The Doctrine of “Alternative Remedy” in Writ Jurisdiction under the Constitution of Pakistan, 1973

The doctrine of alternative remedy is crucial in the context of writ jurisdiction under the Constitution of the Islamic Republic of Pakistan, 1973. This doctrine mandates that individuals must first exhaust all ordinary remedies before seeking the intervention of High Courts. The principle ensures the efficacy of lower forums established for specific disputes and reduces the burden on higher courts.

Meaning and Distinction

The doctrine, as elucidated in Rizwan Ullah v. Registrar/President, Cooperative Societies, N.W.F.P. Peshawar, implies that an alternative remedy must be adequate, efficacious, expeditious, inexpensive, and effective. It is essential to differentiate between an alternative remedy and an adequate remedy. While alternative remedies are broadly available, they must be evaluated for adequacy based on their ability to provide the requisite relief in nature and extent.

Historical Context

The doctrine’s application was first significantly discussed in Mehboob Ali Malik’s case, where it was established that if the alternative remedy does not provide necessary relief, it is inadequate. Additionally, even if the relief is sufficient, the remedy’s adequacy must be further judged on speed, expense, and convenience.

Application of the Doctrine

The Constitution of Pakistan stipulates that writ jurisdiction can only be invoked if no alternative remedy is available to the aggrieved party. This principle was reinforced in The Tariq Transport Company Lahore v. The Sargodha-Bhera Bus Service, where the Supreme Court held that statutory remedies must be exhausted before seeking a writ, barring exceptional circumstances.

Exceptions to the Doctrine

Despite the general rule, there are notable exceptions where writ jurisdiction may be exercised even if alternative remedies exist:

1. Violation of Fundamental Rights: Writ jurisdiction cannot be denied on grounds of alternative remedies if fundamental rights are at stake.
2. Malafide or Unjust Orders: Orders that are arbitrary, without lawful authority, or based on malafide intent allow for writ petitions despite available remedies.
3. Inadequate or Illusory Remedies: Remedies that are inadequate, illusory, or excessively time-consuming justify the invocation of writ jurisdiction.
4. Lack or Abuse of Jurisdiction: Orders passed without jurisdiction or in abuse of jurisdiction warrant writ petitions.
5. Legal Questions: Cases involving significant questions of law or interpretation justify writ jurisdiction.

Well-Recognized Adequate Remedies

Certain remedies are recognized as adequate and typically bar writ jurisdiction:

1. Remedy of Suit: Ordinary legal action through a suit is preferred over a writ petition when the remedy sought is available under ordinary law.
2. Representation: Filing a representation, such as before the President in specific cases, is considered adequate.
3. Amendment of Pleadings: If the legal process allows for amending pleadings to meet the circumstance, it is deemed adequate.
4. Appeals: Both ordinary appeals and appeals before special authorities are generally seen as adequate remedies.
5. Ordinary Criminal Proceedings: Remedies under the Criminal Procedure Code, such as filing a direct complaint, are considered adequate.

Remedies Not Recognized as Adequate

Some remedies are not deemed adequate under specific circumstances:

1. Mere Revision: Availability of revision does not bar writ jurisdiction, particularly if the order is without jurisdiction.
2. Mere Review: Review is often insufficient to preclude writ jurisdiction, especially if it does not provide adequate relief.

The doctrine of alternative remedy is fundamental in maintaining the balance of justice within Pakistan’s legal system. It ensures that lower forums are utilized effectively while preserving the High Courts’ role for extraordinary situations. The discretion exercised by the Higher Courts in Pakistan reflects a judicious approach to uphold justice, considering the unique facts and circumstances of each case.

This balanced approach ensures that justice is not delayed and that the legal system functions efficiently, respecting the principle that alternative remedies must be both available and adequate to preclude the invocation of writ jurisdiction.

Below are some questions and answers on the doctrine of “Alternative Remedy” with reference to writ jurisdiction under the Constitution of Pakistan, 1973.

