2000 PLP 1363 (CLC)

"As regards the objection that the application was filed under Article 227 and not under Article 226 of the Constitution, if I were of the opinion that the Panchayati Adalat had not been properly constituted and had, therefore, no jurisdiction to convict the accused, it may have been possible to interfere even though proper relief may not have been asked. In this connection I may refer to the recent decision of the Supreme Court in Waryam Singh v. Amarnath AIR 1954 SC 215(b), where their Lordships pointed out that Article 227 restored to the High Court _ power of judicial superintendence which they had under section 15, High Courts Act, 1861, and section 107, Government of India Act. Such power, their Lordships pointed out, had to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for Correcting mere errors. In this connection I may refer to the' judgment of my brother Sapru, J. In Motilal v. State AIR .1952 All. 963(c), where he pointed out that Articles 226 and 227 must be so interpreted that they do not overlap and that‑‑ while Article 226 concedes to this Court vast powers of what might be called judicial review, or control by the issue of writs, directions or orders, the main objective of Article 227 would, more broadly, seem to be to secure administrative supervision not easily exercisable by writs, directions or orders, over all Courts Of Tribunals (excepting Army Tribunals) within its jurisdiction. And further he said: "Articles 226 and 227 are thus, supplementary to each other. The emphasis under Article 227 is on administrative control and the limited judicial powers contemplated by it are intended for and merely ancillary to such administrative control. Thus, Articles 226 and 227 are not intended, as far as I can see, for identical situations. Though, therefore, Article 227 can be said to be, as has been pointed out by their Lordships of the Supreme Court not merely administrative superintendence, the power of superintendence conferred by Article 227 must be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within _ the bounds of their authority and not for correcting mere errors. " Another Judge of the same Bench Desai, Judge also ventured to highlight the distinction between two Articles in para. 226, which reads as follows:‑‑ "In AIR 1954 SC 215(b), the Supreme Court laid down that Article 227 confers not only administrative but also judicial superintendence over subordinate Courts and Tribunals. In that case the Judicial Commissioner of Himachal Pradesh on an application under Articles 226 and 227 both set aside an order of Rent Controller on the ground that it was arbitrary and, therefore, without jurisdiction. Evidently the question whether the powers of superintendence are to be exercised only through an appropriate writ or can be exercised even when the remedy of a writ is not open to the aggrieved party or can be exercised without the issue of an appropriate writ did not arise before, and was not decided by the Supreme Court. But the Supreme Court did not hold that even when a writ of certiorai etc., can lie, an aggrieved party can invoke the powers of superintendence of Article 227 and not those of Article 226. ' It seems to me that the existence of remedy through an appropriate writ bars an aggrieved party's inovking powers of superintendence of the High Court under Article 227; this necessarily follows from the propositions, which are beyond controversy now, that the superintending jurisdiction exists to correct only such errors as can be corrected though a writ of certiorari etc., and that the superintending jurisdiction is exercised through the issue of one of such writs. If a party is aggrieved by an order of a subordinate Court or Tribunal, against which he has no statutory remedy, he must have no remedy from a High Court. If under the superintending jurisdiction a High Court can issue an order or direction, it can only be in cooperation with, or ancillary to, a writ of certiorari, mandamus or prohibition. Only to this extent can a High Court in exercise of its superintending jurisdiction issue an order or direction which is not of the nature of a writ certiorari etc. The order of the Panchayati Adalat was passed without jurisdiction and could be quashed ‑ by a writ of certiorari; therefore, the applicants' remedy was to apply for a writ of certiorari and not under Article 227 of the Constitution. For this reason I would dismiss the application'. The same problem again came up before the same High Court in Aidal Singh and others v. Karan Singh and others AIR 1957 All.

