P L D 1960 (W (PLP)

[In England, however, a writ of mandamus cannot be issued against the Crown]. Pakistan v. Mehrajuddin P L D 1959 S C (Pak.) 147 and Yousuf Ali Chowdhury and others v. The Province of East Pakistan P L D 1959 S C (Pak.) 467 ref. Z. H. Lari for Petitioner. Khalid Ishaque A. A. G. for Respondent No.

1. Sharifuddin for Respondent No.

2. Date of hearing : 2nd November 1959. S. A. MAHMOOD, J.‑The question referred to the Full Bench is whether under subsection (4) of section 2 of the Laws (Continu ance in Force) Order, 1958 a petition for mandamus lies against the Provincial Government.

2. In section 223‑A of the Government of India Act, 1935, and in Article 170 of the Constitution of Islamic Republic of Pakistan, it was specifically provided that "the High Courts shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibi tion, quo warranto and certiorari. The Constitution was abrogated, and the Laws (Continuance in Force) Order, 195 , came into force with effect from the 7th October 1958. Subsection (4) of section 2 of this Order provides that the Supreme Court and the High Court shall have power to issue the writs of habeas corpus, mandamus,, prohibition, quo warranto and certiorari. The words "including in appropriate cases any Government" were omitted. It is well established in England that a writ of mandamus cannot be issued against the Crown. It was also decided by the Supreme ~C Court in Pakistan v. Mehrajuddin (P L D 1959 S C (Pak.) 147) that in determining the principles governing the issue of writs, guidance should be sought from the principles obtaining in England and America. As a writ of mandamus could not issue against the Crown in England and the words "including in appropriate cases any Government" were omitted in section 2 (4) of the Laws (Continuance in Force) Order, 1958, the question came to be referred to a Full Bench in writ petition No. 264 of 1958.

3. Mr. Z. H. Lari, who appeared for the petitioner, Mr. Sharifuddin, who appeared for respondent No. 2 in the writ petition and Mr. Khalid Ishaque, Additional Advocate‑General, who appeared for the State concede that the High Court (including the Supreme Court) has the power under subsection (4) of section 2 of the Order to issue a writ of mandamus to the Government. The power, therefore, of this Court to issue a writ of mandamus was not challenged before us. Our attention has also been drawn by Mr. Sharifuddin to the decision of the Supreme Court of Pakistan in Yousuf Ali Chowdhry and others v. The Province of East Pakistan (P L D 1959 S C (Pak.) 467) in which a writ of mandamus, as prayed for, was issued on the Province of East Pakistan and the Secretary of Finance in the Revenue Department directing them ,not to take possession of the petitioner's tepakhola gohatta and a daily Bazar in pursuance of a notification published in the Dacca Gazette Extraordinary. Though the question now before the Full Bench was not specifically raised before the learned Judges of the Supreme Court, and was not discussed by their Lordships, we presume that the learned Judges issued the writ of mandamus to the Government of East Pakistan as they were satisfied that they had the power. The power of the High Court to issue writs is similar to and co extensive with the power of the Supreme Court under subsection (4) I of section 2 of the Laws (Continuance in Force) Order, 1958. It is also not contested before us by the learned Additional Advocate General, appearing for the State, that the Supreme Court and the High Courts have this power. We, therefore, do not consider it necessary to examine this question at length. We hold that the High Courts have the power to issue a writ of mandamus to the Government under subsection (4) of section 2 of the Laws (Continuance in Force) Order. The answer to the question referred to the Full Bench, therefore, is in the affirmative. A. H. Reference answered.