P L D 1961 Supreme Court 192 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against an order of a learned single Judge of the High Court of West Pakistan passed on the 22nd of June, 1959, in a proceeding for committal for contempt of Court and a process issued in. pursuance thereto on the 27th of July, 1959, for such committal. The circumstances, in which the said proceeding for contempt came to be initiated, may be briefly stated as follows :‑ The respondent, Muhammad Saeed, claimed that a sum of Rs. 27,466 had been spent by him to renovate the Ganga Ram Ice Factory, Sheikhupura, which was temporarily allotted to him in 1947, and that for this sum a charge had been created on the factory by an order passed by the then Cus todian on the 3rd of May, 1947. This factory was, however, re-allotted to another person in 1954 and it was decided by the Industries Rehabilitation Board that the charge created in favour of the respondent should be liquidated in the first instance by paying the rents of the concern to him. The Board also recommended payment of interest at a reasonable rate on the said amount. The respondent, however, could only receive Rs. 1,096 from out of the rents of the factory, as it was again sealed and the allotment cancelled due to a change in the policy of Government, which now proposed to sell such evacuee concerns to evacuees from India and .to allow them to adjust the sale price against their claims in respect of properties left in India. Such a procedure would according to the respondent, involve only paper transactions and hence the respondent would be deprived of the amount for which the charge had been declared over the said factory. The respondent, in the circumstances, made repeated representations to the Rehabilitation Minister for the Government of Pakistan and other appropriate authorities for the payment of the said sum, but no action had been taken on those representations. Accordingly, having no other specific remedy available to him for enforcing his right to the payment of the said sum of money, he moved the High Court under Article 170 of the late Constitution against the present appellant and prayed that "direction, order or writ in the nature of mandamus or any other writ deemed appropriate in the circumstances of the case be issued to the respondents (appellant herein) directing them to repay to the petitioner (respondent herein) the sum of Rs. 27,466 with interest from the 3rd of May 1949." On this petition a report was, in the first instance, called for from the present appellant as to why the admitted claim of the said respondent had not been paid and by what method it was proposed to be met. The report was duly submitted but it was not found satisfactory by the High Court and the writ petition was ultimately taken up for final hearing on the 13th of November 1958. During the course of the hearing the learned counsel appearing for the appellant drew the attention of the Court to the Displaced Persons (Compensation and Rehabilitation) Act, being Central Act No. XXVIII of 1958, and urged that under this statute the legislature had made provision for meet ing such cases. The interests of charge holders over such evacuee properties had been safeguarded by these provisions and, as such, the respondent's case would be dealt with in accordance with the said law and there was no necessity for the issue of any writ. In the said Act subsection (4) of section 3 provided as follows :‑ "The Central Government shall prescribe the cases or class of cases in which, and the period within which,‑ (a) any charge created by a Custodian on any property acquired under subsection (L) or subsection (2), or (b) any decree granted by a Civil Court against such property, shall be satisfied, and the manner in which it shall be satisfied." The High Court after considering the arguments advanced came to the conclusion that the relief sought in the petition could not be granted on the extraordinary writ jurisdiction and that must seek his remedy in the ordinary Courts. But curiously enough went on to consider the provisions said Displaced Persons (Compensation and Rehabilitation) Act, 1958; although the respondent and asked for no other relief nor given invoked the provisions of the said Act for any other purpose ; and ultimately to hold that since subsection (4) of section 3 of the said Act quoted above) cast a duty on the Central Government to prescribe certain matters therein mentioned for the satisfaction of charges created by a Custodian on any property acquired by the Central Government under the provisions of the said Act, this was a fit case in which the Central Government should be directed by a writ of mandamus to comply with the said statutory duties, as there was nothing to show that any steps had been taken in that behalf, and ordered accordingly. It may be mentioned here that at the time that this order was made, namely, the 13th November, 1958, there was neither in the petition of the respondent nor in the reports filed on behalf of the appellant any indication or suggestion of any kind whatsoever to the effect that 'he said factory had been or was about to be acquired under the provisions of subsections (1) and (2) of section 3 of the Act of 1958. Evidently, the High Court overlooked the fact that the duty to prescribe anything under subsection (4) of section 3 of the Act of 1958 arose only in the case of properties acquired under the earlier pro visions of the said section and unless the property over which the respondent claimed his charge was so acquired, he would have no interest whatsoever in the performance of the said duty or derive any benefit there from. Be that as it may, what is more curious in this case is that no appeal was preferred by the Central Government against the said order. The respondent, therefore, insisted upon the Central Government complying with the said order and when this was not done he, on the 19th of May, 1959, complained to the High Court that its order had not been complied with, and prayed that the appellant be dealt with in accordance with law and forced to comply with it, as it was alleged to be flagrantly disregarding the said order. On this application a report