P L D 1966 Supreme Court 639 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of West Pakistan dismissing in limine a petition under Article 98 of the Constitution on the sole ground that "another adequate remedy in the form of a civil suit exists in this case." The circumstances, which led to the filing of the said petition, may be briefly stated as follows‑‑ The appellant society, which is a registered body called the Anjuman‑e‑Ahmadiya, Sargodha; and claimed to be a religious body of the Ahmadiya community, was desirous from a very long time of acquiring a plot of land for its community Mosque at Sargodha. It had moved the authorities on several occasions and after protracted correspondence ultimately the Deputy Commissioner, Sargodha, on the 17th of January 1962, by his Memorandum No. 110/C/UUC, recommended to the Com missioner that four kanals of Government land comprised in "Khasra Nos. 98/1/2, 99/1/5/2 and 292/96/1/4" may be granted to it for the said purpose. In this Memorandum the plot proposed to be given was described as follows: "The land applied for is a part of 1191 Kanals of State land which was transferred to the Education Department in the year 1956, for the construction of a Girls College. Since a Girls College has since been provided by the Municipal Committee, Sargodha, on other State land near Block No. 26 and 30 Kanals, 14 marlas of land out of the above‑mentioned area of 1191 kanals have been given to various Transport Companies for their Truck Stand, the land is no longer required for the purpose for which reserved." It further appears from this Memorandum that the proposal regarding the sale of the land in question had already been advertised for a period of one month but no objection had been received. The Deputy Commissioner was also of the opinion that the grant was "not likely to create any communal dispute in future." This recommendation was made on the last application of the Anjuman filed in 1957, in which the Anjuman had asked for the purchase of State land measuring 4 kanals comprised only in Khasra No. 98/1/2, Sargodha. No other Khasra numbers were mentioned but it was stated that the land applied for is a part of the 119' kanals of State land which was transferred to the Education Department in the year 1956 for the construction of a Girls College and that the Government proposed to resume this land since the Municipal Committee of Sargodha had started the construction of an Intermediate College on another plot of State land. This application enclosed an aks shajra of the land applied for together with a town plan showing the site. The Deputy Commissioner also forwarded this aks shajra of the land indicating the Truck Stand and the proposed Ladies' Park site together with the town plan to the Commissioner along with his recommendation. This proposal was sent down for further re‑examination and the Deputy Commissioner on the 12th of March 1962, again reported by his Memorandum No. 346‑C/HCC that the proposal had been "re‑examined in light of the observation contained" in the Commissioner's Memorandum and the recommendation was adhered to for the following reason: "The site under the Truck Stand lies opposite to the site proposed for the mosque and a road exists between the Truck Stand and the said site. This site is on the roadside and the adjacent land has already been transferred to the Municipal Committee, Sargodha, for Ladies Park. The present location of the site for the mosque is not affected in any way and the present proposed location will not have to be shifted in case the Truck Stand is removed." This recommendation was again examined by the Colony Assistant and the office note forwarded by him to the Commissioner also shows the proposed land as being comprised in Khasra Nos. 98/1/2, 99/1/5/2 and 292/96/1/4 of Sargodha town. The note further goes on to confirm that "the proposal has been advertised for a period of one month and no objection. received" and that "it has been certified that it is not likely to create any communal dispute in future." This note also found the proposal in order and recommended the grant pointing out that the Commissioner is himself vested with necessary powers to make the grant under Serial No. 12(1) of the Schedule appended to the West Pakistan (Land Disposal) Delegation of Powers Rules, 1960. The Commissioner endorsed his approval of the proposal on this note on the 8th of April 1962, by saying "as proposed". Although throughout the land was described as being comprised within Khasra Nos. 98/1/2, 99/1/5/2 and 292/96/1/4, the formal letter of sanction issued by the Commissioner's office under Memorandum No. 6118/CA of the 10th of April 1962, unfortunately gave a wrong Khasra number, for, it stated that "the Commissioner is pleased to