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Writ Petitions Nos. 37, 38, 56, 61 of 1980, 11 of 1984, 28, 29, 30, 31, 67 of 1985; 42, 44, 45 of 1986, 7 and 46 of 1987, decided on 2nd August, 1987.
‑‑‑ Ss. 3, 4 & 5‑‑Object, scope and application of Ss. 3, 4 & 5 of the Act.
‑‑‑S. 47 (1)(h)‑‑Scope of S. 47(l)(h)‑‑Word "claim" and term 11tortious" ‑‑Meaning.‑‑[ Words and phrases].
Black's Law Dictionary ref.
‑‑‑ S. 5(4)‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 47(l)(b)‑‑Scope and application of S. 47(l)(b) of the Constitution‑ ‑Provisions contained under S. 47(l)(b) of the Constitution have nothing to do with the establishment of Special Tribunal under S. 5(4) of the Azad Jammu and Kashmir Co‑operative Banks (Repayment and Recovery of Loans) Act. 1977.
‑‑‑S. 44‑ ‑Jurisdiction of High Court‑ ‑Subordinate legislation cannot oust jurisdiction of the‑ High Court conferred by the Constitution.‑‑ [Jurisdiction].
P L D 1985 S C (AJ&K) 56 and P L D 1963 S C 322 ref.
‑‑‑ S. 44‑‑Jurisdiction of High Court‑ ‑ Constitution lays a condition precedent to be met before invoking special jurisdiction of High Court that High Court must be satisfied that aggrieved person has no other adequate remedy under law to redress his grievance and on such satisfaction it has to embark upon exercise of its jurisdiction‑ Word "adequate" ‑‑Meaning. ‑‑ [Words and phrases‑ ‑Jurisdiction
Black's Law Dictionary ref.
‑‑‑S. 44‑‑jurisdiction of High Court, exercise of‑‑Adequate remedy‑ Test and analysis.
Corpus Juris Secundum, Vol. 14, p. 37; Mehboob Ali Malik's case P L D 1963 (W.P.) Lah. 575; Zubair Siddiquils case P L D 1964 (W.P.) Lah. 453; Anjuman‑e‑Ahemadiya, Sargodhals case P L D 1966 SC 639; Sadruddin Ansari's case PLD 1967 S C 569; Murree Brewery Company's case P L D 1972 S C 279; Alam Din's case P L D 1983 Azad J&K 25; Mir Sadaruddin's case PLD 1976 Azad J & K 1 and Muhammad Aslam Bajwals case P L D 1974‑Lah. 545 ref.
‑‑‑S. 5(4)‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 47 (1) (h)‑‑ Decision of Registrar, Co‑operative Societies as well as establishment of Special Tribunal are not protected by provision of S. 47(l)(h) of Interim Constitution‑‑Functions assigned to said Authorities have nothing to do with matters relating to claims for tortious acts of the Government or the Council.
Mir Sardaruddin's case P L D 1976 Azad J & K 1 and Muhammad Aslam Bajwals case P L D 1974 Lah. 545 distinguished.
‑‑‑ S. 44‑‑Azad Jammu and Kashmir Co‑operative Banks (Repayment and Recovery of Loans) Act, 1977, S. 5(4)‑‑Establishment of Special Tribunal under statute‑‑Writ jurisdiction of High Court‑ ‑Invokation of‑‑When a statute under which a Special Tribunal or Authority acts, provides alternative remedy in the shape of appeal, aggrieved party may not be permitted to invoke writ jurisdiction of High Court without availing alternative remedy, provided the remedy contemplated by statute was expeditious, beneficial, effective and sufficient to redress the grievance of party‑‑In absence of such a test, the aggrieved person, irrespective of presence of adequate remedy, shall be free to invoke writ jurisdiction of High Court to seek redress of his grievance.
‑‑‑S. 44‑‑Azad Jammu and Kashmir Co‑operative Banks (Repayment and Recovery of Loans) Act, 1977, S. 5(4)‑‑Invokation of writ jurisdiction of High Court‑‑Adequate remedy‑‑Special Tribunal established under S.5(4) of Act, 1977 being free to decide an appeal expeditiously, effectively and to the benefit of aggrieved party without any difficulty, restriction or hesitation, alternative remedy in the shape of appeal before Special Tribunal, held, was quite adequate‑‑In absence of any control or limitation on appellate jurisdiction of the Special Tribunal remedy by appeal would be quite adequate and equitable.
