P L D 1955 Lahore 149 (PLP)

SHABIR AHMAD, J.‑This petition and Civil Miscel laneous Petition No. 439 of 1954 will be disposed of together by this order not only because the main points that arise in the two petitions are the same but also because the material parties in them are identical. In this petition the New Goal Bazar Cloth Market Union Registered, Lyallpur, through its President Muhammad Akram Butt prays for a writ of prohibition restraining the Municipal Committee, Lyallpur, for a period of six months from directing the members of the petitioner to remove their place of business from the Goal Bazar, Lyallpur, where the 83 members of the union are working. In Civil Miscellaneous petition No. 439 of 1954 the New Cloth Market Union Registered, Lyallpur, wants a writ of certiorari against the Municipal Committee, Lyallpur, and the Senior Civil Judge, Lyallpur, to restrain the res pondents from ejecting for a period of six months eleven members of the union from the Goal Bazar where they are carrying on their business in khokhas. It is clear from the petition and the affidavit attached thereto that some residents, of the locality in which the members of the peti tioner are carrying on business obtained a decree against the Municipal Committee, Lyallpur, that the khokhas of the eleven members for whose benefit this petition is put in be removed as they obstruct the light and air of the resi dents. It would appear that proceedings are being taken through the Court of the Senior Civil Judge Lyallpur, to have the khokhas hit by the decree removed and for that reason this petition has been put in. It is admitted that the khokhas in which the members of the petitioner are carrying on their business of selling cloth are on a public street and that a notice has been issued by the Municipal Committee under section 173 of the Municipal. Act for their removal. Moreover it is common ground that before the Cloth Market was shifted to the Goal Bazar, it was being run in Mandar Gali but in 1953 the Administrator of the Municipal Committee, Lyallpur, had it shifted to Goal Bazar where the members of the union put up khokhas and have since been paying rent for the use of the public street under those structures The permission to use the public street was granted and the notice to the Municipal Committee has been issued under section 173 of the Punjab Municipal Act which is in the following terms :‑ " 173. (1) The committee may grant permission in writing, on such conditions as it may deem fit for the safety or convenience of persons passing by, or dwelling or work ing in the neighbourhood, and may charge fees for such permission, and may at its discretion withdraw the permis sion, to any person to :‑ (a) place in front of any building any movable encroach ment upon the ground level of any public street or over or on any sewer, drain or watercourse or any movable overhanging structure projecting into such public street at a point above the said ground level, (b) take up or alter the pavement or other materials for the fences or posts of any public street, (c) deposit or cause to be deposited building materials, goods for sale, or other articles on any public street, or (d) make any hole or excavation on, in or under any street, or remove materials from beneath any street, so as to cause risk of subsidence, or, (e) erect or set up any fence, post, stall or scaffolding in any public street. (2) Whoever does any of the acts mentioned in sub section (1) without the written permission of the com mittee shall be punishable with fine which may extend to fifty rupees and the committee or the secretary of the committee or the Medical Officer of Health or any person authorised by the committee may‑ (i) after reasonable opportunity has been given to the owner to remove his material and (if) he has failed to do so, remove or cause to be removed by the police, or any other agency, any such movable encroachment or ' overhanging structures and any such materials, goods or articles of merchandise and any such fence, post, stall or scaffolding. (ii) and take measures to restore the street to the condition it was in before any such alteration, excavation or damage. (3) If the material specified in clause (i) of subsection (2) has not been claimed by the owner within a fortnight of its having been deposited for safe custody by the committee, or if the owner shall fail to pay to the com mittee the actual cost of removal or deposit in safe custody, the committee may have the material sold by auction at the risk of the owner, and the balance of the proceeds of such sale shall after deduction of the expenditure incurred by the committee be paid to the owner, or if the owner cannot be found, or refuses to accept payment the balance shall be kept in deposit by the committee until claimed at the risk of the person entitled thereto, and if no claim is made within two years the committee may credit the amount to the municipal fund. Explanation.