accord sanction to the sale by private treaty of an area measuring four kanals comprised of Khasra Nos. 91/1/2, 99/1/5/2 and 92/96/1/4 situated in Sargodha town to the Anjuman‑e‑Ahmadiva, Sargodha for the construction of the mosque at the rate of Rs. 1,388 per kanal." The mistake in this is that instead of "98/1/2" the first Khasra No. mentioned is "91/1/2." This mistake unfortunately was not detected by any body and the formal deed of conveyance drawn up also perpetuated this mistake by describing the land granted in the Schedule to the deed of conveyance as being comprised in Khasra Nos. 91/1/2, 99/1/52 and 292/96/1/4. It will be noticed that in the Schedule not only is Khasra No. 98/1/2 given as 91/1/2 but Khasra No. 99/1/5/2 is also wrongly written as 99/1/52. The boundaries of the land have not been set out in detail in the Schedule but it is stated that they are as delineated in the attached site plan. In the site plan itself the land has been correctly delineated and coloured and is shown to be situated opposite to the truck stand with a road intervening and adjoining the area allocated for setting up of a ladies' park. Khasra No. 91 is at some distance from this place. It is said that it is actually a graveyard and in between this graveyard and the plot delineated on the plan there is an Eidgah, a road and a good portion of the land earmarked for the ladies' park. The Anjuman claims that in pursuance of this grant possession of the area delineated in the plan was delivered to it and it started construction of the mosque thereon after enclosing it with boundary walls all round. The construction claimed to have been put up are a platform and a mehrab. This construction was made, it is claimed, on the basis of a plan submitted to the Municipality, although the construction was actually started in anticipation of the Municipality's sanction. The Municipality at first took objection to this but subsequently the matter was compounded by payment of the necessary fees. Thereafter all of a sudden the President of the appellant Anjuman was served with a notice dated the 22nd of July 1962, saying that "the Government have decided to cancel the sale of four kanals of land to you. You may, therefore, please vacate the possession of the land in question." A copy of this order was also endorsed to the Superintendent of Police, Sargodha, for necessary action. This was the order that the appellant Anjuman sought to challenge in the High Court on the ground that the action was arbitrary, illegal and in disregard of the principles of natural justice. The appellant further claimed that after title had been perfected by execution and registration of the deed of sale and the delivery of possession of the land in accordance with the provisions of the Colonization of Government Lands Act, 1912, the Government could only act in accordance with the terms and conditions contained in the deed of conveyance and no power of resumption otherwise remained in the Government. It was also alleged in the writ petition that the action of the Government amounted to an infringement of the principles embodied in Articles 5 and 7 of the Constitution which guaranteed the right to acquire and hold property. The impugned order ex facie gave no reasons for the purported cancellation of the sale and was admittedly made without giving any prior notice to show cause. The prayers in the petition, therefore, were for the cancellation of the said order on the ground of its having been made without lawful authority and for a direction on the Government not to disturb the possession of the Anjuman. A learned Single Judge of the High Court, before whom the application was first moved, on the 20th of July 1962, granted an interim order of stay and called for a report from the Deputy Commissioner, Sargodha. During the pendency of the petition another Anjuman known as the Anjuman‑e‑Khudamul Muslimeen, Sargodha, attempted to get itself impleaded as a party to the petition but the High Court did not permit this on the ground that the latter society bad no legal interest in the land and therefore, no locus standi, in the matter. The parawise comment of the Deputy Commissioner was submitted on the 15th of August 1962 and in these comments the case set up was that the land taken possession of by the Anjuman being actually comprised in Khasra Nos. 98/ 1 /2 (part) and 97/2 (part) was never sold to it, as the order of the Commissioner giving the necessary sanction did not contain any reference to these Khasra numbers. The Anjuman was, therefore, in un authorised possession of an area to which it had no legal title. These two Khasra numbers were never advertised as required by paragraph 36 of the Financial Commissioner, Punjab (now Board of Revenue's) Standing Order No.

