PLJ 2018 Quetta 75 (DB)
Present : MRS. SYEDA TAHIRA SAFDAR AND ZAHEER -UD-DIN KAKAR , JJ.
JUMA GUL --Petitioner
versus
GOVERNMENT OF PAKISTAN MODEL CUSTOMS COLLECTORATE through Collector
Customs House, Quetta and others --Respondents
C.P. No. 132 of 2017, decided on 9.10.2017.
Customs Act, 1969 (IV of 1969) --
----Ss. 2(s), 16, 171 --Imports and Exports Control Act, 1950, S. 3(1) --Constitution of Pakistan,
1973, Art. 199--Constitutional Petition --Smuggling of foreign fertilizer --Issuanc e of show -cause
notice --Registration of case --Refund of auctioned amount --Alternate remedy --Question of --
Whether an aggrieved person, who resorts to constitutional jurisdiction of this Court, has or has
not any other adequate remedy available to him under law --Extraordinary jurisdiction --
Maintainability --Jurisdiction conferred on this Court by Article 199 of Constitution is an
extraordinary jurisdiction, which can be invoked only to meet extraordinary situations --This
jurisdiction is never meant to be treated as an additional or as “another” remedy provided by law -
-It was essentially for this reason that Article 199 of Constitution specifically provide it that this
Court shall have jurisdiction under said provision of Constitution only when law from which a
matter emanated did not provide any other adequate remedy to cater for problem in issue --Where
it was open to an aggrieved person to move another forum or Tribunal for his remedy in manner prescribed in a statute, a High Court avoid to assume jurisdiction under Article 199 of
Constitution and permit machinery provided in a statute to be bypassed--Jurisdiction available
under Article is discretionary in nature, thus, to be exercised in exceptional circumstances, when
that order questioned without authority, without jurisdiction or functionary acted with mala fide
or in unjust manner --In view of availability of alternate remedy, petitioner cannot be allowed to
ventilate his grievances through constitutional petition by passing competent forum as per
Customs Ac t--Further, assertions of petitioner revolve around factual dispute, truthfulness or
otherwise of which cannot be determined without inquiry and record of evidence and this Court
is not permissible in Constitutional jurisdiction to hear cases where actual controversies are
involved--Petition dismissed. [Pp. 77 & 78] A, B & C
Mr. Zakria Khan Nasar, Advocate for Petitioner.
Syed Ikhlaq Shah, Asstt. Attorney General for State.
Date of hearing: 13.9.2017.
J
UDGMENT
Zaheer -ud-Din Kakar, J.--The petitioner file d the instant petition with the following prayer:
“that confiscation/seizure and proceedings by the respondents may kindly be declared as
unlawful, subsequently, all proceedings by the respondents along with auction of DP fertilizers may kindly be quashed and respondents be directed to refund the auction amount of the fertilizers amount 18,80,000 be ordered to be paid/refunded to the petitioner.”
2. Precisely stated facts of the case are that in pursuance of credible information received by the Collector C ustoms which was communicated to the Deputy Collector (Preventive), Quetta, that
foreign origin Fertilizer would be smuggled to Afghanistan. Accordingly, on 13.12.2016 at about 0900 hours, the Customs staff along with FC personnel seized 1820 bags of DAP F ertilizer of
Australia origin from the area of Killa Saifullah/Muslim Bagh. The Customs Mobile Squad, Quetta took possession of the said goods and seized the same for violation of Section 2(s) and 16 of the Customs Act, 1969 read with sub- section (1) of Se ction 3 of Imports and Exports
(Control) Act, 1950. Notice under Section 171 of the Customs Act, 1969 was issued to the petitioner and a copy thereof was displayed on the Notice Board. A seizure case Bearing No. 713-Cus/Seize/MS/2016 dated 13.12.2016 was r egistered, which was adjudicated by the
adjudicating authority, vide Order- in-Original No. 330/2017 dated 24.2.2017 by confiscating the
Fertilizer. The counsel for the petitioner appeared before the adjudicating authority for the seized goods. Relevant par a of the Order -in-Original is reproduced herein below:
“I have gone through the record of the case. The Advocate failed to produce any bona fide excuse/legal import document and receipt of application for release of goods against
payment of duty/taxes clearly establishes smuggled status of the goods. The case of the seizing agency thus stands established. Consequently, the goods seized in this case are
confiscated outright in terms of clauses (8) and (89) of Section 156(1) the Customs Act, 1969 for violation of Section 2(s) read with SRO 566(1)/2005 dated 6.6.2005 and 16 of the Customs Act, 1969. Further read with sub- section (1) of Section 3 of Imports and
Exports (Control) Act, 1950.
