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Writ Petition No. 52 of 1963 (Reference answered on 5th September 1963).
Art. 98‑Scope‑Juris diction under Art. 98 enlarged in some cases and curtailed in others in comparison with earlier writ jurisdiction.
Art. 98‑"No other adequate remedy"‑Scope and extent of adequacy‑Tests for determining.
S. M. Zafar and Zainal Abadin for Petitioner.
M. B. Zaman, A. A. G., with Hafiz‑ur‑Rehman for Respondents.
K. E. Chauhan, Nasim Hassan Shah, Abdul Haq Sheikh, Dilawar Mahmood and Fazal Mahmood: Amicus Curiae.
Dates of hearing: 25th, 26th, 27th, 28th and 29th March and 1st April 1963.
The petitioner is an employee of the Municipal Corporation of Lahore. By an order of the Provincial Government, the particular post which he held has been abolished. The Municipal Corporation has made certain other arrangements for his continuance in service with which he is not satisfied because they involve a reduction in his pay, and also, according to him, a reduction in his rank. He challenges the competence of the authorities to alter his terms and conditions of service in the manner in which they ‑have been altered in consequence of the various orders passed in relation to him. He has come to this Court in an application under Article 98 of the Constitution, asking that the orders in question, in so far as they have affected him adversely, be declared invalid and of no legal effect.
2. When this matter came on for hearing as a motion before a Division Bench, it was conceded by the learned counsel for the petitioner that a civil suit asking for the same relief was com petent, but that it would not give his client "adequate relief" in so far as his client needed the relief forthwith. If he got the relief after a long delay‑as, it was said, would be inevitable if a civil suit was brought‑‑the relief' would not be adequate'. Since Article 98 of the Constitution provides that this Court may exercise the jurisdiction under that Article if it is satisfied that there is no other adequate remedy, the question whether it was open to this Court to entertain this petition, was referred to this Full Bench in the following terms:‑
"If there is another remedy provided by law which would, in the course of time, give adequate relief, but that relief would not be available when the petitioner needs it most, is that remedy to be regarded as an adequate remedy' or not, within the meaning of Article 98 "
3. It appeared from the report received from the Municipal Corporation that certain questions of fact were likely to be contested in the course of the hearing of this petition. The learned counsel for the petitioner contended that he could base his relief on the undisputed documents and did not need to call any witness to give oral evidence in the case. A further question was, therefore, formulated as follows:‑
"Where disputed questions of fact need to be resolved before relief can be given, is it appropriate to proceed under the power given to this Court by Article 98, and if it is not appropriate so to proceed, does it make any difference if the dispute is confined to the interpretation of documents "
4. The relevant portion of Article 98 (omitting the portions which are riot necessary for the purposes of the points under discussion) may be reproduced:‑
"(2) . . . . . a High Court . . . . . may, if it is satisfied that no other adequate remedy is provided by law‑
. . . . . make an order‑
(i) directing . . (a public functionary) . . . . . to . refrain 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 proceeding taken by .
(a public functionary) . . . . has been done or taken without lawful authority, and is of no legal effect."
5. To enjoy the protection of law, and to be treated in accordance with law, is declared by Article 2 (1) of the constitution to be the inalienable right of an individual in Pakistan. By sub‑article (2) of that Article, it is further provided that, in particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law, and that no person shall be prevented from, or be hindered in doing that which is not prohibited by law, or compelled to do that which the law does not require him to do. In so far as action contrary to Article 2 may be taken by any public functionary, (or in respect of the personal liberty of the individual, by any other person as well) a means of correction has been provided by Article 98. The only limitation placed on the exercise of this power is the existence, of another "adequate remedy". The intention seems f o be that if another remedy is provided by law, and that remedy is "adequate", that remedy cannot be bye‑passed or ignored. On the other hand, if no remedy is provided by law, or if the remedy provided by law is not "adequate", it seems to be intended that no violation of Article 2 by a public functionary (or in the case of the liberty of the individual, by any other person as well) should be suffered to remain uncorrected, to remain without being as fully or as com pletely redressed as is possible in the circumstances of the case.