Corpus Juris Secundum, Vol. 14, p. 37; Mehboob Ali Malik's case P L D 1963 Lah. 575; Anjuman‑e‑Ahmadiya, Sargodhals case PLD 1966 S C 639; Sadaruddin Ansarils case P L D 1967 S C 569; Murree Brewery Co.'s case P L D 1972 S C 279; Alam Din's case PLD 1983 Azad J & K 25; Sardaruddin's case P L D 1976 Azad 3 & K 1 and Muhammad Aslam Bajwals case P L D 1974 Lah. 545 ref.
Basharat Ahmad Sheikh, Chaudhry Riaz Akhtar, Chaudhry Muhammad Hussain and M.Y. Surakhvi for Petitioners.
Agha Ashiq Hussain for Registrar and Deputy Registrar Respondents.
M. Nisar Mirza, Addl. A.‑G. for the State.
Dates of institution: 5th July; 2nd November; 6th, 9th March; 17th December, 1980; 29th September; 20th, 21st December; 10th February and 4th June, 1987.
.‑‑The petitions addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, though contain distinct and different facts and grounds challenging orders and decisions of Registrar and Deputy Registrar, Co‑operative Societies, Azad Jammu and Kashmir, yet confine to attack the propriety and validity of such decisions for their being violative of subsections (2) and (3) of section 5 of the Co‑operative Banks (Repayment and Recovery of Loans) Act, 1977 (hereinafter to be referred as the Act). One category of the petitions is that the Registrar failed to issue show cause notice contemplated under subsection ( 2) of section 5 before passing the impugned orders for recovery of alleged loans. The other category is that. the Registrar refused to exercise jurisdiction under subsection (3) of section 5 to decide the liability of loan by providing opportunity of hearing to the petitioners. Thus, the orders challenged in the petitions are described violative of the provisions of subsection (2) and subsection (3) of section 5 of the Act, as such without jurisdiction and mala fide.
2. Detailed facts of each petition need not be described as the controversy desired to be resolved at this stage confines to (1) writ jurisdiction of the High Court under the Interim Constitution Act and (2) whether the presence of Special Tribunal constituted under subsection (4) of section 5 of the Act to hear appeals against the decisions of Registrar under subsection (6) of section 5, amounts to adequate remedy, contemplated under section 44 of .the Interim Constitution Act. Here it may be stated that these propositions are raised by the learned counsel defending the Registrar, particularly on establishment of the Special Tribunal enjoying appellate jurisdiction against the decisions of Registrar, Co‑operative Societies.
3. In Azad Jammu and Kashmir, various co‑operative banks were registered under the Co‑operative Societies Act, 1925, and were permitted to function in combined fashion of co‑operative societies and modern banking system. In order to achieve the intended objectives, the banks were allowed to raise funds by following means:‑------
(i) by issue of shares;
(ii) by receiving deposits;
(iii) by inviting investments;
(iv) by raising loans;
(v) by admission fee;
(vi) by other means as decided by the Board; and
(vii) by subsidies or grant‑in‑aid from the Government.
It is apparent from the record that the main source of funds of the co‑operative banks, was individual deposits. The co‑operative banks operated private accounts and advanced loans to the account‑holders on the pattern of scheduled banks. The controlling authority was Registrar Co‑operative Societies. The Government dissolved all the co‑operative banks by adapting the Federal Bank for Co‑operative and Regulation of Co‑operative Banking laws, through Ordinance No.XXXIV of 1977, with effect from January 7, 1977. The Management, estates and liabilities of the dissovled banks were taken over by the authorities envisaged under law. The Registrar was empowered to recover the loans advanced to various borrowers and to pay the amount to depositors of the said banks. Legislative measures, thus, were effectively taken but it seems that the intended object was yet to be achieved. It was in this background that the present Act was enforced.