414. The distinction between the aforementioned two Articles were looked in para. 120 of the judgment which is as follows:‑ "To sum up the powers contemplated by the Constitution‑makers under Articles 226 and 227 appear to be different. The former is described as the power to issue certain writs orders or directions. The latter is described as the power of superintendence. There are two separate sections in the Constitution next door to each other dealing with these powers. The power under Article 226 is only judicial. The power under Article 227 is both judicial and administrative. The power under Article 226 is exercised on the application of a party and for the enforcement of a legal right. "The power under Article 227 can be exercised suo motu by the Court as the custodian of all justice within the limits of its territorial jurisdiction and for the vindication of its position as such. For the exercise of the power under Article 226, the Court has framed rules. There are no such Article 226 appears to be self‑restrictive. On the other hand, there are no restrictions indicated in Article 227 itself and the restrictions, if any, are self‑imposed. The power under Article 227 is a power that can be exercised only over Courts and Tribunals. "On the other hand, the power under Article 226 is a power that can be exercised not only over Courts and Tribunals, but also over other bodies like the Government. Article 226 confers a new power, at any rate, so far as the Allahabad High Court is concerned. On the other hand, Article 22.7 relates to a power which is merely a continuation of an old power. In India, legislative history discloses that there has been in the past and there is at present a rupture between the ,two powers. Prior to the Constitution, the power to issue writs could not be considered to be a branch of the power of superintendence, because the power of superintendence possessed by the High Courts did not carry with it the power to issue writs." "Even under the Constitution, the power of superintendence is treated as a power divorced from the power to issue writs. This is borne out by the fact that the Supreme Court possesses the power to issue writs, yet it does not possess the power of superintendence. The analogy of English Law cannot hold good in India. In England the power to issue writs is a part and parcel of the power of superintendence, because the power there is exercised by the Court as a delegate of the Sovereign who is the fountain of all justice. "This is not so in India where the source or power has always been the Statute which is at present the Constitution of India. The power conferred under Article 225 in India is also wider than the power to issue high prerogative writs in England. The power exercised under Article 226 is original. On the other hand, the power exercised under Article 227 is not original. Further, it is more reasonable to hold that an appeal should lie in cases where the judgment of a Single Judge relates to the judgment of a Court or Tribunal than to take a contrary view. "The contrary view would also bar the right of appeal of a party to the Supreme Court under Article 133 of the Constitution. There may be cases where both the Articles 226 and 227 are applicable. In cases where the relief can be given under both, the Court should exercise its power under Article 226 on the principle that where a specific remedy is provided, the general provisions of law should not be resorted to. In any case, if a party is otherwise entitled to a right of appeal against an order under Article 226, the fact that the same relief could be granted under Article 227 is no reason for depriving it of the said right where the party has given the application itself under Article 226, has claimed its right to relief under the said Article, and the case itself has been entertained and disposed of by the Court under the same Article. " The aforesaid views were affirmed by the. Indian Supreme Court in Gopala Ganu Wagale v. Shri Nageshwardeo Patas Abhishekh Anusthan Trust, Patas AIR 1978 SC 347.

7. Article 102 of the Constitution of 1962 is identical provision. The same was considered by his Lordship Justice A.R. Sheikh in Mst. Safia Begum v. Abdul Hamid PLD 1968 Lah. 1358. It was said:‑‑ "With the disappearance of the aforesaid sub‑clause in Article 102 of the Constitution Act of 1962, the power vested in the High Court under section 107 of the Government of India Act, 1915, appears to have been restored. No doubt the power is unlimited but it does not have the effect of converting the High Court into a Court of Appeal or revision, regardless of the limitations imposed by law on those powers. I, however, agree with the view that the power is to be exercised only in very rare and exceptional cases and may be used ex debito justitiae, where there is no other remedy available under the ordinary law. The case before me is of that description and the circumstances are such that I feel persuaded to invoke the extraordinary power of superintendence under Article 102 of the Constitution. I, therefore, direct that the suit entitled Abdul Hamid v. Mst. Safia Begum pending in the Court of Sh. Saeed Ahmad, Family Judge, Lyallpur; be transferred to the Court of Mr. Hassan Nawaz, Senior Civil Judge, Lahore, for hearing alongwith the petitioner's suit entitltd Mst. Safia Begum v. Abdul Hamid. There will be no order as to costs." The same enunciation was followed by a Division Bench in Karim Bakhsh v. Mst. Mubarik Jan PLD 1970 Pesh. 169 and Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542.

8. From the foregoing examination of relevant provisions of the Constitution, precedents, following ratio emerges:‑‑ (i) The power under Article 203 can be exercised even suo motu by the High Court as a custodian of all the system of justice within its territorial jurisdiction and for establishing the supremacy of the law. This power can only be exercised over Courts and Tribunals subordinate to it under its jurisdiction. (ii) The power under Article 199 is a power that can be exercised not only over Courts and Tribunals but over all other bodies, like Government and Governmental functionaries. Article 199 bestows a power which is known as the power of judicial reviews/power of issuing writs. (iii) The power under Article 199 is meant to foster the justice and keep various functionaries of State, local bodies and so forth and so on within the area of gratifying principles. (iv) The power of superintendence is to be taken as a power separate _ from the power to issue the writ. Factually speaking, the both powers arc supplementary and complementary to each other. The power of superintendence is to keep the mainstream of justice free from extraneous pollutions judicial perversions and from abuse of the judicial process.

