State of J. and K. and ors. Vs. Altaf Ahmed and anr. - Court Judgment

Khan, J.

1. These four appeals arise out of a common judgment and are disposed of by a common judgment as identical questions of law and facts are involved. The appeal raises a substantial question of law: Whether the writ court, in exercise of its extraordinary jurisdiction can issue a mandamus or for that matter any other writ or direction which has the consequence of negating the decree passed by this court on its original side. The issue involves a survey of the boundaries of power conferred on this court under Article 226 of he Constitution.

2. The case has a chequred history. It was some time in 1959 that Compartment No. 37 -- Sindh Range was leased out to M/s. Haji Abdul Aziz and Abdul Rashid for an amount of Rs. 7,35,141/-. A lease-agreement was executed between the Forest Department and the aforesaid two persons on November 26, 1959. It contained an arbitration clause and prohibited the lessees from transferring their rights or liabilities under the agreement to any one without previous sanction of the competent authority sanctioning the lease.

3. It appears that during the currency of the lease, M/s. Abdul Aziz and Abdul Rashid entered into a partnership with M/s. Ali Mohd. Sheikh, Ghulam Rasool, Abdul Rehman, Ghulam Mohd., Abdul Majid and Mst. Amina Begum to constitute a firm called 'M/s. Eastern Forest Company.' The goal of the partnership was to execute the lease aforesaid which was in fact worked out by all the partners to the notice and knowledge of the Forest Deptt. It also transpires that partners of M/ s. Eastern Forest Company fell out after sometime resulting in the disolution of the partnership and when an outstanding royalty amount of Rs. 2,34,524/- was sought to be recovered some of the legal representatives of one of deceased lessee Haji Aziz filed Arbitration application No. 59/1967 in this court culminating in appointment of the then CCF, Mr. G.A. Naqashbandi as arbitrator. He filed an award on Aug. 11, 1973 fixing iability on the firm M/s. Eastern Forest Company. The petitioners of arbitration application were allowed to go scot-free. Th'e award was thereafter made rule of the court on Oct. 23, 1974. An appeal was filed against the decree by the State which was dismissed on May 31, 1985 for its failure to object to award under Sections 30/33 of the Act.

4. Respondent who are the L.Rs of, partners of Eastern Forest Company, other than Haji Abdul Aziz and Abdul Rashid, remained on the fence watching the fate of arbitration proceedings and eventually filed writ petitions in 1975 seeking mandamus to forestall official respondents therein including the Collector, Forest Recovery from recovering the outstanding royalty amount as arrears of land revenue and from issuing a distress warrant of attaching the property of the writ petitioners. The case set up was that since writ petitioners were neither party to the lease agreement nor to the arbitration proceedings, they could not be bound by the award and no liability fastened on them. The contention prevailed with the learned single Judge who allowed the writ petitions and quashed the recovery proceedings against the writ petitioners directing that 'the outstanding royalty amount should not be recovered from them in pursuance of the decree of this court, by which award dated Aug. 11, 1974 had been made a rule of the court.' He also restrained the collector from taking steps to recover the outstanding amount from the writ petitioners under the provisions of Land Revenue Act but left the State-appellant free to seek appropriate remedy against the writ petitioners for recovery of the amount in question.

5. The State is in appeal before us and questions the very jurisdiction of the learned single Judge to issue the writ and directions on the ground that he had neither any competence to review or substitute the findings of fact recorded by the competent forums nor any authority to exercise the extraordinary writ jurisdiction to set at naught the legal process climaxed by the judgment and decree passed by this court on Oct. 23, 1974 and affirmed in appeal on May 31, 1985.

6. As already noticed, the matter raises a very interesting and significant question which touches the very roots of writ jurisdiction and its correlation with the court's original jurisdiction. Is writ jurisdiction all ervasive to bring within its sweep matters that stand determined in the allied jurisdiction by the court? Notwithstanding the vastness of the power can it be over-stretched to over turn the otherwise established legal procees and in common understanding can Judges of co-ordinate jurisdiction overrule each other? Can an authority engaged in enforcing the decree and order of this court be restrained from so doing by a writ of mandamus? All this and more falls for consideration and determination in the controversy raised before us.

7. Considering the importance of the issues raised, a brief, reference to the contours of Article 226 of the constitution would be in order. It would be pointless to delve deep into the origin of various writs from the English Law. Suffice it to say the Article confers a vast power on every High Court to issue writs mentioned therein to any person or authority, including in appropriate cases, any Govt. and to pass any order or direction for enforcement of any of the fundamental rights conferred by part III of the Constitution or 'for any other purpose' i.e. for enforcement of any other legal right. It is true that the extensive power is vacated in the High Court, but it is not unbridled. It is required to be exercised with responsibility and circumspection and is governed by the well established principles incorporating some self-imposed limitations. Some of these require that the writ court would not allow itself to be turned into a court of appeal or revision to review findings of fact recorded by competent forums or even the correct minor errors which may not occasion any injustice. The Court would also not intervene where normal remedies provided by law are efficacious and adequate. In other words, the extraordinary power is not meant to be exercised to supersede established legal remedies unless shown deficient or ineffectual. Dealing with this aspect of matter in AIR 1955 SC 425 the Supreme Court observed :--

'Though the High Court has vast powers, but that is not to say that jurisdiction will be exercised whenever there is an error of law. The High Court should not act as a court of appeal. Its powers is purely discretionary and though no limits can be placed upon that discretion, it must be exercised along recognised limits and one of the limitations imposed is that it will not act as a court of ppeal or revision to set right mere errors of law which do, not occasion any injustice.'