4. In order to appreciate and analyse the scope of controversy raised before us, it appears expedient to examine the scheme of law under which the impugned actions of the respondents have taken place. Section 3 of the Act postulates the crux of scheme for recovery of loans payable to dissolved co‑operative banks. It provides that every loan payable to a co‑operative bank shall, unless repaid earlier, be paid to the Provincial Co‑operative Bank in case of co‑operative banks dissolved under section 42, subsection (4) of the Establishment of the Federal Bank for Co‑operative and Regulation of Co‑operative Banking Ordinance, 1976 and to the successor Co‑operative Society in case of co‑operative banks which have been converted into non‑banking societies. The manner of payment of loan was described as:
(a) that not less than 20% of the loan shall be paid within sixty days from the enforcement of the Act No. XXXIV of 1977 or in such extended period not exceeding thirty days as the Registrar may fix; and
(b) the balance of the loan was to be paid within one month from the expiry of the period mentioned above or to be secured by mortgage, pledge, hypothecation or assignment of such property of the borrower or his surety or of both as the Registrar may think adequate. The balance was to be paid in instalments within a period not exceeding one year from the commencement of the Ordinance No.XXXIV of 1977. Nevertheless, the Registrar, in fit cases, was empowered to extend period but not for more than nine months in cases where 50 of the loan was already paid.
The manner and mode of payment of the loan is explicitly described in section 3. It has defined the device as well as period in which repayment was to be made.
5. Section 4 of the Act contemplates the position uncovered by section 3 and lays down that when the loan or any part thereof is not paid within the statutory period, the Registrar was empowered to recover the same as arrears of land revenue. He was conferred with powers of Collector under the Land Revenue Act. Section 5 of the Act makes provision for settlement of liability of loan. It postulates that the Provincial Co‑operative Bank and Co‑operative Societies shall furnish to the Registrar full particulars in respect of all cases of loans required to be repaid under section 3, within 30 days, or within such extended period as the Registrar may allow, from the commencement of Ordinance No.XXXIV of 1977. On receipt of information of tie amount of loan, the Registrar has to is‑sue notice to the borrower to repay or secure the loan. On receipt of the notice, when the borrower repudiates the loan or liability ascribed to him, he is enjoined to deny the liability within 30'days from the receipt of the notice or within such further period as the Registrar may extend. In case of denial of liability of loan, it is enjoined upon the Registrar to issue notice to the Bank of the Society, as the case may be, and to hold inquiry necessary to settle the question of loan. Subsections (2) and (3) of section 5 of the Act are reproduced below:‑------
"(2) On receipt of information under subsection (1) in respect of any loan the Registrar may cause notice to be issued to borrower requiring him to repay and secure the loan.
(3) Where any borrower to whom notice under subsection (2) is issued does not admit the loan or any liability arising therefrom, he shall within thirty days of the receipt of notice, or within such further period as the Registrar, may, in special circumstances allow, submit either personally or by registered post (acknowledgment due), a written statement to that effect to the Registrar, who thereupon shall cause notice to be issued to the Bank or society concerned, and shall, after making such inquiry as he considers necessary, and giving the parties reasonable opportunity of being heard, decide about the liability.
The decision of Registrar made under subsection (3) of section 5 of the Act is subject to appeal before Special Tribunal appointed by the Government under subsection (4). Here it is relevant to mention that only such decisions of Registrar or Deputy Registrar as are made under the provisions of subsection (3) of section 5, are made subject to appeal before the Special Tribunal. The orders and decisions of Registrar passed under other provisions of the Act, however, are not appealable before the Special Tribunal.
6. It is evident from the aforesaid provisions that subsection (2) makes it imperative for the Registrar to cause notice to the borrower to repay or secure the loan. It is in consequence of issuing notice under subsection (2) that the manner of inquiry contemplated by subsection (3) comes into force. Unless the condition laid down under subsection (2) is fulfilled, Registrar cannot step further to finalise the liability of a borrower. Likewise, when notice is issued to a borrower, subsection (3) postulates that if the borrower does not admit the loan or liability arising therefrom, he shall, within thirty days of the receipt of notice, submit personally or by registered post, a written statement to that effect to the Registrar. On repudiation of liability of loan, it is enjoined upon Registrar to cause notice to the Bank or society concerned and the alleged borrower, his surety or the beneficiary, as the case may be, to join the inquiry necessary to decide the question of loan or liability. In inquiry, the Registrar has to give reasonable opportunity of hearing to the parties before deciding the liability. The rule laid down under subsection (3) is based on the rule of natural justice of audi alteram partem. Thus, any departure from the conditions listed under subsection (3) renders the decision of Registrar invalid and without jurisdiction. It is these provisions of law which are alleged to be violated by the Registrar while realising loan from the petitioners.
