Alternate Dispute Resolution

THE DOCTRINE OF “ALTERNATIVE REMEDY” WITH REFERENCE TO WRIT JURISDICTION UNDER THE CONSTITUTION OFPAKISTAN, 1973

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,1973. Inthe light of relevant case law, the scope of the doctrine has been discussed in detail. The doctrine has been established not to deprive a person from justice but to give him a chance to exhaust the ordinary remedies. But this is not a static principle; it has its exceptions too.

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 Pakistanis the case of Mehboob Ali Malik[2] This case was heard by a Full Bench of five Judges, and the judgment was delivered by Mr. Justice Manzur Qadir. In regard to the principles, governing the grant of relief in cases where alternate remedy was available, criterion was laid down in paragraph 13 of the judgment appearing at page 581.

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 Lahorev. The  Sargodha‑Bhera Bus Service, Sargodha, etc.[8] the Supreme Court observed:

“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 thatthe 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.

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.

Well Recognized Adequate Alternate

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