8. Of the five writs, we are only concerned certiorari and Mandamus in the present case to examine whether the Ld single Judge could issue any one of these in the facts and circumstances of the case. It is by now elementary that certiorari is issued to inferior courts. Tribunals or authorities to transmit record of proceedings pending with them for scrutiny of the High Court and if necessary to quash the same. It is normally issued when inferior authorities act in excess of their legal authority and commit errors of jurisdiction apparent on the face of record. In other words, the Certiorari lies where there is a defect of jurisdiction or power and patent violation of the principles of natural justice.

9. Similarly, the Mandamus lies to secure performance of a public or statutory duty in the performance of which applicant must have a sufficient legal interest. It is a command directing a person to do some public or statutory duty cast on him by virtue of his office or under the statute. The duty sought to be enforced must be duty of public nature i.e. it must be created by the provisions of Constitution or a statute or some rule of common law and must be an imperative duty and not a discretionary one, This writ may be a necessary adjunct of Certiorari, but it can't issue to compel performance by an authority of an act contrary to law or to enforce a duty which corresponds to a private right or performance whereof is discretionary in nature.

10. The purpose according to Halsbury's Laws of England is to remedy defects of justice and to do justice in all cases where there is a specific legal right and no specific legal remedy for enforcing such right. It may also issue in exceptional cases even in the face of an alternative legal, remedy, but that is besides the point. Summing up the nature of the Mandamus, the Supreme Court had this to say in comptroller and Auditor General v. K.S. Jagan Nathan, AIR 1987 SC 537 : 1987 Lab IC 262 at Page 546; of AIR SC :--

'There is thus no doubt that the High Courts India exercising their jurisdiction under Article 226 have the power to issue a writ of Mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Govt. or a public authority has failed to exercise or has rongly exercised the discretion conferred upon it by a statute or a rule of a policy decision of the Govt. or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementation of which such discretion has been conferred. In all such cases and in any other fit and proper case, a High Court can, in the exercise of the jurisdiction under Section 226, issue a writ of mandamus or pass orders and give discretion to compel the performance in a proper and lawful manner of the discretion conferred upon the Govt. or a public authority and in a proper case, in order to prevent injustice resulting to the concerned parties the court may itself pass an order of given directions which the Govt. or the public authority should have passed or given had it properly and lawfully exercised its discretion.'

11. Given regard to this legal position, it remains to be seen whether the learned single Judge could quash the recovery proceedings initiated by the Collector in execution of the decree passed by this court and restrain him to to realise the outstanding royalty amount as a consequence thereof. We have no doubt in our mind that the Ld. Judge has overstepped his jurisdiction in the matter, and we have reasons to say so. It cannot be disputed or denied that the decree passed by this court had assumed finality and it could be set aside or modified only by taking recourse to available appropriate legal remedy. It could in case be upset by the writ court in exercise of extraordinary writ jurisdiction for that would in effect amount to two courts of co-ordinate jurisdiction overruling each other. To put it differently even assuming that the controvercial award could not be held binding on the respondent writ petitioners, as it was passed at their back, it survived in law when it was made rule of the court and affirmed in appeal by this court. The recovery proceedings initiated by Collector were only in execution and implemention of the decree passed by this Court. Therefore, no duty, much less public or statutory duty, was cast on the Collector to desist from taking the recovery proceedings against the judgment-debtors. If anything, he as duty bound to implement the decree of this court and could not be restrained from performing the lawful duty by a mandamus. Nor would certiorari lie in the cricumstances as it was not anybody's case that recovery proceedings suffered from any error of law and want of excess of jurisdiction. As such, there was no occasion to quash the recovery proceedings by resort to a roving inquiry and examination of the validity of the award which could be challenged in time, through the mechanism provided in the Arbitration Act. The writ jurisdiction is after all an equitable and discretionary jurisdiction. It is not liable to be exercised in favour of those whose conduct leaves', much to be derived. One fails to understand is to what prevented the fence-sitters (writ petitioners) from seeking appropriate available remedy in time, if they felt aggrieved. Even the Ld single Judge has found them having derived the benefit of the Forest lease. Should they have been allowed to get away with the benefit in spite of their failure, to seek redressal of their grievance through established available remedies. They never deserved to be granted any relief even in equity, moreso at the cost of established legal procedure and remedy as the writ jurisdiction is not meant to supersede the establised legal remedies. It would be a sad day if it is overstretched to override States and to short circuit the normal legal process. Therefore, in our view, it was not the proper exercise of jurisdiction by the Ld single Judge to have issued the impugned writ in the facts and circumstances of the case. We also notice that appeallant-State had challenged the maintainability of the writ petitions in its reply which has not been considered by him.

12. In the premises, we hold that a writ could has no jurisdiction to issue any writ, order or direction in exercise of its power under Article 226 of the Constitution which has the consequence of up-setting of or over turning the judgment or decree passed by a Judge of co-ordinate jurisdiction on the original side. Nor would the Mandamus lie to stop the implementation of such decree by a public authority. We accordingly allow these appeals and set aside the judgment impugned.