1. Q: What is the primary purpose of the doctrine of alternative remedy in relation to writ jurisdiction under the Constitution of Pakistan, 1973? A: The primary purpose is to ensure that justice is upheld by requiring individuals to exhaust ordinary remedies before seeking writ jurisdiction, thereby reducing the number of petitions filed directly in the High Courts.
2. Q: How does the doctrine of alternative remedy maintain the balance in the legal system? A: It maintains balance by ensuring that individuals first utilise lower forums designed to handle specific disputes, preserving the purpose of these forums and maintaining an efficient judicial process.
3. Q: What are the characteristics of an alternative remedy as defined in Rizwan Ullah v. Registrar/President, Cooperative Societies, N.W.F.P. Peshawar? A: An alternative remedy must be adequate, efficacious, expeditious, inexpensive, speedy, prompt, appropriate, exclusive, convenient, beneficial, and effective.
4. Q: What is the distinction between alternative remedy and adequate remedy? A: Alternative remedy refers to any available remedy, while adequate remedy specifically means a remedy sufficient to achieve the requisite relief in nature and extent.
5. Q: Under what circumstances can the writ jurisdiction be invoked despite the existence of an alternative remedy? A: Writ jurisdiction can be invoked if the alternative remedy is inadequate, illusory, or if there are exceptional circumstances like violation of fundamental rights or lack of jurisdiction.
6. Q: What was the significant contribution of Mehboob Ali Malik’s case to the doctrine of alternative remedy? A: The case laid down the criterion for granting relief when an alternative remedy is available, emphasizing that the remedy must provide the requisite relief in terms of nature and extent.
7. Q: According to the Constitution of Pakistan, 1973, when can writ jurisdiction not be invoked? A: Writ jurisdiction cannot be invoked if an alternative and adequate remedy is available under the relevant law.
8. Q: What did the Supreme Court observe in The Tariq Transport Company Lahore v. The Sargodha-Bhera Bus Service regarding statutory remedies? A: The Court observed that parties must first avail themselves of the remedies provided by statute before applying for a writ, except in very exceptional circumstances.
9. Q: How does the concept of discretion play into the writ jurisdiction? A: Writ jurisdiction is entirely discretionary and must be exercised with great care, particularly when disputed facts or procedural laws are involved.
10. Q: Why is the purpose of writ jurisdiction not to create a competing remedy? A: It is intended as an additional remedy in the absence of an alternative adequate remedy, not to replace ordinary legal actions.
11. Q: When can writ jurisdiction be exercised despite an available alternative remedy? A: It can be exercised when the alternative remedy is not adequate, effective, or meaningful, or in cases involving fundamental rights, lack of jurisdiction, or orders passed with mala fide intent.
12. Q: What principle was established in A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani & another regarding the writ petition? A: The principle that even if an alternative forum is approached, the Court may still entertain a writ petition based on the facts and circumstances of the case.
13. Q: What are the conditions under which an alternative remedy does not bar writ jurisdiction? A: Conditions include violation of fundamental rights, orders passed arbitrarily or without lawful authority, mala fide orders, perverse or unjust orders, and situations where the alternative remedy is inadequate or illusory.
14. Q: How does the violation of fundamental rights affect the writ jurisdiction? A: Writ jurisdiction cannot be refused on the ground of alternative remedy if there is a violation of fundamental rights.
15. Q: What constitutes an arbitrary order that allows for writ jurisdiction despite alternative remedies? A: Orders passed without lawful authority, based on mala fide intent, or that are perverse, unjust, or oppressive.
16. Q: How does the adequacy of the alternative remedy impact the writ jurisdiction? A: The High Court must judge the adequacy of the alternative remedy; if it is inadequate, illusory, or ineffective, writ jurisdiction may be invoked.
17. Q: What did Vincent and others v. Karachi Development Authority establish about alternative remedies? A: The case established that mere availability of an appeal does not divest the High Court of jurisdiction if the circumstances justify the constitutional petition.
18. Q: What role does the violation of principles of natural justice play in writ jurisdiction? A: Violation of principles of natural justice justifies the invocation of writ jurisdiction even if alternative remedies exist.
19. Q: What is the impact of an illegitimate order on writ jurisdiction? A: An illegitimate order, such as one based on legal infirmities apparent on the face of the record, allows the High Court to exercise writ jurisdiction despite alternative remedies.
20. Q: How does the involvement of a question of law influence the decision to entertain a writ petition? A: If the resolution of the petition depends on a question of law or interpretation of law, writ jurisdiction may be maintained even if alternative remedies have not been exhausted.
21. Q: What is the significance of the case of Ghazi Fabrics International Limited v. Water and Power Development Authority in relation to revision? A: It highlights that the mere availability of a revision does not necessarily bar writ jurisdiction if the impugned order is without jurisdiction or violates the law.
22. Q: What is the impact of public policy on the rule regarding alternative remedies? A: Public policy motivates the rule to avoid parallel jurisdiction in another Court, ensuring that writ petitions are not entertained if the petitioner has approached an alternative forum.
23. Q: How does economic position influence the determination of an adequate remedy? A: The economic position of the petitioner should be considered; if they cannot afford the expenses of preliminary proceedings, the alternative remedy may be deemed inadequate.
24. Q: What did the case of Digital World Pakistan (Pvt.) Ltd. v. Samsung Gulf Electronics FZE determine about damages as a remedy? A: It determined that damages could be considered an inadequate remedy, justifying writ jurisdiction.