67. The grant also, it was maintained, violated the directions contained in paragraph 67, which is as follows:‑ "Before proposing the sale of a site for a religious or social purpose, the Collector should see that it is at a suitable distance from those belonging to other religious denominations and along customary processional routes of other communities. He should also obtain the concurrence of the district police authorities to his proposal before it is submitted for sanction. In all cases reasons should be given for the area proposed for sale and the price to be charged." The plot in possession of the Anjuman, it is further claimed, "is situated in a locality where very few Ahmadis live within a radius of many furlongs." It is the further case of the Government that after the mutation was sanctioned for the above grant considerable agitation started and many protests were received by the authorities "from every nook and corner of the town, including the Municipal Committee, the Union Committees and other public bodies", but in spite of this the appellant Anjuman continued the construction work in haste. The Government nevertheless acted after fully considering the question in all its aspects and after fully going into the merits and demerits of the deal in question which appeared to Government to have been made under a bona fide mistake of fact and law and in contravention of the provision of the Colonization of Government Lands Act, 1912, Finally the hat the Anjuman could either bring a civil suit for a declaration of its title to the land or sue the Government for specific performance of the contract, if any. In the Government's view the provision for arbitration under clause 11(A) of the conveyance itself could also be treated as a sufficient alternative remedy for disentitling the Anjuman from seeking relief under Article 98 of the Constitution. This clause 11(A) provides as follows:‑ "If any question, difference or objection whatsoever shall at any time hereafter arise between the Government and the grantee in any way touching or concerning this grant, or the construction, meaning, operation or effect thereof or any clause herein contained or as to the rights, duties or liabilities of either party under or by virtue of this grant or touching the subject‑matter of this grant, or arising out of or in relation thereto, then, save in so far as the decision of any such matter has been hereinbefore provided for and has been so decided, the matter in difference shall be referred to the arbitration of the Commissioner, who shall have power to decide any matter so referred including the following questions:‑ (i) whether any other provision has been made in these v_; presents for the decision of any matter and if such provision has been made, whether it has been finally decided accordingly, and (ii) whether the grant should be terminated or has been rightly terminated, and what are or will be the rights and obligations of the parties as the result of such termination." After perusal of this parawise comment the High Court dismissed the petition in limine, as already stated, holding that a civil suit was an adequate alternative remedy to which the Anjuman should resort. Leave was granted in this case to consider whether the remedy by way of a suit was an adequate alternative remedy, as the order complained of appeared to be "one purporting to be made in exercise of public power, and suitable prima facie scrutiny in the prerogative jurisdictions." The main ground that has been urged before us is that the jurisdiction granted to the High Court under Article 98 of the Constitution is in the nature of an extraordinary jurisdiction analogous to the jurisdiction that was formerly vested in the superior Courts under clause 2(4) of the Laws (Continuance in Force) Order and Article 170 of the Late Constitution. The relief sought for in the petition was for the cancellation of an executive order on the ground that a public power had been arbitrarily exercised to deprive a group of citizens of rights which had lawfully vested in them in accordance with law. It is pointed out that what was asked for was a relief by way of a direction to the appropriate authority in the nature of a writ of mandamus to do that which it is required by law to do after declaring that its act of purported cancellation was without lawful authority. So far as these writs are concerned it is now Settled law that to disentitle a person from such an extraordinary relief the alternative remedy available must be a remedy in law; that is a remedium juris and one which is not less convenient, beneficial and effective, if what is sought to be enforced by such and extraordinary remedy is "a legal right to the performance of a, legal duty" of a public nature. The only exceptions to this rule, as stated in Halsbury's Laws of England, 3rd Edition, Volume II, page 108 are. (i) that the Court will not interfere to enforce the law of the land by the extraordinary remedy of an order of mandamus in cases where an action at law will lie for complete satisfaction, and (ii) that in accordance with the general rule that where a statute creates an obligation and enforces its performance in a specified manner, the performance cannot be enforced in any other manner, the remedy by mandamus will not be available when a specific remedy is given by the Act imposing the duty it is sought to enforce. It is axiomatic that in the case of a relief of this nature the foundation for the application must be a failure to perform some public duty but even after this is established the Courts still have a discretion in the matter and one of the guiding principles laid down by the Courts in England for the exercise of this discretion o is that the Court "will render it as far as it can the suppletory means of substantial justice in every case where there is no other specific legal remedy for a legal right." Rex