7. Subsection (6) of section 5 of the Act further provides the scope of appeal against the decisions of Registrar before the Special Tribunal. The right of appeal conferred under subsection (6) confines to decisions of Registrar contemplated under subsection (3) alone. The effect of right of appeal under subsection (6) shall be examined elsewhere, but suffice it to say that introduction of right of appeal under subsection (6) in one of the grounds for ouster of writ jurisdiction of the High Court. According to the learned counsel for the respondents, the forum of appeal is adequate remedy contemplated under section 44 of the Azad Jammu and Kashmir Interim Constitution Act and in presence of remedy of appeal, writ jurisdiction cannot be invoked. But before dealing with this aspect of the case, we propose to first decide the question of ouster of jurisdiction of High Court as contended by Agha Ashiq Hussain in the light of provisions of section 47, subsection (1), clause (h) of the Interim Constitution Act.
7. Section 47 of the Interim Constitution Act deals with constitution of Administrative Courts and Tribunals. It is reproduced below:
"47. Administrative Courts and Tribunals.‑‑(l) Notwithstanding anything hereinbefore contained, the Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends, may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of‑‑
(a) matters relating to the terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir including disciplinary matters;
(b) matters relating to claims arising from tortious acts of the Council or the Government or any person in the service of Azad Jammu and Kashmir or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment.
(3) An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.
The language used in clause (h) of sub‑section (1) of section 47 of the Interim Constitution Act manifests the true object of the framers of the Constitution as it relates to Administrative Courts or Tribunals empowered to exercise exclusive jurisdiction in matters relating to claims arising from tortious acts of the Council or the Government or any person in the service of Azad Jammu and Kashmir or any local or other authority empowered to levy tax or cess. This provision also finds place in other Constitutions of free States and its obvious purpose is confined to such matters which relate to claims admissible against tortious acts of the Council or the Government. The use of word "claims" refers to demand for compensation or property as one's right. The word "claim", as defined in Black's Law Dictionary, means:
" To demand as one's own or as one's right; to assert; to urge; to insist. Cause of action. Means by or through which claimant obtains possession or enjoyment of privilege or thing. Demand for money or property, e.g. insurance claim.
Right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, B whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured."
The term tortious act" emanates from the word "tort", which, again, is defined in Black's Law Dictionary as:‑--
"A private or civil wrong or injury, other than breach of contract, for which the Court will provide a remedy in the form of an action for damages. A violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction . . . .
Three elements of every tort action are; Existence of legal duty from defendant to plaintiff, breach of duty, and damage as proximate result.
A legal wrong committed upon the person or property independent of contract. It may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual."
In civilised and advanced States, law is enforced to provide remedy to a wrong made to a citizen. Thus, wherever a citizen bring a complaint of tortious act of the Government or any local authority, forum is provided to redress grievance of such citizen by granting adequate compensation for the wrong suffered by him. In the United States, a law named "Federal Tort Claims Act, 1946" is in force. The law largely abrogated the Federal Government's immunity from tort liability and established the conditions for suits and claims against the Federal Government. But this, again, is subject to certain exceptions. In our country, a tortious act, whether of an individual or of the Government, is equally subject to remedy by way of compensation under the ordinary law. Whenever a person suffers a civil injury or criminal injury, less than a penal offence, he is free to seek his redress by pressing demand for claim through the Court of law. Nevertheless, a provision is made in clause (b) of subsection (1) of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, to establish administrative Courts or tribunals for the settlement of matters relating to claims for tortious acts of the Government or the Council, as the case may be. This is just to point out that the provisions contained under clause (b) of subsection (1) of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, have nothing to do with the establishment of Special Tribunal under subsection (4) of section 5 of the Act.