6. Prior to the promulgation of the present Constitution, this Court exercised jurisdiction (popularly referred to as the writ jurisdiction) that was conferred on it by an earlier constitutional provision, to issue, in addition to other orders and directions, writs in the nature of mandamus, prohibition, certiorari and quo‑ warranto. The scope of those writs was not defined in the Constitution, but had to be gathered from the text‑books on the subject, and from cases decided in England and other countries where writs under those names are issued. The present Constitution by its 98th Article, appears to have made an attempt to reduce into self‑contained propositions, that which was regarded as the substance of those four writs. In the course of their evolution some distinguishing incidents had come to attach separately to some of those writs. Those distinguishing features, it seems, have not been incorporated in Article 98, apparently because they were not regarded as being of the essence of the remedy. The conditions of exercise of jurisdiction in relation to the various writs have thus become more uniform. As a consequence, in some cases the field covered by the earlier writ has become somewhat enlarged; and in others it has become somewhat curtailed. The writ of certiorari, for example, was available originally in respect of judicial or quasi judicial determinations only. It was not available in respect of non -judicial determinations. Article 98 has not preserved any such distinction, with the result that all orders passed in excess of lawful authority, whether by judicial, quasi‑judicial or non judicial functionaries, are equally liable to be declared as being of no legal effect. On the other: hand, the requirement that this jurisdiction should be exercised only if there is no other adequate remedy, has become equally applicable to all the cases falling under Article 98. In the English Law, apparently, this require ment was insisted upon rigorously only in relation to mandamus. In relation to certiorari, it was frequently relaxed. Article 98, however, is not susceptible to any discrimination between mandamus and certiorari on this point.
7. Many cases decided in England and other countries, as well as in Pakistan, were cited at the Bar during the hearing of this case. Since those cases are all in relation to provisions other than Article 98, or in relation to principles which, though they might form the basis of Article 98, arc not expressly enacted in that Article, none of them could be of any direct assistance in interpreting Article 98. Some of them, however, have been of great indirect assistance in formulating its scope.
8. The word "adequate" signifies a concept of a relative nature. It can be comprehended only as a state of correspondence between one thing and another. A thing can be "adequate", or "not adequate", to something else, as for example
"not adequate to the expectations,
is language adequate to describe it",; or
adequate to the disease".
When something is described as being adequate's without indicating what it is adequate to, the context must supply that which has been left unstated. The first question in construing the meaning of "adequate remedy", therefore, is . . . . . "to what has the remedy to be adequate" In the context, we think, the answer must be that the remedy has to be adequate to the requisite relief, i.e., the removal, or lessening of the cause of distress or anxiety; the deliverance from that which was burden some. It is evident that the trouble, expense and delay in getting what is wanted are all as much ingredients of the sum total of that which can be described as "relief" as the substance of that which is wanted. In the words of a well‑known Persian proverb‑
"While the antidote is being brought from Iraq, (which, in the context is a metaphor for a distant land), the victim of snake‑bite will be dead".
If a person is suffering with pain that is continuing, and two remedies are available‑one that will remove the pain after a few days of treatment and the other that will remove it after a few weeks of treatment, the second remedy is not adequate' to remove that portion of the continuing pain which must be suffered before that remedy takes effect, and which could have been avoided if the first remedy were resorted to. Again, if a remedy is available on conditions, which are next to impossible, the remedy would not be adequate to the relief. Taken in this light, the adequacy of the remedy must be judged in relation to three separate considerations‑
(1) The nature and extent of the relief;
(2) the point of time when that, relief would be available; and
(3) the conditions on which that relief would be available particularly the conditions relating to the expense and incon venience involved in obtaining it.
9. As to the first of these three considerations‑namely the nature and the extent of the relief, there is not much difficulty in ascertaining whether from the stand‑point of this consideration another remedy is or is not adequate to give the required relief, if the relief that may be obtained under the other remedy is of a different nature, or of a lesser magnitude than the relief that in the circumstances of the case, ought to be given, that remedy is not adequate to the required relief.
10. As to the second consideration‑namely the point of time when the relief will be available, an estimate must be made of the speed with which that relief will be available under the other remedy, and that estimate must be compared with the speed with which that relief could be made available by this Court under Article 98. In doing so, however, it must be borne in mind that this Court must treat all alike. If it did not, it would violate the whole basis of equality before law. If therefore, it is willing to afford a particular relief in one case, it must be able to do the same in all cases belonging to the same category. In other words, in making the comparison, account must not be taken of factors which would themselves undergo a change, if they were taken into account in every case of the kind under consideration. If for example, the arrears of old cases accumulated in the Civil Courts at any given time, are such as to make it impossible for a new suit to be completed in, say, less than five years, and the state of accumulated arrears in this Court is such that a petition under Article 98 might be determined within two or three months, the remedy under Article 98 would obviously be the speedier remedy today; and by comparison with it the remedy by way of a civil suit would be inadequate' in today's conditions. But if this procedure were adopted in one case, it would have to be adopted in all other similar cases. The High Court would then have to do the very work which the Civil Judges are being delayed over today, and would probably take an equally long time in doing it. In fact, the High Court might take longer, because there are many more Civil Judges than Judges of the High Court. In other words, the remedy by way of a petition under Article 98, would cease to have, over a civil suit, the very advantage that was being sought‑namely that of speed‑if it were used as a substitute for it. Again, if for example, the forum in which the other remedy is to be sought is manned at any given time, by an inefficient officer or an inefficient team of officers, and it is felt on that ground that proper relief cannot be speedily had there while those conditions prevail, the further question must be asked, whether, if all the cases pertaining to that other forum were to be dealt with by this Court in place of that forum, would this Court still be able to retain the advantage in efficiency over the other forum which it believes itself to have today
11. If, therefore, relief of the requisite kind and to the requisite extent is available under another remedy, and the adequacy of the other remedy is to be determined with reference to a comparison of the speed with which the relief would be available under that remedy or under Article 98, the comparison must be based on a consideration of an intrinsic advantage of speed, if any, that this Court may have in respect of the kind of determination that is to be made in a particular category of cases. If for example the decision depends on a point of law alone, which in any case will have to be decided by this Court finally, will it not be speedier, if this Court did straight way what it anyhow would be called upon to do later On the other hand, if the decision depends on a careful determination of the circum stances of a transaction, the fact that in today's conditions the High Court may be able to spare the requisite time for one case, and dispose of it more quickly than it would be disposed of if it were instituted as a civil suit, ought not to be regarded as a reason for thinking that the remedy in the High Court is speedier, because if the High Court spared the time for all cases of the same kind, the conditions that made it possible for it to spare the time in one case, would be destroyed in the very process o1 doing so in all cases.