was called for from the appellant. The report submitted disclosed that the said Act of 1958 and section 3 thereof had been amended by an Ordinance, being Ordinance No. 1 of 1959, which was published in the Official Gazette on the 5th of January, 1959. Furthermore, that since subsection (4) of section 3 of the said Act required the prescribing of rules for various things which involved decisions on questions of policy, some delay had taken place but the Government was fully alive to its obligations and was taking active steps for the finalization of the rules. This report also referred to section 25 of the Act itself which barred any process or order by a Court against the Central Government or any officer appointed under the Act "in respect of any action taken or to be taken in exercise of the powers conferred by or under this Act." This reference to section 25 turned out to be impolitic, for the High Court took the view that the said section could have been relied upon only in answer to the‑ original writ petition and not after the order had been made therein, for then it had to be obeyed and no objection to its compliance could be raised. After expressing this view a further month's time was given to the Government to comply with the order in the writ petition and the case was directed to be put thereafter. After the expiry of the month the case was, as directed, put up and since no compliance had been made the process complained of was issued. It was only after this that the present appellant applied for special leave to appeal to this Court, against both the said order and the said process, on the 15th of August 1959. But whilst this petition was pending disposal in this Court, the contempt proceeding came up for final hearing and was dismissed for default, as no one was present on behalf of the respondent herein. The said respondent, therefore, again moved the High Court on the 20th of August 1959, praying for the committal of the appellant herein for contempt of Court. On this application again an inquiry was directed to be made from the present appellant as to when the relevant rules were likely to be framed and the appellant was also informed that unless a satisfactory reply is received within one month, the Court will have no option but to issue a notice for contempt. Special leave was, however, granted in this matter on the 4th of November 1959, and on the 9th of November 1959, the High Court stayed the contempt proceedings sine die pending consideration of the appeal in this Court. The appellant now seeks to challenge the validity of these contempt proceedings mainly on three grounds :‑ (1) that the original order passed in the writ petition was wholly without jurisdiction and as such could not be enforced or its non‑compliance punished as a contempt of Court, (2) that in any event the order not being of an absolute character could not be enforced by such a procedure, and (3) that there had been no deliberate or flagrant disregard of the order of the High Court in the writ petition warranting the issue of process for contempt. Before we take up for consideration the above grounds it is necessary that two preliminary objections taken on behalf of the respondent herein should first be dealt with. It is urged on behalf ‑of the respondent that the present appeal has become infructuous, as the process complained against must be taken to have been automatically wiped out by reason of the dismissal of the first contempt proceeding on the 17th of August 1959. This objection, however, ignores the fact that this appeal is also directed against the order of the High Court passed on the 22nd of June 1959, by which‑it has been held that the order passed in the writ petition has to be obeyed and no objections to its compliance can be raised at this stage. This order is a final order adjudicating upon the right of the appellant to raise such objec tions and to that extent has still, therefore, to be disposed of. It is next urged that since no appeal has been preferred against the original order in the writ petition itself the appel lant should not be allowed to challenge or go behind that order in this appeal. We see no substance in this contention, for, eve in execution proceedings questions relating to the executabilit of an order or decree can be raised and it is open to the part against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or the it is incapable of execution. Therefore, if the order passed by the High Court of West Pakistan on the 13th of November 1958, can be shown to have been made clearly without jurisdiction, then the appellant can certainly object to its enforcement. Apart from the provisions of section 25 of the Act itself taking away the jurisdiction of the Civil Courts to question the actions of the Central Government or officers appointed under the Act in respect of things done or to be. done in exercise of the powers conferred by or under the said Act, which was not noticed by the‑ High Court when the order on the original writ petition was passed, it seems to us that the High Court was even otherwise incompetent to make such an order. The order, as already pointed out, was issued by the Court on its own motion; although the present respondent had not asked for this relief and had in fact failed to get the relief he sought. This, as has been held by this Court in the case of The Tariq Transport Company, Lahore v. The. Sargodha‑Bhera Bus Service, Sargodha and others (P L D 1958 S C (Pak.) 437) the High Court was not competent to do even under Article 170 of the late Constitution, far less could this be done after that wide jurisdiction had been taken away by the Laws (Continuance in Force) Order, which was promulgated on the 10th of October 1958. The procedure adopted ‑by the learned Judge of the High Court hearing the writ application was wholly unwarranted and offended against the generally accepted principle upon which orders, of this nature can be issued. The respondent, as already stated, never complained of the in action of the Government so far as the framing of the rules under subsection (4) of section 3 of the said Act was concerned. Indeed he could not do so, for, as we have earlier pointed