8. Agha Ashiq Hussain, the learned counsel for the respondents, forgets that the authority and jurisdiction to decide the liability of loan, is created and controlled under the Act. Likewise the decisions of Registrar made under subsection (3) are appealable before the Special Tribunal, but the Special Tribunal, again, owes its creation only to the Act. It is amusing to hear from the mouth of a senior Counsel that the Special Tribunal enjoying appellate jurisdiction against the decisions of Registrar owes its establishment to section 47, subsection (1), clause (b), of the Interim Constitution Act, 1974. There is no force in the contention. It is, therefore, repelled.
9. Next, it was argued that section 14(l) of the Act placed a complete bar to the jurisdiction of all Courts and subsection (3) further provided that all proceedings pending before any Civil Court, including the High Court and the Supreme Court, in respect of any matter to which the Act relates, shall abate forthwith and no such proceedings shall henceforth be taken cognizance of by any such Court. It is accepted that section 14 of the Act contemplated bar of jurisdiction, but this again is to be decided in the light of the force of law applicable to the proposition under consideration. It is already seen that the writ jurisdiction is conferred on the High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Constitution is the supreme law of the State. The Supreme law of, course, supersedes subordinate legislation. The objection of bar of jurisdiction of the High Court is unsustainable as subordinate legislation cannot oust jurisdiction of the High Court conferred by the Constitution. We need not dilate on this point as we understand that the learned counsel for the respondents shall have no quarrel with this observation, but for the satisfaction, we would like to cite, the dictum of the Supreme Court of Azad Jammu and Kashmir laid down in Muhammad Ishaque's case P L D 1985 S C (AJK) 56. That was also a case of recovery of loan. In that case, the Registrar confiscated a bus of Muhammad Ishaque treating it in the ownership of one Najmul Hassan who had obtained loan from a dissolved bank. The action of Registrar was challenged before the High Court through a writ petition, where the impugned order was set aside by restoring the bus to the owner. The Registrar feeling dissatisfied with the decision of the High Court, preferred an appeal before the Supreme Court. Among others, the learned counsel representing the Registrar‑appellant, challenged the writ jurisdiction of High Court in matters of recovery of loan under the Act. The learned Chief Justice of the Supreme Court turned down the objection and observed that jurisdiction of High Court is only barred when the impugned action is taken in strict conformity with the provisions of the Act which gave power to the authority and not otherwise. If an action is taken in violation of law, naturally Civil Court has authority to intervene and undo the wrong done to a subject. The Supreme Court of Pakistan examined the proposition in Nagina Silk Mill's case P L D 1963 S C 322. It was a case of assessment of income tax under section 67 of the Income‑ax Act, 1922. The law provided a bar to civil suit to set aside or modify the assessment made under the Act. The objection of ouster of writ jurisdiction was turned down with the following observation:
"Notwithstanding section 67, Income‑tax Act, 1922, which bars civil suit to set aside or modify an assessment made under the Act, the extraordinary writ jurisdiction of the High Court can be invoked in challenging an income tax assessment on the basis that the officer concerned lacked jurisdiction to pass the impugned order. The writ jurisdiction was conferred on the High Court by a constitutional provision and even if there be a conflict between such a provision and another statute, the constitutional provision must prevail."
10. Now we come to the last objection pertaining to adequate remedy as contemplated under section 44 of the Interim Constitution Act, 1974, by which writ jurisdiction was conferred on the High Court section 44 is reproduced below:‑--
44. Jurisdiction of High Court.‑‑(l) The High Court shall have such Jurisdiction as is conferred on it by this Act or by any other law. (2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law: ‑--
(a) On the application of any aggrieved‑ party, make an order: ‑
(i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to referain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or
(ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority, has been done or taken without lawful authority, and is of no legal effect; or
(b) on the application of any person, make an order:‑--
(i) directing that a person in custody in Azad Jammu and Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold that of Ace; or
(c) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power and performing any functions in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act.
(3) An order shall not be made under subsection (2) of this section on application made by or in relation to a person in the defence services in respect of his terms and conditions of service, in respect of any matter arising out of his service or in respect of any action in relation to him as a member of the Defence Services.