v. Archbishop o, Canterbury (15 East 117 at 136) This rule was reiterated in the case of in Re Barlow (30 L J (Q B) 271) in the following terms:‑ "It is well settled that where there is a remedy equally convenient, beneficial and effectual, a mandamus will not be granted. This is not a rule of law, but a rule regulating the discretion of the Court in granting writs of mandamus; and unless the Court can see clearly that there is another remedy equally convenient, beneficial and effectual, the writ of mandamus will be granted, provided the circumstances are such in other respects as to warrant the granting of the writ." Thus once it is established that the remedy sought is for the performance of some public duty then relief by way of an extraordinary remedy of this nature is not to be denied merely because some other remedy under the general law is available, unless such alternative remedy can be considered to be equally inexpensive, expeditious, beneficial and efficacious. The policy underlying the introduction of this form of extraordinary remedy E is, as observed by Lord Mansfield in Rex v. Barker ((1762) 3 Burr. 1265=97 R W) "to prevent disorder from a failure of justice and defect of police" in an inexpensive, expeditious and effective manner "where the law has established no specific remedy and where in justice and good Government there ought to be one". In a case where this remedy is in other respects warranted it is rarely that the Courts in England have considered an action in law to be such an adequate alternative remedy as to refuse the writ unless complicated questions of fact have to be determined, or a question of title to land is involved or the remedy sought is, in effect, for the recovery of damages. The learned Additional Advocate‑General appearing on behalf of the Deputy Commissioner and the Government of West Pakistan has, in this connection, placed before us a Full Bench decision of the West Pakistan High Court in the case of Mahboob Ali Malik v. The Province of West Pakistan (P L D 1963 Lah. 575). The judgment in the case was delivered by the then learned Chief Justice of the High Court but the tests that have been formulated at pages 581 and 582 of the report do not appear to be, in any way, in conflict with what we have stated earlier. The learned Chief Justice has clearly pointed out in the second test laid down by him that "if the relief available through the alternative remedy, in its nature and extent, is 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, with the speed, expense or convenience of obtaining it under Article 98." Again at page 582 it is observed that:‑‑ "On the other hand, if there is another authority which has the power to give the relief of the requisite nature and extent, and this Court has to make a comparison of the speed, expense or convenience of giving that relief under Article 98, with the speed, expense or convenience of obtaining it from the other authority, the fact that it would be necessary to take evidence before giving the relief, might be almost a determining factor against attempting to give relief under Article

98. The need for taking oral evidence, in 'such a case, would almost certainly be a conclusive consideration for not acting under Article 98." In our view, when the relief sought for is by its nature one which lends itself to be effectively remedied by orders of the nature contemplated in paragraphs (a), (b) and (c) of sub Article (2) of Article 98, then the intention of the Constitution appears to be that the remedy granted by the Constitution should be made available to the citizen unless the Court is satisfied that other adequate remedy is provided by law. The other adequate remedies provided by law would, in the ordinary circumstances, have reference to the remedies provided by the particular statute itself which has created the right of obligation and not a general remedy at law, as for example by a suit. On the other hand, if the remedy sought for is in substance a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, for, the remedy provided by this Article is not intended to be a substitute for the ordinary forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. A suit is by l no means as inexpensive or speedy or beneficial a remedy as the remedy provided by this Article. Even in the first case where full redress can be given by an order contemplated under sub‑article (2) of Article 98 if an alternative remedy by the law creating the right or obligation has been prescribed the Court has still to consider whether such a prescribed alternative remedy is equally, inexpensive, expeditious, officacious and beneficial. Applying these tests to the present case we cannot help observing that what the appellant really wanted was the performance of a public duty, namely, that the authorities seeking to cancel its grant should proceed in accordance with law, namely, the provisions of the Colonization of Government Lands Act, 1912, under which the grant was made. The main question in issue between the parties in this case was as to whether a valid grant of the land in dispute had been made to the appellant. The authorities relied upon a mis-description in the deed of grant to substantiate their case that there was no valid grant at all. On the other hand, the appellant contended that this mis-description .in the conveyance and in the latter of sanction issued by the Commissioner was only in respect of one of the Khasra numbers, although the land demised was delineated correctly in the plan annexed to the deed and, as such, there could not possibly be any doubt or mistake as to the identity of the land demised. The relevant correspondence leading to the grant, which were filed as annexure to the petition moved in the High Court, showed that throughout the parties had proceeded on the basis that the land of which the grant was to be made was comprised in Khasra No. 