25. Q: How does the remedy of review factor into the adequacy of alternative remedies? A: In Mian Ayaz Anwar v. Federation of Pakistan, review was considered an inadequate remedy, allowing for the writ jurisdiction to be invoked.
26. Q: What is the role of statutory remedies in the context of writ jurisdiction? A: Statutory remedies are intended to be exhausted before invoking writ jurisdiction unless they are ill-suited or inadequate for extraordinary situations.
27. Q: How does the High Court exercise discretion in cases of lack or abuse of jurisdiction? A: The High Court entertains constitutional petitions in cases of lack or abuse of jurisdiction, even if an alternative remedy exists.
28. Q: What did the case of Mehboob Ali Malik contribute to the understanding of the doctrine of alternative remedy? A: It provided criteria for granting relief when an alternative remedy is available, focusing on the adequacy of the remedy in terms of nature, extent, speed, expense, and convenience.
29. Q: What is the significance of the case of The Tariq Transport Company Lahore v. The Sargodha-Bhera Bus Service in the context of writ jurisdiction? A: The case emphasized the principle that parties must first avail themselves of statutory remedies before seeking writ jurisdiction, except in exceptional circumstances.
30. Q: How does the discretionary nature of writ jurisdiction impact its application? A: The discretionary nature means that writ jurisdiction is exercised with great care and is not meant to address ordinary legal actions that have alternative remedies.
31. Q: What factors contribute to the inadequacy of an alternative remedy? A: Factors include the remedy being illusory, meaningless, time-consuming, involving delay, or being less convenient and effective.
32. Q: How does the presence of an appealable order influence the decision to grant writ jurisdiction? A: The presence of an appealable order typically means that writ jurisdiction will not be granted unless the appeal is inadequate or ill-suited to address the issue at hand.
33. Q: What is the impact of an order passed without jurisdiction on writ jurisdiction? A: Orders passed without jurisdiction or unlawfully allow for the invocation of writ jurisdiction under Article 199 of the Constitution.
34. Q: What role do principles of natural justice play in determining the adequacy of alternative remedies? A: If an action violates principles of natural justice, the writ jurisdiction may be invoked regardless of available alternative remedies.
35. Q: How does the existence of another remedy impact the High Court’s jurisdiction to issue a writ? A: The existence of another remedy does not affect the High Court’s jurisdiction to issue a writ, but it is a factor considered in granting writs.
36. Q: What did the case of A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani establish about writ petitions? A: The case established that the Court may still entertain a writ petition based on the facts and circumstances, even if an alternative forum has been approached.
37. Q: How does the adequacy of a remedy affect the writ jurisdiction in cases involving fundamental rights? A: Violation of fundamental rights justifies the invocation of writ jurisdiction even if an alternative remedy is available.
38. Q: What is the role of economic considerations in determining the adequacy of an alternative remedy? A: Economic considerations, such as the petitioner’s inability to afford preliminary proceedings, can render an alternative remedy inadequate.
39. Q: What impact does the adequacy of alternative remedies have on public policy? A: The adequacy of alternative remedies ensures that the judicial process remains efficient and that statutory procedures are not circumvented, aligning with public policy.
40. Q: How does the discretionary nature of writ jurisdiction impact its exercise in the presence of alternative remedies? A: The discretionary nature means that writ jurisdiction is exercised with caution and only in extraordinary situations where alternative remedies are inadequate.
41. Q: What role does the remedy of review play in the context of writ jurisdiction? A: Review is often considered an inadequate remedy, justifying the invocation of writ jurisdiction.
42. Q: How does the presence of an illusory remedy impact the decision to grant writ jurisdiction? A: An illusory remedy, being ineffective and meaningless, justifies the invocation of writ jurisdiction despite its availability.
43. Q: What did the case of Digital World Pakistan (Pvt.) Ltd. v. Samsung Gulf Electronics FZE establish about alternative remedies? A: It established that damages could be considered an inadequate remedy, allowing for the invocation of writ jurisdiction.
44. Q: How does the lack of jurisdiction of a lower forum influence the High Court’s decision to grant writ jurisdiction? A: Lack of jurisdiction of a lower forum justifies the High Court’s decision to grant writ jurisdiction, as the alternative remedy would be inadequate.
45. Q: What is the significance of the case of Mehboob Ali Malik in relation to the doctrine of alternative remedy? A: The case provided important criteria for determining the adequacy of an alternative remedy, focusing on the nature, extent, speed, expense, and convenience of the remedy.
46. Q: How does the principle of “justice delayed, justice denied” impact the decision to grant writ jurisdiction? A: If the alternative remedy causes undue delay, it may be considered inadequate, justifying the invocation of writ jurisdiction to ensure timely justice.
47. Q: What did the case of The Tariq Transport Company Lahore v. The Sargodha-Bhera Bus Service contribute to the understanding of statutory remedies? A: The case emphasized the need for parties to first exhaust statutory remedies before seeking writ jurisdiction, except in exceptional circumstances.
48. Q: How does the discretionary nature of writ jurisdiction influence its application in cases involving fundamental rights? A: The discretionary nature allows the High Court to entertain writ petitions in cases involving fundamental rights, even if alternative remedies exist.
49. Q: What is the impact of a perverse order on the decision to grant writ jurisdiction? A: A perverse order, being unjust and oppressive, justifies the invocation of writ jurisdiction despite the availability of alternative remedies.

50. Q: How does the adequacy of alternative remedies impact the High Court’s exercise of writ jurisdiction? A: The High Court must carefully consider the adequacy of alternative remedies; if found inadequate, it justifies the exercise of writ jurisdiction to ensure justice.