(4) Where‑‑
(a) application is made to the High Court for an order under clause (a) or clause (c) of subsection (2); and
(b) The Court has reason to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or otherwise being harmful to the public interest the Court shall not make an interim order unless the Advocate‑General has been given notion of the application and the Court, after the Advocate‑General or any officer authorised by him in this behalf has been given an opportunity of being heard, is satisfied that the taking of the interim order would not have the effect referred to in clause (b) of this subsection.
(5) In this section, unless the context otherwise requires, 'person' includes any body politic or corporate, any authority of or under control of the council or the Government and any Court or tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services."
A reading of the operative part of the section shows that High Court is empowered to exercise its jurisdiction if it is satisfied that no other adequate remedy is provided, on the application of an aggrieved‑party, to make an order in the cases described therein. The condition precedent, therefore, is that High Court shall only undertake the exercise of its special jurisdiction if it is satisfied that no other adequate remedy under law is available to the person invoking special jurisdiction of the Court. This provision, namely, "adequate remedy", finds no mention in Article 170 of the Constitution of Islamic Republic of Pakistan, 1956 or in Article 226 of the Indian Constitution. The provision was incorporated, first time, in Article 86(2) of the Constitution of Islamic Republic of Pakistan, 1962 and later on in Article 990) of the Constitution of Islamic Republic of Pakistan, 1973. The provision‑ in our Constitution was obviously introduced on the pattern of present constitution of Pakistan. It is agreed that the Constitutional powers of the High Court cannot be curtailed nor restricted except by the Constitution itself. The Constitution laid a condition precedent before invoking the special jurisdiction of High Court that the High Court must be satisfied that the aggrieved person has no other adequate remedy under law to redress his grievance and on such satisfaction, it has to embark upon exercise of its jurisdiction. The word "adequate", as defined in Black's Law Dictionary, means "sufficient; commensurate; equally efficient; equal to what is required; suitable to the case or occasion; satisfactory. Equal to some given occasion or work". The term "adequate remedy", again, is defined as:
"An 'adequate remedy at law' for purposes of rule that a litigant who fails to avail himself of a remedy provided by law and who is subsequently barred from pursuing that remedy because of his own lack of diligence cannot rely on the absence of a remedy at law as a basis for equitable jurisdiction, Is one which is as complete, practical and as efficient to the ends of justice and its prompt administration as a remedy in equity, and which is obtainable as of right.
An 'adequate remedy at law' prevention relief by injunction, means a remedy which is plain and complete and as practical and efficient to ends of justice and its prompt administration as a remedy in equity, and although an injunction will issue when legal remedy is inadequate, injunction should not be granted where complainant has an adequate remedy at law.
A remedy that affords complete relief with reference to the particular matter in controversy, and is appropriate to the circumstances of the case. Must reach and intended, and actually compel performance of duty in question. Must be plain, accurate certain, speedy, specific, and appropriate to the particular circumstances, and must also be equally as convenient, beneficial, and effective as the remedy by mandamus."
The test of adequate remedy is that the alternative remedy under law must be more expeditious, effective and able to afford sufficient relief. At page 37, volume 14 of Corpus Juris Secundum, "adequate remedy" is defined as "a remedy which is equally beneficial, speedy and sufficient, not merely a remedy which at some time in the future will bring about a revival of the judgment of the lower Court complained of in the certiorari proceeding, but a remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior Court or tribunal."
11. It is already noticed that the restriction of alternative remedy was introduced, for the first time, in the Constitution of Islamic Republic of Pakistan, 1962, and it was again introduced in the Constitution of 1973. The first case after enforcement of the Constitution of 1962, which analysed the scope of "adequate remedy" under Article 98, in Mehboob Ali Malik's case P L D 1963 W.P. Lahore 575. It was a Full Bench case, in which (late) Mr. Justice Manzur Qadir, C.J. analysed the scope of the term "adequate remedy" in paras 13 and 14 of his order, reproduced below:‑--
"The adequacy of an alternative remedy is to be judged in relation to the requisite relief.
(i) If the relief available through the alternative remedy, in its nature or extent is not what is necessary to give the re4quisite relief, the alternative remedy is not an 'other adequate remedy' within the meaning of Article 98.