98/1/2 and was one which was situated opposite to the truck stands and adjoining the land earmarked for the ladies' park. No oral evidence was necessary, in our view, to determine this question as to whether there had been a valid grant of the land in dispute to the appellant. It could be decided upon the evidence of the preceding correspondence and the deed of grant itself following the general rule of construction of deeds that a mere mis-description of the land demised does not invalidate the demise if the land is otherwise clearly identifiable. In these circumstances, we are clearly of the view that this`` was a fit case for the grant of relief under Article 98 and that a suit could not be considered to be an adequate alternative remedy for disentitling the appellant from getting this relief, for all that the appellant sought was the performance of a public duty in accordance with law. Under section 30 of the Colonization of Government Lands Act, 1912, it appears that a person, who has under the rules issued by the Government acquired proprietary right in any Government land, is to be bound in respect of such land by the conditions set out in the Schedule 11 of the Act itself and other provisions of the Act applicable to proprietors of land. Under paragraph 155‑A of the departmental instructions, referred to in the said Schedule, on completion of the purchase and execution' of the conveyance the parties cease to be governed by any conditions incompatible with those actually incorporated in the instrument itself. Such a grant being a Crown grant is to be read, according to its tenor, any statue or law to the contrary notwithstanding. This Schedule also indicates that the right of re‑entry or assumption can only be exercised where a breach of any of the conditions of the sale has taken place and that too after the dispute, if any, has been referred, following the procedure therein prescribed, to arbitration, if the same has not been excluded by the terms and conditions of the deed. In the present case, however, the deed itself provides in paragraph 11‑A (earlier quoted) that whenever there is a dispute or difference there shall be an arbitration. Even in the case of tenants who have not yet acquired proprietary rights resumption of the tenancy can, under section 24 of the said Act, be only made "after giving the tenant an opportunity to appear and state his objections" and even in such a case if the breach is capable of rectification the Collector, it is; provided, shall not order resumption of the tenancy unless the tenant has failed after notice to rectify the breach within a reasonable time. It is, therefore, clear from the provisions contained in the statute and the conditions in the deed of conveyance that if there; has been a valid grant then it cannot be cancelled in the manner in which the authorities have purported to do in the present case. The case was thus clearly one in which the appellant was complaining of a non‑performance of a public duty and asking; for a direction that the authorities concerned should perform their public duty in accordance with law. It was idle on the part of the authorities, therefore, to suggest that since arbitration has been provided for in the conditions set out in the deed of conveyance the appellant should be denied the remedy under Article

98. It seems to us that it can with greater force be urged that in view of this arbitration clause it was the clear duty of the authorities to have the question, as to whether there had or had not been a valid grant in respect of the plot in dispute, decided by arbitration before purporting to cancel the same. It is also clear that under paragraph 9 of the conditions set out in the deed of conveyance resumption of the grant can only be made "if the grantee fails to perform or commits any breach of the terms or conditions of this grant or suffers or permits such a breach or non‑performance." The principal question that had, therefore, to be decided in this case was as to whether there was a valid grant in respect of the land in dispute in favour of the appellant, and this could, in our view, have easily been determined effectively upon the documents filed on the record. No elaborate evidence was necessary for this purpose and certainly no oral evidence was required to be taken nor had any complicated question of fact to be determined upon such evidence. It is furthermore not as clear as the High Court seems to have thought that the bar to the taking of cognizance by the Civil Courts of the manner in which the Provincial Government or Collector or any other Revenue Officer exercises any power vested in it or in him", created by section 36 of the Act of 1912, could not be effectively pleaded in a suit filed to challenge the propriety of the manner in which the cancellation had been made in the present case. For these reasons we are of the opinion that the High Court was not right in holding that a suit was an adequate alternative remedy within the meaning of Article 98 of the Constitution in the facts and circumstances of this case Since this is the only ground upon which the petition was dismissed, we are of the view that this appeal must be allowed and the order of the High Court set aside and order accordingly. But since the High Court has not determined the principal question, namely, as to whether there was or was not a valid grant in respect of the land in dispute we order that this case should now go back to the High Court for the determination of the above question and for the disposal of the petition under Article 98 of the Constitution in accordance with law. During the pendency of the hearing of the petition in the High Court the order granted by this Court for the maintenance of the status quo as to possession shall continue in operation. There will, however, in view of the special facts of this case, be no order as to costs. A. H. Appeal allowed.