes
jurisdiction of the High Court for any other purpose, the court may refuse the
relief in its discretion.[20]
(ii) Order malafide
or unjust, etc.
Even if the remedy is available, the court will decide the
adequacy of the alternate remedy. It has been held that the writ jurisdiction
will be available in the following cases even if alternate remedy is available:
(i)
Orders
passed arbitrarily[21]
(ii)
Orders
passed without lawful authority[22];
(iii)
Orders
based on Malafide[23]; and
(iv)
Perverse,
unjust and oppressive orders[24].
It is obvious that no inflexible rules can be laid down for
the exercise of discretion in this regard. The broad policy behind the doctrine
is that the writ jurisdiction is not meant to short-circuit or circumvent
statutory procedures. It is only where statutory remedies are entirely
ill-suited to meet the demands of extraordinary situations. However, even then
the Court must have good and sufficient reasons to bypass the alternative
remedy provided by the statute.[25]
(iii) Alternative
remedy inadequate or illusory, etc.
If the alternative remedy is
either inadequate,[26] less convenient[27],
illusory,[28]
meaningless,[29]
time consuming,[30] or involves delay,[31] or was lost for no fault
of the person,[32]
the High Court may grant relief. In Digital World Pakistan (Pvt.) Ltd. through
Chief Executive v. Samsung Gulf Electronics FZE through Managing Director/Chief
Executive Officer and another, damages were also held as inadequate remedy.[33] In Mian Ayaz
Anwar v. Federation
of Pakistan through Secretary Interior and 3 others, the remedy of review was also considered as inadequate.[34]
(iv) Lack
or abuse of jurisdiction
In a case where the order has been passed without
jurisdiction or is unlawful, it cannot bar the filing of writ petition under
Article 199 of the
Constitution.[35]
Generally, the High Court,
in cases of lack or abuse of jurisdiction, would not hesitate in entertaining
constitutional petition although an alternate remedy is available.[36] The same principle would
apply in a case of excess of jurisdiction.[37]
An aggrieved party can
invoke the constitutional writ jurisdiction where the impugned action is
completely without jurisdiction, mala fide, unlawful
and passed in disregard of the law and principles of natural justice. It is not
necessary to avail alternate remedy in such matters.[38]
(v) Question of
law involved
Where decision of the petition
depends upon the resolution of a question of law or interpretation of a law, a
writ petition would be maintainable even if the alternate remedy has not been
availed.[39]
(vi) Illegitimate
order
In Vincent and others v. Karachi Development Authority and others[40], it was held that
the mere fact that the right of appeal has been provided under the relevant
law, cannot divest jurisdiction of the High Court to entertain a constitutional
petition if the circumstances requires so. In
this case, the premises in occupation of petitioners was declared to be
dangerous on the report of inspection committee
without
notice to petitioners. The alternate remedy was to file an appeal which could
prolong the matter. Thus, it was not proper to dismiss the case.
“Where alternate remedy
was not equally efficacious or speedily or where impugned order, as on face of
it, is patently, illegal and without lawful authority or suffers from such
legal infirmities which are apparent on the face of the record, the court may,
in spite the existence of alternate remedy, exercise its jurisdiction under Art.199
of the Constitution.”[41]
In error cases, if the error is apparent on the record, the
writ petition may be admitted. For example, a family judge passing an order to
evict a tenant.
(vii) Violation
of principles of natural justice
When the constitutionality of an act is challenged or the
case involves violation of principles of natural justice, the writ petition may
be admitted.[42]
(viii) Violation
of Legal Principles
It was held in a number of cases that where---
(i)
an order, act or omission is erroneous, autocratic, capricious,[43] or
(ii)
there is
total lack of jurisdiction,[44] or
(iii)
a
mandatory provision is ignored, or
(iv)
available
material evidence is ignored, or
(v)
an
action is arbitrary, or
(vi)
an order
is tainted with illegality, etc.
(vii)
an order is wholly without
authority[45]
the writ petition may be allowed.