‑For the purposes of this section `movable encroachment ' includes a seat or settee, and movable overhanging structure ' includes an awning of any material." The permission of the committee to members of the petitioner union to carry on their business in the Goal Bazar was given under clauses (a) to (e) of subsection (1) of section 173 and has been withdrawn by virtue of the powers given to the Municipal Committee to do so. The two petitions are under section 223‑A of the Government of India Act which is in the following terms :‑ " 223‑A. Every High Court shall have power throughout the territories in relation to which it exercises jurisdic tion to issue to any person or authority including . in appropriate cases any government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them." As mentioned already, petition No. 438 prays for a writ of prohibition, while petition No. 439 of 1954 asks for a writ of certiorari. The learned counsel for the petitioner contended, however, that he did not want to confine his prayers to the writs mentioned in the two petitions and the writ or writs which may be appropriate in the circumstances of the two cases may be granted to the petitioner. The jurisdiction to issue the writs mentioned in the newly inserted section 223‑A of the Government of India Act, except writ of habeas corpus, has been recently conferred on this Court and as the exact scope of these writs is not generally known, it appears desirable to give some idea about them. In none of the statutes applicable to Pakistan, including the Government of India Act 1935, is a definition given of any of these writs and as it is, therefore, necessary to look for the definitions in text‑books dealing with those writs, I think one can do no better than refer to Halsbury's Laws of England. In Halsbury's Laws of England, 1933, Hailsham Edition, Volume 9, these writs are dealt with, and their descriptions are as follows :‑ Writ of Habeas Corpus.‑The writ of habeas corpus ad subjiciendum, which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. It is a prerogative writ by which the King has a right to inquire into the causes for which any of his subjects are deprived of their liberty. By it the High Court, and the judges of that Court at the instance of a subject aggrieved, command the production of that subject, and inquire into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Writ of Mandamus.‑The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior Court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice ; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial and effectual. Writ of prohibition.‑The writ of prohibition is a prerog ative writ, issuing out of the High Court of Justice, and directed to an ecclesiastical or inferior temporal Court, which forbids such Court to continue proceedings therein in excess of its jurisdiction or in contravention of the law of the land. Writ of quo warranto.‑An information in the nature of a quo warranto is the modern form of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined. It also lay in cases of non‑user, abuse, or long neglect of a franchise. Although in form a criminal proceeding, an information in the nature of a quo warranto has long been applied to the mere purpose of trying the civil right to the office or franchise ; and now it is provided by statute that proceedings in quo warranto shall be deemed to be civil proceedings whether for purposes of appeal or otherwise. Writ of certiorari.‑‑The writ of certiorari issues out of a superior Court, and is directed to the Judge or other officer of an inferior Court of record. It requires that the record of the proceedings in some cause or matter depending before such inferior Court shall be transmitted into the superior Court to be there dealt with, in order to insure that the applicant for the‑writ may have the more sure and speedy justice. It may be had in either civil or criminal proceedings. The object of the writ, particularly in civil proceedings, is to give relief from some inconvenience or error supposed, in the particular case, to arise from a matter being disposed of before an inferior Court less capable than the High Court of rendering complete and effectual justice These writs which were formerly issued in England under the Common Law are now regulated by various statutes but that aspect need not be dilated upon. The above definitions will have made it clear that a writ of habeas corpus or of quo warranto cannot be issued in the present case and it will have to be considered if any of the other writs can be issued. It appears to me that almost all the reliefs which may now be given by the issue of one or more of the writs mentioned in section 223‑A of the Government of India Act, 1935, could, before the insertion of that section, have been given by an order of injunction, by reversal or modification of an order in appeal or revision, by transfer of a case to this Court by order under section 491 of the Code of Criminal A Procedure and the power to issue writs has been conferred so that a speedy remedy may be available. If, therefore, grave injustice will result if the jurisdiction to issue the appropriate writ is not exercised, this Court will not decline to issue the appropriate writ simply because the relief claimed could be had by some other proceeding. But it need hardly be said that before a writ is issued the Court has to be satisfied that the case is a fit one for the exercise of the powers conferred by section 223‑A of the Government of India Act, 1935. Keeping the above definitions and considerations in view I will first take up Civil Miscellaneous Petition No. 438 of, 1954. The learned counsel for the petitioner conceded that) section 173 of the Punjab Municipal Act gave the municipal committee the power to withdraw at its discretion the permission given to any person to do any of the things mentioned in clauses (a) to (e) of subsection (1) of that section, but contended that unless a period of six months, were given to the members of the petitioner to get other! accommodation for their business, the removal of the khokhas from their present place would cause