3. On 23.8.2017, it was observed that the matter pertains to seizing of goods by the Customs
Authorities. Learned counsel for the petitioner was directed to address the maintainability of the instant petition as the remedy provided in the relevant law i.e. The Customs Act, 1969 has not been availed.
4. Learned counsel for the petitioner has mostly relied upon the grounds mentioned in the
petition.
5. We have heard learned counsel for the petitioner and have gone through the available record. Before proceeding further to the question of maintainability of the petition, it is n ecessary to
mention here that the jurisdiction conferred on this Court by Article 199 of the Constitution is an extraordinary jurisdiction, which can be invoked only to meet extraordinary situations. This jurisdiction is never meant to be treated as an additional or as “another” remedy provided by law. It was essentially for this reason that Article 199 of the Constitution specifically provide it that this Court shall have jurisdiction under the said provision of the Constitution only when the law from whic h a matter emanated did not provide any other adequate remedy to cater for the
problem in issue. Therefore, the prime question in every case of Article 199 of the Constitution
as also in the present case is whether an aggrieved person, who resorts to the C onstitutional
jurisdiction of this Court, has or has not any other adequate remedy available to him under the law. Where it was open to an aggrieved person to move another forum or Tribunal for his remedy in the manner prescribed in a statute, a High Court avoid to assume jurisdiction under
Article 199 of the Constitution and permit the machinery provided in a statute to be bypassed.
The jurisdiction available under the Article is discretionary in nature, thus, to be exercised in
exceptional circumstances, when that order questioned without authority, without jurisdiction or the functionary acted with mala fide or in unjust manner.
6. Now coming to the instant case, the prayer of the petitioner is that to direct the respondent to refund him the auctioned am ount of Rs. 18,80,000/ - of Fertilizers. As mentioned above, after
seizure of 1820 bags of DAP Fertilizer of Australian origin, a seizure case Bearing No. 713/Cus/Seize/MS/2016 dated 13.12.2016 was registered. Thereafter, Show -cause Notice dated
7.2.2017 wa s issued to the petitioner and the matter was adjudicated by the adjudicating
authority vide Order -in-Original No. 330 of 2017 dated 24.2.2017. But the petitioner instead of
availing proper remedy as per Customs Act, 1969 did not challenge the Order -in-Original before
the Collector (Appeals) under Section 193 of the Customs Act, 1969, filed instant petition. In
view of availability of the alternate remedy, the petitioner cannot be allowed to ventilate his
grievances through constitutional petition by passing the competent forum as per Customs Act. Further, assertions of the petitioner revolve around factual dispute, truthfulness or otherwise of which cannot be determined without inquiry and record of evidence and this Court is not permissible in Constitution al jurisdiction to hear the cases where actual controversies are
involved, in view of the law laid down by the Hon’ble Supreme Court in the case of Muhammad Younas Khan and 12 others v. Government of N.W.F.P through Secretary Forest and
Agriculture, Peshaw ar and others {1993 SCMR 618}. Furthermore, while dealing with the
question of maintainability of a petition before this Court in the wake of an alternate efficacious remedy available to a litigant, the Hon’ble Supreme Court of Pakistan in judgments report ed as
Indus Trading and Constructing Company v. Collector of Customs (Preventive) Karachi and others {2016 SCMR 842} + Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others {2011 SCMR 1813}, Muhammad Abbasi v. SHO Barakahu and 7 others {PLD 2010 SC 969} and Secretary to
the Government of Punjab v. Ghulam Nabi {PLD 2001 SC 415} held that in the wake of
availability of an alternate efficacious
remedy, jurisdiction of this Court under Article 199 of the Constitution cannot be invoked.
7. In view of above, this petition being not maintainable is dismissed.
(Y.A.) Petition dismissedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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