(xi) Mere availability of alternative
forum
In M/S. S.J.S. Business
Enterprises Ltd. v. State of Bihar (2004 Supp 2 SC 601), the Court has held
that mere availability of alternative forum for appropriate relief does not
impinge upon the jurisdiction of the High Court to deal with the matter.[46]
It is,
thus, clear from the above discussion that in appropriate cases, constitutional
jurisdiction can be exercised by High Court even where alternate remedy was
available.[47]
Well Recognized Adequate Alternate Remedies:
The following alternative remedies are considered as
adequate remedies:
(i)
Remedy of suit
If the remedy sought for, is in substance a remedy, which
is available under the ordinary law, then a suit should be the appropriate
remedy instead of the extraordinary remedy under Article 199.[48] Similarly, if the Petitioner had already
availed the remedy of civil suit which had already been finally concluded, he
is not entitled to invoke constitutional jurisdiction of High Court.[49]
(ii)
Remedy of Representation
A representation has been considered as an adequate remedy. In WAPDA v. Commissioner Hazara Division, where a person filed a writ petition
against the order of ombudsman without availing the remedy of representation
before the President of Pakistan, it was held that since the writ jurisdiction
was a discretionary remedy, the courts were not inclined to exercise it in the
cases where statutory remedy of representation before the president had not
been availed.[50]
(iii)
Amendment of the suit or pleadings
If the amendment of the pleadings is allowed by the law and
it is sufficient to meet the circumstance, it is adequate remedy. Thus, Circumvention of normal processes of law cannot be
permitted by accepting writ petition.[51]
(iv)
Remedy of appeal
Normally, appeal is considered as an adequate remedy. Thus, a writ Petition filed against an appealable
and revisable order would be rejected[52]
(v)
Appeal before special authority
Sometimes, a right of appeal is available before a special
authority. It may operate as an adequate remedy.[53]
(vi)
Remedy through ordinary criminal courts
The availability of remedy under
Cr. P. C. operates as a bar to exercise constitutional jurisdiction under Art.
199.[54] Similarly, The filing of a direct complaint under Section 220, Cr. P.
C. has been found to be an adequate remedy in the case of Ghanwa
Bhutto.[55] It provides:
“Remedy by way of a private complaint is equally an effective
and a practical remedy as against the registration of F.I.R. and is thus an
adequate remedy.”
With respect to criminal cases, a magistrate is empowered
to direct the police to investigate the case and is authorized to exercise all
powers of Criminal Procedure Code available to him for investigating the case
including the power to arrest.[56] Similarly, a magistrate
may also be asked to exercise powers under Section 156(3) to direct the Police
to register the FIR and investigate the case.[57] Further, a magistrate is
also empowered to take action against any police officer who fails to perform his duties and
there is no need to file a constitutional petition in this respect.[58]
Presently, after insertion
of sub-section (6) to Section 22-A, Cr. P. C. a Session Judge as an Ex Officio
Justice of Peace can issue appropriate directions to the concerned Police
Authorities, on the complaint of non-registration of FIR, by directing them to
register the FIR if cognizable offence is found to have been committed.[59]
Remedies not recognized as Adequate
The following alternate
remedies have been considered inadequate under the relevant circumstances:
(i)
Mere Revision
Mere fact that a revision
is competent, would not bar High Court from exercising constitutional
jurisdiction[60]
if an impugned order is without jurisdiction or in violation of some law.[61]
In Ghazi Fabrics
International Limited, Gulberg‑Iii,
The availability of a
revision may not be fatal to maintainability of petition since revision in law
sometimes is not reckoned to be an efficacious or alternate remedy. For
example, where the assessing officer is acting under the dictate and control of
his superiors, resort to departmental remedies may be an exercise in futility.[63]
(ii)
Mere Review
Mere review is also not
considered as an adequate remedy.[64]
Conclusion:
It is very clear from the
aforesaid discussion that apart from certain principles, the situation and the
facts of each case are basis for determining whether alternate remedy is
available or not and that it is adequate or not in the given circumstances.
Sometime one may feel that
the High Court is performing the functions like a lower civil court. The relief
which a lower court may grant is being granted by the High Court. The very
common example, in this respect, is issuing injunctions. This practice may be
avoided. In this regard certain instructions may be issued to the lower courts.
While considering
different factors, the economic position of the petitioner should also be
considered. If he is unable to afford the expense of proceedings at the
ordinary/preliminary level, it may be assumed as equal to inadequate remedy.
It must be admitted that
the Higher Courts of Pakistan have been using their discretion and deciding the
issue of alternate remedy judiciously in a way to upheld justice only although
there may be some examples where an error has been discovered. It is, because,
sometimes merely considering the facts may lead to injustice.
[1] PLD 2003
[2] Mehboob Ali Malik v. The
[3] Ibid.
[4] Ibid.
[5] Article
199, The Constitution of Islamic Republic of Pakistan, 1973; Ghulam Abbas v. Executive
District Officer (Health), Gujrat and another, 2010 P
L C (C.S.) 744
[6] Moula Bux alias Mouledino v. S.H.O. Police Station Hatri
Ghulam Shah and 2 others, 2003 YLR 1316
[7] Allah Nawaz & another v. The State, 2010 MLD 1412; Suo Motu Case No.13 of 2007, PLD 2009 SC 217
[8] PLD 1958
SC (
[9] Rizwan Ullah v.
Registrar/President, Cooperative Societies, N.W.F.P., PLD 2003
[10] Naeem Jaffar v. Senior Superintendent of Police and
2 others, 1997 MLD 1198
[11] Asif Ali and others
v. K.M.C. through its Administrator and 6 others, 1995 CLC 1659
[12] Noori Trading Corporation (PVT.) LTD. and others v.
Federation Of Pakistan, PLD 1989
[13] Pakistan
National Shipping Corporation v. Rent Controller,
[14] State of
[15] Union of
[16] Tariq Transport Company
[17] AIR 1961
SC 1506
[18] The Murree Brewery Co. Ltd. v.