(ii) If the relief available through the alternative remedy, in its nature and extent, is 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, with the speed, expense or convenience of obtaining it under Article 98. But in making this comparison those factors must be taken into account which would themselves alter if the remedy under Article 98 were used as a substitute for the other remedy.
(iii) 'In practice, the following steps may be taken:‑--
(a) Formulate the grievance in the given case, as a generalized category;
(b) Formulate‑the relief that is necessary to redress that category of grievance;
(c) See if the law has prescribed any remedy that can redress that "category of grievance in that way and to the required extent;
(d) If such a remedy is prescribed, the law contemplates, that resort must be had to that remedy;
(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will attorney, and the organ that takes over, will break down under the strain;
(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions attached to it which for a particular category of cases, would neutralise or defeat it so as to deprive it of its substances the Court should give the requisite relief under Article 98;
(g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy while generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Courts, should give the required relief under Article 98.. In the words of an eminent author:
'there would be something in the nature of the act or proceeding that makes it apparent to the superior Court that it will not be able to protect the rights of the litigants or afford them adequate redress otherwise than through the exercise of the extraordinary jurisdiction'.
The answer to the second question is deducible from the propositions already established.
"If there is no other authority which has the power to give relief of the requisite nature and extent, it is the duty of this Court in a fit case, to give that relief if it has the power to do so under Article 98. There is nothing in Article in‑ such a case, from 98 which would release this Court, obligation, merely because it would be necessary to take evidence, whether oral or documentary, before relief could be given.
On the other hand if there is another authority which has the power to give the relief of the requisite nature and extent, and this Court has to make a comparison of the speed, expense or convenience of giving that relief under Article 98, with the speed, expense or convenience of obtaining it from the other authority, the fact that it would be necessary to take evidence before giving the relief, might be almost a determining factor against attempting to give relief under Article 98. The need for taking oral evidence, in such a case would almost certainly be a conclusive consideration for not acting under Article 98.
12. In Zuhair Siddiquils case P L D 1964 W.P. Lahore 453, the writ petition addressed to the High Court under Article 98 of the Constitution of 1962, was dismissed on the satisfaction that appeals against the impugned orders were addressed before the proper forum created by statute. It was held that the alternative remedy being available to the petitioner, jurisdiction of High Court through writ petition could not be invoked. In Anjuman‑e‑Ahmadiya, Sargodha s case P L D 1966 S C 639, the proposition was exhaustively examined by (late) Mr. Justice Hamood‑ur‑Rehmar, as under:‑--
"In our view, when the relief sought for is by its nature one which lends itself to be effectively remedies by orders of the nature contemplated in paragraphs (a), (b) and (c) of sub‑Article (2) of Article 98, then the intention of the Constitution appears to be that the remedy granted by the Constitution should be made available to the citizen unless the Court is satisfied that other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the particular statute itself which has created the right of obligation and not a general remedy at law, as for example by a suit. On the other hand, if the remedy sought for is in substance a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case, the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. A suit is by no means as inexpensive or speedy or beneficial a remedy as the remedy provided by this Article.
Even in the first case where full redress can be given by an order contemplated under sub‑Article (2) of Article 98 if an alternative remedy by the law creating the right or obligation has been prescribed, the Court has still to consider whether such a prescribed alternative remedy is equally, inexpensive, expeditious, efficacious and beneficial."
13. The Supreme Court, again, examined the scope of term "adequate remedy" in Sadruddin Ansarils case P L D 1967 S C 569 as under:‑--
Though Article 98 of the Constitution has been couched in very wide terms it may safely be assumed that it incorporates within its orders or directions in the nature of those which could have been issued under the prerogative writs of mandamus, prohibition and certiorari. So far as these writs are concerned, the principle is undoubtedly universally accepted that it would not be in the exercise of sound judicial discretion to interfere where there is another 'adequate and specific legal remedy competent to afford relief upon the same subject‑matter.' A relief of this nature is a supplementary remedy which does not supersede legal remedies but rather supplies the want of such a remedy. But it is not any and every kind of remedy which will defeat this constitutional right. In order that the other remedy should be sufficient to warrant refusal to exercise this jurisdiction, it is necessary that the other remedy must be 'both specific and adequate' in the sense that it must be 'competent to afford relief upon the very subject‑matter of the application and be equally convenient, beneficial and effective."
