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Writ Petition No. 7507 of 1979, decided on 2nd December, 1980.

(a) West Pakistan Wheat, Wheat‑Atta, Maize, Rice and Sugar Distribution Order, 1967‑

‑‑ And Constitution of Pakistan (1973), Art. 199‑Writ Jurisdiction Ration depot ‑Suspension of authorisation ‑Competency of writ without exhausting other remedies‑Petitioner, condemned unheard and order of suspension of authorisation made in disregard of principles of natural justice‑Aggrieved person, wield, can invoke writ jurisdiction of High Court without having resort to other remedies.

Messrs Atta Elahi Muhammad Riaz v. D. F. C. (D), Lahore W.P. No.1824 of 1973; Imtiaz Ahrnad v. Ghulam Ali and others P L D 1963 S C 382; Commissioner, Hyderabad Division, Hyderabad v. Muhammad and others 1969 S C M R 515; Ali Abbas v. Vishan Singh P L D 1967 S C 294; Fazal Din and others v. Commissioner, Peshawar and another P L D 1968 Pesh. 30 and Murree Brewery Company Ltd. v. Pakistan and 2 others P L D 197'0 Lah. 821 ref.

(b) West Pakistan Wheat, Wheat‑Atta, Maize, Rice and Suggar Distribution Order, 1967‑‑

----Cl. 6(2) and Constitution of Pakistan (1973), Art. 199‑Cancellation or suspension of authorisation of Ration depot‑Provisions of Distri bution Order, 1967, penal in nature‑Aggrieved person, held, can file appeal against order of suspension or cancellation and can challenge such orders in writ jurisdiction.‑[Appeal (civil)].

Ramzan v. Rehabilitation Commissioner, Sargodha and another P L D 1963 Lab. 461 and Kaniz Fatima and 3 others v. Member Board of Revenue, Punjab and others. P L D 1973 Lab. 495 ref.

---‑ Maxim : Audi alterm partem‑Order adversely effecting legal right of a person, without providing opportunity to be heard, held, a nullity.

University of Dacca v. Zakir Ahmad P L D 1965 S C 103; Muhammad Saleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97; Muhammad Hussain v. Muhammad Khalil and 3 others P L D 1976 Lab. 1374 Zahoor Ahmad v. Mahmood All P L D 1977 Lab. 1377 and Writ Petition No. 1824 of 1973 ref.

Mian Saeed‑ur‑Rahman Farrukh for Petitioner.

Hassan Ahmad Khan Kanwar for Respondent No. 3.

Nemo for Respondents Nos. 1 and 2.

Dates of hearing: 28th November and 2nd December, 1980.

The petitioner is a retail distributor for Basti Rehmatpura, Okara, in view of the authorization issued in his favour by the District Magistrate, Sahiwal, under the Wheat, Wheat‑Atta, Maize, Rice and Sugar Distribution Order. On 3‑8‑1979 a case under sections 3 and 6 of the Foodstuffs (Control) Act, 1958, read with section 420, P. P. C. was registered against him on a written complaint made by Sh. Muhammad Akram Magistrate Section 30, Okara, as during the raid conducted by him a bag of sugar was recovered from the house of one Abdul Latif who had allegedly purchased it in the black market for his hotel from the petitioner. On checking the stock of the petitioner it was found in excess from that shown in the record. It was also discovered that the petitioner had committed forgery in the record by getting fake thumb‑impressions affixed in the record. Besides this, a number of persons bad complained against the petitioner that he had retained their ration cards and had refused to return the same to them. According to them, the petitioner had refused to issue sugar against the aforementioned ration cards.

2. On 19‑8‑1979 District Food Controller Sahiwal, respondent No. 1, suspended the authorization of the petitioner in view of the registration of the aforementioned criminal case against him. The petitioner filed an appeal against the order of suspension of authorization but the same was dismissed on 8‑11‑1979 by the Deputy Director Food; Multan Region, respondent No. 2.

3. The petitioner has challenged the order of suspension of authoriza tion on the plea that neither any show‑cause notice was issued to him nor any opportunity of explaining his position was afforded to him before passing the order in question. He has also assailed the order of respondent No. 2 on the ground that he had failed to appreciate the legal position that the order of suspension of authorization was illegal and without lawful authority in view of the decision of this Court in Writ Petition No. 1824 of 1973, Messrs Atta Elahi Muhammad Riaz v. D. F. C. (D), Lahore. The petitioner has contended that there was no legal justification for the suspension of his authorization merely because a criminal case was registered against him. According to him the aforementioned case was registered with mala fide intention at the behest of Muhammad Akram, respondent No. 3 who along with others had been trying for a long time for the cancellation of his authorization. On 23.2‑78 a case under section 6 of the Foodstuffs (Control) Act was registered against him on the allegation that he was selling sugar at the rate of Rs.5 per seer but the case was cancelled under the order of the Illaqa Magistrate on 18‑3‑1979 as it was found that the case was registered against the petitioner due to enmity. Muhammad Akram, respondent No. 3, had also got a complaint filed against the petitioner under section 6 of the Foodstuffs (Control) Act on the allegation that he was selling sugar in the black market but the complaint was dismissed by the Illaqa Magistrate on 26‑3‑1979. Later on an application for cancellation of his authorization was also dismissed on 8‑4‑1978.

