Muhammad Gul Vs Govt. of KPK

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

W.P No. 558-B of 2018.

Muhammad Gul

VS

Govt: of Khyber Pakhtunkhwa etc:

JUDGEMENT

Date of hearing __________04/6/2018__________ Appellant-Petitioner: By Syed Asfandiyar Ali Shah, Advocate.

Respondent ________________________________ SHAKEEL AHMAD, J.--- Through this common judgment, we intend to dispose of the instant Writ Petition No. 558-B/2018 and Writ Petition No. 559-B/2018 (Asmatullah Vs Provl: Govt etc) & Writ Petition No. 560- B/2018 (Irfan Khan Vs Provl: Govt: etc), as common question of law and facts are involved therein.

*Imranullah* (S.B) Justice Abdul Shakoor and Justice Shakeel Ahmad

2.Brief facts leading to the filing of the instant petition and the connected petitions are that the petitioners are running the business of Bakery and Sweets in Bannu city and adjacent to Bannu City. They are well known businessmen, on 10.4.2018, respondent No.5 along-with other officials entered into the premises of the Bakeries of the petitioners, and after checking various food items, imposed fine of Rs.1,00,000/-(one lac), Rs.50,000/-(Fifty thousand) and Rs. 50,000/-(Fifty thousand) vide fine Form dated 10.4.18, 18.4.2018 and 25.4.2018, respectively. Not contented with the same, the petitioners have assailed the imposition of fine through separate constitutional petitions.

3.It is mainly argued by the learned counsel for petitioners that impugned act of the respondent No.5 whereby fine was imposed upon the petitioners are illegal, without lawful authority, without jurisdiction and violative of Section-17 of the Khyber Pakahtunkhwa Food Safety Authority Act, 2014. However, on the question as to whether the petitioners have availed the alternate remedy by *Imranullah* (S.B) Justice Abdul Shakoor and Justice Shakeel Ahmad

filing appeal before the Chief Secretary as provided under Sub Section(2) of Section. 16 of ibid Act, his answer was in negative.

4.We have heard the learned counsel for the petitioners in motion and perused the record with his able assistance.

5.It is now settled that when the question of maintainability, locus-standi or jurisdiction is involved, as a rule of propriety such question are decided first. Therefore, we propose to examine the question of maintainability of the petitions on the touch stone of alternate and efficacious remedy provided to the petitioners in term of Sub Section. 2 of Section-16 of the Khyber Pakahtunkhwa Food Safety Authority Act 2014.

6.No doubt bar on filing Constitutional petition without availing alternate remedy can be ignored, in the cases, where there is jurisdictional error/defect, lack of authority or if the impugned action is based on malafide or in flagrant disregard of law and principles of natural justice *Imranullah* (S.B) Justice Abdul Shakoor and Justice Shakeel Ahmad

and the alternate remedy is not efficacious depending on facts and circumstances of each case, extra-ordinary jurisdiction can be invoked.

7.In order to see as to whether in the instant case alternate remedy is efficacious or other-wise it will be advantageous to first reproduce and examine Sub Section. 2 of Section.16 of the Khyber Pakahtunkhwa Food Safety Authority Act 2014, which provides alternate remedy:-

16.Jurisdiction of the [Food Safety and Halal Food Authority].---(1) On information received from a Food Safety Officer or any other person or any person involved in food business, the [Food Safety and Halal Food Authority] may, for reasons to be recorded in writing,--

(a)-----------

(b)-----------

(c)-----------

(d)-----------

(2)If the [Food Safety and Halal Food Authority] cancels the licence or imposes fine on a food operator, the food operator may, within 15 days of the communication of the order, prefer an *Imranullah* (S.B) Justice Abdul Shakoor and Justice Shakeel Ahmad

appeal against such order to the Chief Secretary to Government.

8.A plane reading of the provision of Sub Section. 2 of Section. 16 as reproduced above, it appears that to address the grievance of the petitioner elaborate mechanism has been provided whereby the petitioners are required to file appeal before the Chief Secretary of Government of Khyber Pakhtunkhwa against the imposition of the fine within 15 days of the communication of such order.

9.High Court before exercising its extra ordinary jurisdiction under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, must be satisfied about the non- availability or inefficacy of alternate remedy provided under the law, and if the High Court is satisfied or comes to the conclusion that the alternate remedy is expedient, effective then the High Court would be reluctant to exercise writ jurisdiction which is not meant to by-pass such authority or to render such hierarchy redundant and superfluous. The Honourable Apex Court in number of consistent judgments *Imranullah* (S.B) Justice Abdul Shakoor and Justice Shakeel Ahmad

has deprecated the tendency to invoke writ jurisdiction by passing remedy provided under relevant statute. In this behalf reference may be made on the cases reported as Khalid Mehmood V Collector of Customs (1999 SCMR 1881), Syed Match Company Ltd: V Authority under payment of Wages Act (2003 SCMR 147) Habib Ahmad V Income Tax Officer (1972 SCMR 556) and Mehboob Ali V Mubeena Khatun (PLD 1997 Karachi 558).

10.In these cases, an alternate remedy by way of appeal under Sub Section. 2 of Section.16 of the Khyber Pakahtunkhwa Food Safety Authority Act 2014, is available to the petitioners instead of exhausting alternate remedy they filed the constitutional petitions. It was incumbent upon the petitioners to have availed alternate remedy, as discussed above, before approaching High Court for redressal of their grievances by invoking Constitutional jurisdiction under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973. Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, was examined by the *Imranullah* (S.B) Justice Abdul Shakoor and Justice Shakeel Ahmad

august Supreme Court of Pakistan in the case reported as (PLD 1997 SC 102) at Page-119 and observed as follows:- "Article-199 of the Constitution provides that the same cannot be invoked, if alternate remedy is available to the aggrieved party under the relevant law.

In Abdul Rehman’s case (PLD 1987 SC 21) it was held that “It could be exercised only on proof of non-availability of alternate remedy. In Allah Bux case (1987 SCMR 810) it was held as under:- "It is to be noticed that the petitioners had remedy before the Board of Revenue, but they did not avail it within the prescribed time. This by itself was sufficient for dismissal of the Constitutional Petition filed by them in the High Court."

11.In view of the hereinabove facts and the dictum laid-down by the Superior Courts of Pakistan in the cases cited above, we are of the view that the petitioners have not been able to show us any reasonable cause to abandon and by-pass the remedy as provided Khyber Pakahtunkhwa Food Safety Authority Act 2014, nor the learned counsel has been able to point-out any jurisdictional error or violation of any legal provisions by the respondents which *Imranullah* (S.B) Justice Abdul Shakoor and Justice Shakeel Ahmad

can be interfered with by this Court in its extra-ordinary constitutional jurisdiction.

12.For what has been discussed above, these writ petitions being not maintainable are dismissed in LIMINE.

However, the petitioners shall be at liberty to file appeal before the competent authority as provided under Section 16(2) of the Khyber Pakahtunkhwa Food Safety Authority Act 2014.

Announced.

JUDGE

JUDGE

*Imranullah* (S.B) Justice Abdul Shakoor and Justice Shakeel Ahmad