inconvenience not only to the members of the petitioner but also to the general public and for that reason a writ of prohibition or mandamus should issue to the Municipal Committee. It appears to me that the appropriate writ in this case will be a writ of mandamus and the question to consider is if the circumstances make the issue of that writ necessary. It is obvious that granting time to a person affected by an order passed under section 173 of the Punjab Municipal Act is not a duty of the Municipal Committee and I, therefore, fail to see how the Municipal Committee can be said to have failed in its duty. Nor do I think is the issue of the writ called for to supply defects of justice, because as far as the Courts are concerned, the term "justice" means the administration of the law of the land, and even if a thing may appear to be unjust in the sense of involving hardship, the Courts cannot consider it to be unjust if the law of the land allows it. If even for the administration of justice by Courts of law the term "justice" were to be considered to be anything other than what the law lays down results may be startling. In cases where the law leaves the decision of any question to the discretion of a Court the Court when exercising its discretion is acting according to law. If Courts were to act on their own views of justice even in cases where the law lays down what is to be~ done in a particular case, they will be as legislators and not merely as interpreters of law Nowhere in subsection (1) of section 173 of the Punjab Municipal Act has it been said that before withdrawing the permission mentioned in subsection (1) of that section the Municipal Committee has to give the party affected by the withdrawal a reasonable time to make some other arrangement, but the learned counsel for the petitioner wanted to support his contention by reference to clause (1) of subsection (2) of section 173 of the Municipal Act, which clause, in my view, can have no manner of application to cases governed by subsection (1). If the relief claimed in this petition had been claimed in a suit for declaration and injunction, no Court, I think, would in face of the powers given to the Municipal Committee by subsection (1) of section 173 of the Punjab Municipal Act, have issued an order of injunction and the petitioner should not be placed in a better position because instead of bringing a suit he has put in a petition under section 223‑A of the Government of India Act, 1935. I am, therefore, of the view that the writ of mandamus or prohibition whichever writ would be the appropriate one to issue in a suitable case of this type should not issue in the present case. I will now address myself to the consideration of Civil Miscellaneous Petition No. 439 of 1954. In this petition the appropriate relief, in my view, could be granted by a writ of certiorari or prohibition to the Court in which the execution of the decree passed against eleven of the members of the petitioner is pending and a writ of mandamus to the Municipal Committee. The question to consider is if this is a fit case in which the prayer of the petitioner that the decree passed against the Municipal Committee, Lyallpur, should not be executed for six months, should be granted. It is not denied that the decree was passed by a Court which had jurisdiction, nor is it denied that the Court in which the execution pro ceedings are pending has jurisdiction to grant the decree‑holder the relief mentioned in the decree. In these circumstances the issues of a writ of certiorari and prohibition to the Court executing the decree is entirely uncalled for. The issue of writ of mandamus also is not indicated because nothing is being done by the Municipal Committee which would justify the issue of such a writ against it. The learned counsel for the petitioner referred to A I R 1950 Bom. 363, A I R 1951 Bom. 440, A I R 1951 Nag. 33 and 56 C W N 452 and contended that the mere fact that a case did not fall strictly within the ambit of the writs mentioned in section 223‑A of the Government of India Act, 1935, did not deprive this Court of the power, to issue directions so that no hardship to the petitioner may result. There are no doubt some remarks in the decisions cited by the learned counsel for the petitioner which would show that even if the writs under consideration in the present cases could not be issued, other orders and directions could be given by the High Court, but in my view those decisions have no application to the present cases. The above decisions were given under section 226 of the Constitution of India which authorises a High Court not only to issue writs under consideration but also to issue directions and orders for' enforcement of any of the rights conferred by part 3 of the Constitution of India and for any other purpose and I am of the view that the scope o~ section 226 of the Constitution of India is to some extent wider than that of section 223‑A of the Government of India Act; 1935. But even if one were to hold that this Court has the power to issue orders oil directions which did not strictly amount to writs mentioned' in section 223‑A of the Government of India Act, I do not think these are appropriate cases in which any order should be passed, because if an order in favour of the petitioner were to be passed it would amount to taking away from the Municipal Committee ‑and the Court in which the proceedings for execution are pending powers given to them by law, doing which will in no sense amount to administering justice according to the law of the land. In view of what I have said above, I would dismiss both the petitions but would leave the parties to bear their S. A. RAHMAN, C. J.