9. Seen from the above context, the power under Article 203 is wider than the power to issue writs under Article

199. Article 203 is original in nature. In both the jurisdictional spheres, this Court can neither become an Appellate Court or a revisional Court nor is to ordinarily interfere with p waking of subordinate judiciary. The power of superintendence is to be exercised sparingly and in a highly exceptional cases. The cases of total absence of jurisdiction, the manifest excess of jurisdiction or criminal imminent abuse of jurisdiction warrant the exercise of this power.

10. Having enunciated the parameters of Article 203 in the light of Article 199, I herein proceed to find out as to whether these‑ principles are attracted to facts and circumstances of the cases in hand. From the perusal of the plaint, it is quite clear that 317 persons jointly filed a declaratory suit against Province of Punjab and functionaries of Sindh; that they were oustees of land allotted to them under Martial Law Regulation No. 115 and that Government of Punjab had decided to give them land in dispute in Bahawalpur. The learned trial Court did not advert to any evidence furnished by the parties; did not see the frame of suit; did not look into the provisions of Colonization of Government Lands Act and decree the suit. Even it did examine that the plaintiffs did not possess any existing right whatsoever and that none of them was owner of any individual right. They had claimed joint rights/accrued to them under a letter, in future No order was passed in that regard by the Court while the second suit was entitled to exclude the above declaratory decree. It is hardly necessary to reiterate that the declaratory decree was/is not executable in this manner at all. No order was passed by the Collector in their favour under section 10 of the Colonization of Government Lands (Punjab) Act. It is also not in contest that the Punjab Government had not issued any statement of condition under section 10 (ibid). The first suit was declaratory in nature. The frame of the second suit demonstrated that the petitioners had themselves occupied almost 31700 Kanals of Colony Land and they should not be dispossessed till their decree was satisfied irrespective of pendency‑ of their appeal before the learned Appellate Court. From the aforesaid perspective, I find no difficulty to hold that both the suits were incompetent and were ousted the provision of sections 42 and 56 of the Specific Relief Act.

11. A few words about section 42 of the Specific Relief act. A bare look at this provision shows that any person, who is entitled to any legal character or to any right as to any property, is invested with a right to sue for seeking declaration against any person denying or interested to deny his title to such character and right. In order to succeed under this provision, it is necessary that a plaintiff must show that he is entitled to any legal character or to any right to any property individually at the time of initiating the action. If any authority is needed, reference be made to Sh. Rafiquddin v. Asghar Ali AIR 1.922 Pat. 392 and MD. Abdul Kadeer v. Finaly Fleming & Co. AIR 1928 Rang.

256. The question that arises is, whether the plaint disclosed controversy within `the letter and spirit of section 42 of the Specific Relief Act. I find answer is positively no and fully agree with the contention of learned Additional Advocate‑General. The first suit was filed by more than 300 persons jointly; none of them was one of the owners of any existing, right in any property; all the respondents sought a declaration to the effect that they were entitled to be allotted land in future in Bahawalpur under the Circular of Member, Board of Revenue. Manifestly, the suit filed by the respondents did not fall within the domain of section 42 (ibid) in any conceivable manner. The learned Civil Judge must have examined the plaint and applied Order VII, Rule 11, C.P.C. in order to relieve the Province of Punjab and functionaries from torture of that incompetent suits.

12. On the aforesaid touchstones, I have no difficulty in holding that the judgment and decree passed by the learned Civil Judge, 1st Class, dated 27‑5‑1998, was totally without jurisdiction, of no lawful authority and so could not be maintained. Following the above conclusions, I do not find that the second suit filed by the respondent was a mere gross abuse of the process of the Court to seek affirmation from the Court of law in respect of their act of grabbing of the land. Out of 317 respondents, only 14 respondents/plaintiffs entered appearance and stated firmly that no suit was filed by them; that the aforesaid suit was filed by handful of persons belonging to Qabza Group; that the remaining respondents did not enter appearance despite substituted service and proceeded ex parte.

13. For the aforesaid conclusion, I accept Petitions Nos.714 of 1999 and 2793 of 1999 in exercise of my powers under Article 203 read with Article 199 of the Constitution. I hereby find that the judgment and decree passed by the learned Civil Judge, 1st Class, dated 27‑5‑1998 was/is totally H without lawful authority; that the suit filed by the respondents was a simple abuse of the process of the Court and so suit shall stand dismissed with costs throughout. The Suit No.393 of 1996 filed by Allah Jawaya is also found to be totally an abuse of the process of Court and so meet the same fate. The appeal filed by the Province of the Punjab before the Appellate Authority shall be disposed of by the said Authority in conformity with this order. Writ Petitions Nos.714 of 1999 and 2793 of 1999 are disposed of in the above terms. A copy of this judgment shall be immediately sent to the learned Appellate Court without any loss of time. Q.M.H./M.A.K./P‑10/L Petitions allowed.