4. Muhammad Akram, respondent No. 3, alone has contested this writ petition. In the written statement filed by him he has pleaded that the present writ petition is not legally competent as the petitioner has invoked the jurisdiction of this Court without exhausting other remedies, that the petitioner has not come with clean hands as his contention that the case registered against him on 23‑2‑78 had been cancelled, is not correct because the case is being investigated under the orders of the A. S. P. and the report would be submitted after completion of investigation as is evident from the report of the Investigation Officer on the application Annex. R/1 and further that the petitioner had been indulging in malpractices as ration depot‑holder in the past and a number of written complaints were made against him and were enquired into by the officials of the Food Department and that the order of suspension of authorization passed against the petitioner is an interim order which cannot be challenged in a writ petition. According to the learned counsel for third respondent the suspension of the petitioner's authorization is legally justified in view of the allegations made against him on the basis of which a criminal case has been registered against him.

5. It is evident from order dated 19‑8‑1979 passed by the District Food Controller, Sahiwal, respondent No. 1, that the authorization of the petitioner was suspended as a case for selling sugar in the black market had been registered against him. It is not disputed that the aforementioned order was passed against the petitioner without affording him an opportunity to explain his position. It has been contended by the learned counsel for respondent No. 3 that the petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, without exhausting his other legal remedies. He has referred to sub‑clause (3) of clause 6 of the Wheat, Wheat‑Atta, Maize, Rice and Sugar Distribution Order, 1967, which confers revisional jurisdiction upon Government in respect of order passed under the aforementioned Order and empowers it to call for the record of any cage which is pending before or has been disposed of by a District Food Controller, Deputy Director, District Magistrate or Commissioner for the purpose of satisfying itself as to the propriety or correctness of any order passed in the said case and after perusal of the record to pass such order as it may think fit. According to the learned counsel for respondent No. 3 the petitioner should have invoked the revisional jurisdiction of the Government after the dismissal of his appeal by respondent No. 2 before filing the present writ petition. He has relied on lmtiaz Ahmad v. Ghulam Ali and others (PLD1963SC382) and The Commissioner, Hyder abad Division, Hyderabad v. Muhammad and others (1969SCMR515), in support of his arguments that writ jurisdiction cannot be invoked where other remedy is available to the petitioner but he has not availed of it.

6. It may be noticed that the petitioner had availed of the legal remedy in the form of appeal which he could claim as of right under sub‑clause (2) of clause 6 of the Wheat, Wheat‑Atta, Maize, Rice and Sugar Distribution Order, 1967, before filing the present writ petition. Although Government could also interfere in the exercise of its revisional jurisdiction under sub clause (3) of clause 6 of the aforementioned Order yet considering the facts of the case that the petitioner had been condemned unheard and the order of suspension of his authorization was made in utter disregard of the principle of natural justice as embodied in the maxim audi alteram partem the petitioner was not bound to file a revision petition against the appellate order of respondent No. 2 before coming to this Court. It is now too well settled rule of law that in case of excess of jurisdiction an aggrieved person can invoke the writ jurisdiction of the High Court without resorting to other remedies. Reference in this connection may be made to Ali Abbas v. Vishan Singh (P L D 1967 S C 294), Fazal Din and others v. Commissioner, Peshawar and another (P L D 1968 Pesh. 30), and Muree Brewery Company Ltd. v. Pakistan and 2 others (P L D 1970 Lah. 821). In Murree Brewery Company Ltd. v. Pakistan and 2 others it was held that writ jurisdiction of the High Court could be invoked notwithstanding the pendency of appeal of the aggrieved party where the impugned order was challenged on the allegations of male fide, excess of jurisdiction and failure to observe the rule of audi alteram partem. Thus there is no force in the contention of learned counsel for respondent No. 3 that the present writ petition is not competent as the petitioner has not availed of the other legal remedy before filing this writ petition. Imtiaz Ahmad's case relied upon by the learned counsel is distinguishable on the ground that the petitioner in that case had invoked the writ jurisdiction of the High Court in an election matter and it was in that context that the following observation was made:

Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of. See Woolverhampton New Water Works Co. v. Howkesford (1859) 6 C B (NS) 336 and Navile v. London Express Newspaper Ltd. (1919) A C 368. Hence ordinarily the Court in exercise of its writ jurisdiction declines to interfere in cases of election because it is desirable that decision on a matter of disputed election should as soon as possible become final and conclusive so that the constitution of the Council or Legislature may be distinctly and speedily known. There is another reason why the Court declines to enter into these questions because in such cases there are bound to be serious disputes on questions of fact which cannot be properly decided in the writ jurisdiction. If it was to do so, it would enter into a field of investiga tion which is more appropriate for a Tribunal rather than for a Court exercising the prerogative of issuing writ. The Court has therefore avoided interfering with election disputes, although it cannot be said that the writ jurisdiction of the Court cannot at all be attracted in such cases. For instance, where actions are characterised as being done in bad faith, the exercise of public power may thus be called in question."