12. In respect of the third consideration‑--namely, the conditions on which the relief is available, particularly the conditions relating to expense and inconvenience----if more money is to be spent by way of court‑fee or deposit other expenses in pursuing the alternative remedy, than in pursuing the remedy under Article 98; or greater incon venience is to be borne in relation to that remedy, than in relation to the remedy under Article 98, the more expensive or inconvenient mode would obviously be less attractive as a remedy than proceeding under Article 98. In this case, as in the last, it seems to us that in making the comparison, incidents which have come to attach to the alternative remedy, for reasons of general public policy, or in order to ensure that the function of giving relief is satisfactorily performed, ought not to be taken into account, because if in today's conditions those incidents appear as impediments attached to the alternative remedy, they would re‑appear as the same impediments attaching to the remedy under Article 98, if the remedy under that Article were used as a substitute for the other remedy. If, for example, the fact that petitions under Article 98 are cheaper than civil suits is to be taken into account as a factor affecting the comparison, there is no reason why any litigant should be compelled to incur the greater expenditure of proceeding by way of a civil suit. Similarly if the fact that, to have an appeal heard by a special forum specifically created to hear appeals of that kind, as appellant is required to make a deposit, is taken into account as a factor affecting the comparison between the "conveniences" of the specific special remedy and the remedy under Article 98, there is no reason why anyone should be compelled to go to the special forum. It could not be that the intention of the law is to mAke it imperative that if a particular relief is sought from a tribunal designed specially to give that relief, a certain amount of court‑fee must be paid, or a specified deposit must be made; but if the same relief is sought from the High Court the court‑fee or deposit may be dispensed with. For, if the State is willing to do without the court‑fee or the deposit in case the matter is brought to the High Court, why should it not be willing to do the same when it is taken to the special forum
The comparison must be based on factors which intrinsically make the alternative remedy loss convenient'. If for example a point of law were being raised that a certain department had no authority over the person affected, and before he could agitate that point in the departmental forum a deposit were required to be made by him, the case might well be one in which the require ment of having to deposit the money may rob the departmental remedy of its adequacy, for the person aggrieved, in so far as the insistence on the deposit would amount to compelling him to submit to the very jurisdiction to which he claims he is not subject. This illustration, however, is to be distinguished from the case where the grievance is that the department or any of its functionaries, is acting illegally, or with material irregularity, in the exercise of a jurisdiction which they possess. In that eventuality, if a departmental forum of correction is available, it would not be justifiable to bye‑pass it on the ground that some fee is payable or some deposit is obligatory before the depart mental remedy can be availed of.
Nor would it be right to take into account the paying capacities of individual litigants. If that were done, it would mean that while for one individual relief under Article 98 might be available in relation, to a given grievance, for another, in relation to the identical grievance, it might not be available.
13. The correct position therefore, seems to be‑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, requisite relief, the alternative remedy is not an "other adequate, B 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 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 not be taken into account which would them selves 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 generalised 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 atrophy, 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 substance, 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 actor 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 "Law of Extraordinary Legal Remedies" by Ferris.)
14. 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 98 which would C release this Court, in such a case, from that 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, anal 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 consider ation for not acting under Article 98.
15. The answer to the second question may, therefore, be formulated thus:‑
When the Court, after applying the tests mentioned in para graph 13 comes to the conclusion that it ought to exercise its jurisdiction under Article 98, it will not hesitate to take evidence, whether oral or documentary;
but in deciding whether it ought to exercise its jurisdiction under Article 98, the consideration that it will have to take evidence will play an important, and almost decisive role, in cases where the relief of the requisite nature and extent can also be had in another forum.
This case will now go back to the Division Bench for disposal, in accordance with the answers given to the two questions that were referred to this Full Bench.
(Announced by Bashiruddin Ahmad, J.)
A.H. Reference answered.
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