‑--I agree with the order of my learned brother, Shabir Ahmad J., which he proposes to pass in Civil Miscellaneous No. 438 and Civil Miscellaneous No. 439 of 1954. In view, however of the importance of the questions involved, I consider it desirable to make some observations of my own. In petition No. 438 of 1954 the New Goal Cloth Market Union Registered, Lyallpur, seeks a writ of prohibition restraining the Municipal Committee, Lyallpur, from disturbing the members of the union from their wooden structures located in Goal Bazar of the city, for the next six months. They have been threatened with ejection by means of notices issued under section 173 of the Punjab Municipal Act. In the second petition a writ of certiorari is asked for against the Senior Civil Judge, Lyallpur, and the Municipal Committee, Lyallpur, in respect of a decree of ejectment passed against eleven members of the petitioning union who carry on their business in wooden structures in Goal Bazar. The decree had been obtained at the instance of some owners of buildings abutting on the bazar and is now in the process of execution. Those owners have not been impleaded as parties to this petition, although it is obvious that their interests would be affected if the petition is allowed to succeed. The subject of writs being one with which counsel in this province are not very familiar, learned counsel for the peti tioners has requested that the petitions should not be held confined to the writs expressly asked for and it is prayed that the appropriate writ may be issued. In the interest of justice this latitude may be permitted to the petitioners in view of the novelty of the subject and if necessary a formal amendment of the petition can be allowed for that purpose. It may be added that the newly enacted section 223‑A of the Constitution Act confers very wide powers on all High Courts to issue writs including those in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. It is clear that there is no question of a writ in the nature of habeas corpus in these two cases. I need not, therefore, say anything about the nature or scope of that writ. A writ of quo warranto would also be inappropriate in these circumstances. I will, therefore, confine my attention to the writs in the nature of mandamus, prohibition and certiorari which appear to have some bearing on the facts of the two cases. As my learned brother has observed with reference to Halsbury's Laws of England that these writs were originally high prerogative writs to which recourse could be had if there was no specific alternative legal remedy quite as efficacious or convenient. It is doubtful if a writ of mandamus could issue except to enjoin a positive act to be done by a person, corporation or any inferior Court relating to his or their office and performable by a public duty. It cannot be issued as a substitute for an injunction, though, as is remarked by an American text‑book writer, Ferris, in his book on Extraordinary Legal Remedies, the rule is not without qualification. Thus it is stated that mandamus is proper to prevent an election board from holding an un authorised election, as mandamus in such a case is the only remedy. Prohibition will not lie, as the action of the board is not judicial, and injunction will not lie as there is no basis for it, according to this American authority. In Manohar Ramkrishana v. G. G. Desai, (A I R 1951 Nag. 33) a Division Bench of the Nagpur High Court held that a writ of certiorari or prohibition cannot issue unless the impugned order is a judicial or a quasi‑judicial one. It was further assumed by the learned Judges that mandamus can only issue for requiring the performance of a positive act. In any case, mandamus is not a writ of right and cannot be issued as a matter of course. As a general rule it is a matter for the discretion of the Court. The writ maybe refused not only upon the merits but also by reason of the special circumstances of the case. The circumstances under which the exercise of this discretion in favour of the petitioners would be proper are summed up in paragraph 1278 et seq of Halsbury's Laws of England, Volume 9, Hailsham Edition. Under the English law the writ cannot be issued against the Crown. For that purpose the appropriate procedure is by way of petition of right, though now it seems the matter has been placed on a different footing by legislation. In like manner, under the English law, servants of the Crown are exempt from the prerogative jurisdiction of the Court. Section 223A of our Constitution, however, declares that in appropriate cases the writs mentioned therein may be issued even against Government or any authority or person and no exception is made in favour of Crown servants. In certain respects, therefore, the powers conferred on High Courts by our Constitution would appear, to be wider than the scope of the writs obtaining under English law. The writs even under that law, it may be noted, have been replaced by orders under the Administration of Justice (Miscellaneous Provisions) Act, 1938. Even so, the decisions under English law will provide valuable guidance for Courts in this country while considering the issue of similar writs. The English authorities make it clear that the Court will not question by mandamus, the honest decision of a tribunal, even though erroneous, in matters within its jurisdiction, and in regard to which it has been entrusted with