14. There may be cases wherein the aggrieved party may have challenged the inherent jurisdiction of a Tribunal or an authority in an impugned action including the validity of the statute creating the authority or tribunal. In such a case it is, of course, permissible for High Court to examine the impugned orders as well as the vires of the statute irrespective of alternative remedy provided by the statute. In an identical proposition brought before the Supreme Court in Murree Brewery Co.'s case P L D 1972 S C 279. The controversy was resolved in the following manner:‑---
"The petitioner challenged the very jurisdiction of the Capital Development Authority to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well‑recognised exceptions to the general rule is a case where on order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and aggressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The appeal under section 36 of the Ordinance is limited to a matter which is within the jurisdiction of the authority concerned and the scope of the Ordinance. A question of jurisdiction is a matter for Review, which is based not on the merits but on the legality of the lower authority's proceedings."
15. One Alam Din challenged the order passed by Administrator Auqaf by invoking writ jurisdiction of this Court in Alam Din's case P L D‑ 1983 Azad J & K 25. An objection was raised before the Court that in presence of adequate remedy provided by Waqf Properties Act of 1960, the petitioner could not invoke the special jurisdiction of this Court. The learned Judges, on reviewing the case law on the point, laid down the rule that in presence of right of appeal provided under the Act, the writ jurisdiction could not be invoked and the writ petition was dismissed.
16. Our attention was invited to Mir Sadaruddin's case P L D 1976 Azad J & K I and Muhammad Aslam Bajwals case PLD 1974 Lah.545, to convince that in presence of special tribunal constituted under the constitution writ jurisdiction of the High Court could not be Invoked to redress the grievance of the aggrieved party. We do not dispute the rule laid down in those cases, but both the cases are distinguishable from the facts of the present cases. In those cases, the matters agitated before the learned Judges of High Court pertained to civil services. It was held that once the Service Tribunal as contemplated under section 47, subsection (1), clause (a) of the Interim Constitution Act as well as the Constitution of Pakistan were established, no other Court, including the High Court, was competent to review the matters. Here, we have already observed that the decisions of Registrar as well as the establishment of Special Tribunal are not protected by the provisions of clause (b) of subsection (1) of section 47 of the Constitution as the functions assigned to them have nothing to do with the matters relating to claims for tortuous acts of the Government or the Council. Therefore, these authorities 14 have no relevance to the proposition under consideration. In Muhammad Hanif's case decided by this Court, these decisions were found favourable but in that case the scope and true import of the provisions of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, was not examined. Therefore, that decision equally does not help the case of the respondents.
17. On reviewing the leading authorities of the superior Courts of Pakistan and the State, the pith and substance of the proposition is that when a statute under which a Special Tribunal or authority acts, provides alternative remedy in the shape of appeal, the aggrieved party may not be permitted to invoke writ jurisdiction of High Court without availing the alternative remedy, provided the remedy contemplated by the statute was expeditious, beneficial, effective and sufficient to redress the grievance of the party. In absence of this test, the aggrieved person, irrespective of presence of adequate remedy, shall be free to invoke the writ jurisdiction of High Court to seek redress of his grievance.
Next, the obvious question necessitating our attention is as to whether an appeal before Special Tribunal as provided under subsection (6) of section 5 of the ‑Act, is an adequate remedy or not. Subsection (6) provides that all decisions of Registrar under subsection (3) of section 5 are appealable before the Special Tribunal. A reading of the provision of subsection (6) reveals that no apparent limitations on the appellate jurisdiction of Special Tribunal against decisions of Registrar under subsection (3), are enforced. The‑ Special Tribunal is free to decide an appeal expeditiously, effectively and to the benefit of an aggrieved party without any difficulty, restrictions or hesitation. Therefore, apparently, the alternative remedy in the shape of appeal before Special Tribunal is quite adequate as contemplated in the aforesaid deliberations. Thus, in absence of any control or limitation on the appellate jurisdiction of the Special Tribunal, we are of the view that remedy by appeal is quite adequate and equitable.
M.B.A. /326/H.C.A. Order accordingly.
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