In the other case relied upon by the learned counsel for respondent No. 3, Commissioner's order under section 3 of the West Pakistan Criminal Law (Amendment) Act (VII of 1963), whereby the case was referred to the Tribunal for trial could be challenged in the High Court in revision but the accused instead of filing a revision petition in the High Court challenged it by invoking the writ jurisdiction of the High Court. As both the remedies were available to the accused in the High Court it was .held that since the accused could get adequate relief by invoking the revisional jurisdiction of the High Court, there was no justification for not following that remedy. As in the present case the alternate remedy was not available from a judicial A forum and could be sought only from the Government whose representative namely, respondent No. 2, had already upheld the impugned order, the petitioner was not bound to submit a revision petition to the Government before filing the present writ petition.

7. The other objection raised by the learned counsel for respondent No. 3 is that the impugned order is not a final order as the authorization of the petitioner has not been cancelled so far and, therefore, he cannot challenge it under Article 199 of the Constitution of the Islamic Republic of Pakistan (1973). It has been contended that the petitioner should have approached this Court only if his authorization had been cancelled by the District Magistrate. Learned counsel has relied on Ramzan v. Rehabilitation Commissioner, Sargodha and another (P L D 1963 Lab. 461), and Kaniz Fatima and 3 others v. Member Board of Revenue, Punjab and others (P L D 1973 Lab. 495), in support of his contention that remand order which is admittedly an interim order cannot be interfered with by the High Court in its writ jurisdiction. It is not possible to accept the contention of the learned counsel for respondent No. 3 that the impugned order is an interim order because suspension of authorization under clause 6(1) of the Wheat, Wheat‑Atta, Maize, Rice and Sugar Distribution Order, 1967, is a penal order as it had the effect of depriving the retail distributor from the income which it would have earned if he had been allowed to continue to distribute the articles mentioned in the authorization order for consumption g in the. distribution area. Cancellation of authorization is admittedly a penalty as it deprives the retail distributor for good from the income be earns from the distribution of the articles mentioned in the authorization order.

Suspension of authorization is also a penalty but with this difference that the retail distributor is not permanently deprived of the income earned by him under the authorization order because if the suspension order is recalled the retail distributor can resume the distribution of the articles mentioned in the authorization order in the distribution area. It may be mentioned that sub‑clause (2) of clause 6 of Wheat, Wheat‑Atta, Maize, Rice and Sugar Distribution Order, 1967, provides appeal both in the case of cancellation of authorization and ‑suspension of authorization which also gives clear indication that both the orders are of penal nature and an aggrieved person can file a appeal against these orders before the competent authority. Thus the impugned order being penal in nature has been rightly challenged by the petitioner by filing this writ petition.

8. The past conduct of the petitioner which according to the learned counsel for respondent No. 3 disentitles him to get equitable relief from this Court is not relevant particularly when the allegations made against him b respondent No. 3 in his written statement are not admitted. These allegations, on the other hand, support the petitioner's contention that respondent No. 3 and certain other interested persons have playing an important roll in the registration of criminal case against him m consequence of which the impugned order was passed by respondent No. 1. As the impugned order in penal in nature and has been passed without affording opportunity of hearing to the petitioner it is not legally sustainable. There is no dearth of authorities in support of the legal proposition that an order adversely affecting the legal rights of a person if passed without allowing him an opportunity to show cause against such order is a nullity. University of Dacca v. Zakir Ahmad (P L D 1965 S C 103), Muhammad Saleh and another v. Messrs United Grain and Fodder Agencles (P L D 1964 S C 97), Muhammad Hussain v. Muhammad Khalil and 3 others (P L D 1976 Lah. 1374) and Zahoor Ahmad v. Mahmood Ali (P L D _19.77 Lah. 1377), may be referred in this connection. Learned counsel for the petitioner has also referred to the decision of this Court in Writ Petition No. 1824 of 1973, decided on 15‑5‑1974 in which case order of cancellation of authorization was declared to be without jurisdiction as it was made without affording opportunity of hearing to the retail distributors.

9. For the foregoing reasons I allow this petition with costs. Order of suspension of authorization passed by respondent No. 1 on 19‑8‑1979 as up held by respond6nt No. 2 in appeal on 18‑I1‑1979 is declared to be without lawful authority and of no legal effect.

M. Y. H. Petition accepted.