[19] All Gilgit Baltistan
Workers v. Federation of
[20] Lal Harsh Deo Narain
Singh & another v. State of
[21] Hayat Khatoon v. Allah Dino,
1985 CLC 1343
[22] Mst. Baghul and 17 others v. Deputy
Commissioner, Tharparkar and 13 others, 2004
CLD 1220
[23] Ibid.
[24] Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) LTD, 2009 PTD 1392; Wattan
Party through President v. Federation of Pakistan, P L D 2006 SC 697; Ghulam Ali
Shah v. Deputy Commissioner & Incharge,
Settlement Cell,Sanghar, 1984 CLC 1729
[25] Assistant
Collector Central Excise v. Dunlop India Ltd., AIR 1985 SC 330
[26] Himmatlal v. State of M.P., AIR 1954 SC 403; Ganpat Roy v. Addl. D.M., AIR 1985 SC 1635; Akhtar Abbas v. Administrator,
Municipal Committee, Pattoki, 1996 PLC (C. S.) 429 Muhammad Aslam
and others v. Municipal Committee and others, 1998 P L C (C.S.) 93
[27] Wattan Party through President v. Federation of
[28] B.E.S. Co.
Ltd. v. Commrl. Tax Officer, AIR 1956 Cal 299; Ram
& Shyam Co. v. State of
[29] Mian Ayaz Anwar v. Federation of
[30] Abid Hussain v. Government of Sind Through Chief Secretary, PLD 1984 Karachi 269 Shaukat Ali
v. State Bank of Pakistan, 2007 CLD 1352
[31] Bhagirath Singh v. State of
[32] Zila Parishad v. Kundan Sugar Mills, AIR 1968 SC 98
[33] 2010 CLD
804
[34] PLD 2010
[35] Hayat Khatoon v. Allah Dino,
1985 CLC 1343;
Chairman, Central Board of Revenue,
[36] Baburam v. Zila Parishad, AIR 1969 SC 556; Chief Engineer, A.E.B v. Commissioner
for Workmen's Compensation Authority, 2000 PLC (CS) 1082
[37] Syed Ali Abbas v. Vishan Singh, PLD 1967 SC 294
[38] Messrs
Ahmed Clinic v. Government of Sindh and others, 2003
CLC 1196
[39] Messrs
Pioneer Cement Limited v. Province of the
[40] Vincent
and others v. Karachi Development Authority, 1992 CLC 518
[41] Pervez Iqbal v. Provincial Transport
Authority, Sindh, 1996 CLC 182
[42] Sri Balasubramania Traders v. Assistant Commissioner of Income-Tax, 2001 PTD 3475 Muhammad Younus v. Divisional Canal Officer, Lodhran
Canal Division, Multan, 2010 CLC 68
[43] Syed Allah Dost v. Haji Muhammad Alam and 12 others, PLD 1987
[44] Ibid
[45] Lt. Col. Nawabzada Muhammad Amir Khan v. The
Controller of Estate Duty, etc., PLD 1961 SC 119
[46] Chief Engineer, A.E.B v. Commissioner for Workmen's Compensation Authority, 2000 PLC
(CS) 1082;
[47] Dr. Ghulam Mustafa Chaudhry v. Dr. M Ashiq Khan Durrani, VC BZU Multan, 2000 PLC (CS) 385
[48] Faisal Razzaq v. Tehsil
Municipal Administration, Khairpur Tamewali, 2007 YLR 2887
[49] M. Pervaiz Iqbal v. P.O.P., and
others, 2008 YLR 2485
[50] WAPDA v. Commissioner Hazara
Division, 1992 SCMR 21
[51] Dr. M. O. Ghani, Vice‑Chancellor,
[52] Faisal Razzaq v. Tehsil
Municipal Administration, Khairpur Tamewali, 2007 YLR 2887 Nizam-ud-Din
Ahmad v. Commissioner of Sales Tax, 1971 SCMR 68
[53] The
Presiding Officer v. Sadruddin Ansari,
PLD 1967 SC 569
[54] Waseem-ul-Haq v. Govt. of Sindh,
PLD 1975
[55] Mrs. Ghinwa Bhutto v. Govt. of Sindh,
PLD 1997
[56] Moula Bux alias Mouledino v. S.H.O. Police Station Hatri
Ghulam Shah, 2003 YLR 1316
[57] Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani, P L D 2002
[58] Ghulam Sarwar Zardari v. Piyar Ali
alias Piyaro, 2010 SCMR 624
[59] Zulfiqar Ali
v. Sub-Divisional Police Officer, Jampur, District Rajanpur, 2010 P.Cr.L.J. 556
[60] Abdul Baqi and others v. The Superintendent, Central Prison , Machh, PLD 1957
[61] Mrs. Razia Begum v.
Cantonment Board,
[62] PLD 2000
[63] SBLR 2001
[64] Mian Ayaz Anwar v. Federation of