a discretion. This rule applies not merely to judicial tribunals but to other authorities as well. The Court will not compel any authority to exercise its power which is merely permissive and which does not impose an obligation. There must also be a legal right in the petitioner for a writ of mandamus, to the performance of a legal duty by the party against whom the mandamus is sought. There is the further qualification that the duties must be of a public nature. It will not, accordingly, issue for a private purpose, that is to say, for the enforcement of a merely private right. There is no mention in Halsbury of mandamus issuing to restrain an authority from doing a particular act. The writ of prohibition is issued by a superior Court to an inferior Court, which forbids such Court to continue proceedings therein, in excess of its jurisdiction or in con travention of the laws of the land. As I have observed above, it ordinarily lies only against judicial or quasi‑judicial actions and in cases of necessity only. It is a preventive rather than a remedial or corrective writ. With certain exceptions, however, the issue of the writ of prohibition under English law, though not of course, is of right and not discretionary, and the superior Court cannot refuse to enforce public order in the administration of the law by the denial of a grant of the writ. The writ, however, cannot be claimed as of right unless the defect of jurisdiction is clear, nor where a specific remedy is given by a statute which in effect substitutes the statutory remedy for the remedy by prohibition. Such a right lies not only for excess of or absence of jurisdiction, but also for the contravention of some statute or the principles of the common law; it does not, however, lie to correct then course, practice, or procedure of an inferior tribunal, or a' wrong decision on the merits of proceedings. The superior Court, it is laid down nevertheless, will not be fettered by the fact that an alternative remedy exists, to correct the absence or excess of jurisdiction by way of an appeal. Prohibition, however, will not be granted unless there is a material question involved. The application for a rule of prohibition may be made against the party or the Court to be prohibited, or both, but it is usually the party, and very rarely the Court, that shows cause against the rule. Certiorari lies at common law to remove the proceedings of inferior' Courts or judicial bodies for the purpose of quashing such proceedings where the writ of error did not lie. It does not lie to quash the judgments of inferior‑ Courts of civil jurisdiction. The issue of such a writ is discretionary. Where the judgment of an inferior Court is removed by the writ of certiorari, or by an order in the nature of the writ, into the High Court, that Court acquires power to deal with D such judgment in the same way as it deals with its own judgments. Certiorari lies only in respect of judicial, as distinguished from administrative, acts. Viewed in the light of these observations the two petitions before us do not appear to justify any action on the part of this Court. In respect of the first petition, it is enough to say that section 173 of the Punjab Municipal Act itself vests a discretion in the committee to withdraw any permission it may have given to any person for the erection of a stall, post, etc., in any ‑public street. The committee in the present case has not acted arbitrarily, but only after certain owners of buildings in this public street. had obtained a decree against the committee calling upon it to remove the structures belonging to some eleven members of the petitioning union. They very rightly, in my opinion, decided not to incur further expenditure in useless litigation and gave legal notices for ejectment to the members of the union. There is no question of restraining any excess of jurisdiction in the present case and obviously a writ of prohibition could not issue to the Municipal Committee on the first petition. A more appropriate remedy would be by way of injunction in a suit. This Court would be very reluctant to interfere with the discretion of local authorities conferred on them by law, as such a course would tend to paralyse the working of such local bodies. The order in question in this case is not a judicial or a quasi- judicial order at al. and so a writ of prohibition would be inapt in the circumstances. It is further doubtful whether a writ of mandamus can be issued to restrain the Municipal Committee, as under English law such a writ only enjoins a positive act. In any case, the circumstances brought on the file would not justify the issue of such an order or writ. With regard to the second petition, no case seems to have been made out at all for interference by this Court. It is not contended that the learned Senior Civil judge exceeded his jurisdiction in deciding as he did. The failure of the petitioners to implead the decree‑holders, by itself, amounts to a defect such. as would disentitle the petitioners to any relief. The prayer now is that the execution of the decree may be stayed for a period of six months so that the petitioners may be in a position to shift their business to some other locality. I agree with my learned brother that the writ of certiorari or prohibition is entirely uncalled for on these facts and the issue of a writ of mandamus would also be out of question. I, therefore, agree with my learned brother that the petitions be dismissed but that the parties may be left to bear their own costs. A. H. Petitions dismissed.