out, he had no particular or specific interest or right in the matter, for the factory with which he was concerned had not been acquired. As such he never even called upon the Government to do justice to him by performing such a specific duty, nor was justice denied to him. It is necessary in order to entitle a 'person to ask for the performance of any public duty by mandamus to show that he has some particular ground for claiming such performance, apart from the fact that he is interested in the performance of such a duty as a member of class of persons, all of whom are equally interested therein. As observed in the case of The Queen v. The Guardians of the Lewisham Union ((1897) 1 Q B 498 at 501), the Courts have never claimed to exercise a general power to enforce the performance of statutory duties by public bodies of the application of anybody who chooses to apply but have always required that au applicant should have a legal and specific right in him to enforce the performance of such duties. The second ground taken by the appellant must also, in our opinion, be upheld. This Court did point out in the case of The State of Pakistan and another v. Mehrajuddin (P L D 1959 S C (Pak.) 147) that the method of enforcing a judgment granting an order of mandamus by commitment for contempt is appropriate only where the mandamus is of an absolute nature, but where the order involves the consideration of other factors, which are exclusively within the competence of the relevant executive authorities and can only be decided by those authorities after a good deal of examination and the exercise of discretion and judgment, the said procedure is not appropriate. In the present case the Central Government was directed to prescribe the cases or classes of cases in which, and the period within which, such charges were to be satisfied and the manner in which they were to be satisfied in the event of the property over which the charge had been created being acquired by Government. The said Act also made provision for various other things such as the setting up of compensation, rent and rehabilitation pools, appointment of machinery for the utilization of the pools so set up and for the proper custody, management and disposal of the said pools, and a vast variety of other matters for the settlement of claims of evacuees and the ultimate disposal of evacuee properties. The rules, therefore, did not fall in the category of rules which could be made without deciding these other questions of policy. The order directing the making of such rules could not, by the very nature of the act commanded to be done, be an absolute order the per formance of which could with any show of reason be enforced by the drastic method of committal for contempt. Lastly, upon general principles too, we are inclined to take the view that unless there is something in the nature of contu macious disregard of an order, such an extraordinary procedure should not be resorted to. The facts of the present case do no indicate that there was any such wilful or contumacious disregard of the order of the Court. Indeed, the appellant had in the reports submitted pointed out to the Court that the Central Government was alive to its responsibilities and the question of framing and finalisation of the rules was receiving its active consideration but the work was being delayed due to the com plex nature of the matters required to be dealt with and decided. The contention that an order of the nature made by the High Court in the writ petition could not have been made of the 13th of November 1958, after the promulgation of the Law (Continuance in Force) Order, 1958, on the 10th of October 1958, is also, in our view, a valid contention. The said Order of 1958 I denuded the High Court of the wide jurisdiction they possessed under Article 170 of the late Constitution to issue directions of orders for any purpose to any person or authority including any Government and left them with the jurisdiction to issue only the writs specified in clause (4) of Article 2 thereof. So far as the writ of mandamus (which was the writ purported to be issued in the present case) is concerned, the Courts in England or America never sought to compel by mandamus the performance of duties which were not of a purely ministerial nature not involving the exercise of any discretion or judgment. They have never arrogated to themselves the authority to control legislative departments, in the exercise of their legislative powers, by mandamus. "The legislature", it is said, "cannot be compelled to pass an Act, even though the Constitution expressly com mands it, nor be restrained from passing an act, even though the Constitution expressly prohibits it" (vide Ferris on The Law of Extraordinary Legal Remedies, page 362). In this country too, the functions of Government are divided into three distinct branches‑‑legislative, executive and judicial‑each independent of the other whilst acting within its own sphere. For the harmonious working of such a system it is incumbent on each to know the limits of its own jurisdiction and not seek to trespass into the field of the other. The writ of mandamus cannot, therefore, issue for enforcing the performance of any and every kind of duty by Government or its officials. They might be so compelled only when they are under a legal obligation towards a subject to carry out specific ministerial duties, in relation to that subject, clearly imposed upon them by law. The duty to make rules in exercise of statutory powers can hardly be conceived to fall within the ambit of such ministerial duties as might be commanded to be performed by mandamus. For the reasons given above, we hold that the order passed in the Writ Petition No. 81/R of 1958 by the High Court of West Pakistan on the 13th November 1958, was clearly without juris diction and incapable as such of being enforced. This appeal is accordingly allowed and the order passed by the High Court on the 22nd of June 1959 holding that no objection can be taken to the enforcement of the said order of the 13th of November 1958, is hereby set aside. In the circumstances of this case, however, we make no order as to costs. K. B. A. Appeal accepted.