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Judgment
Khan, J.—These four appeals arise out of a common judgement and are disposed of by a common judgement as identical questions of law
and facts are involved. The appeals raise a substantial question of law Whether the writ court, in exercise of its extraordinary jurisdiction can issue
a mandamus or for that matter any other writ or direction which has the consequence of negating the decree passed by this court on its original
side. The issue involves a survey of the boundaries of power conferred on this court under Article 226 of the constitution.
The Case has a chequered history. It was some time in 1959 that compartment No. 37Sindh Range was leased out to M/s Haji Abdul Aziz and
Abdul Rashid for an amount of Rs. 7,35,141/. A leaseagreement was executed between the Forest Department and the aforesaid two persons on
November 26,1959. It contained an arbitration clause and prohibited the lessees from transferring their rights or liabilities under the agreement to
any one without previous sanction of the competent authority sanctioning the lease.
It appears that during the currency of the lease, M/s Abdul Aziz and Abdul Rashid entered into partnership with M/s Ali Mohd Sheikh, Ghulam
Rasool, Abdul Rehman, Ghulam Mehd, Abdul Majid and Mst. Amina Begum to constitute a firm called ""M/s Eastern Forest Company."" The goal
of the partnership was to execute the lease afore said which was in fact worked out by all the partners to the notice and knowledge of the Forest
Deptt. It also transpires that parteners of M/s Eastern Forest Company fell out after sometime resulting in the dissolution of the partnership and
when an outstanding royalty amount of Rs. 1,34,5241 was sought to be recovered some of the legal representatives of one of deceased lessee
Haji Abdul Aziz filed Arbitration application No; 59/1967 in this court culminating in appointment of the then CCF, Mr. G.A. Naqashbandi as
arbitrator. He filed an award on Aug. 11,1973 fixing liability on the firm M/s Eastern Forest Company. The petitioners of arbitration application
were allowed to go scot free. The award was thereafter made rule of the court on Oct. 23,1974. An appeal was filed against the decree by the
State which was dismissed on May 31,1985 for its failure to object to award under sections 30/33 of the Act.
Respondents who are the L.R.S of, partners of Eastern Forest Company, other than Haji Abdul Aziz and Abdul Rashid, remained on the fence
watching the fate of arbitration proceedings and eventually filed writ petitions in 1975 seeking mandamus to forestall official respondents therein
including the Collector, Forest Recovery from recovering the outstanding royalty amount as arrears of land revenue and from issuing a distress
warrant of attaching the property of the writ petitioners. The case set up was that since writ petitioners were neither party to the lease agreement
nor to the arbitration proceedings, they could not be bound by the award and no liability fastened on them. The contention prevailed with the
learned Single Judge who allowed the writ petitions and quashed the recovery proceedings against the writ petitioners directing that ""the
outstanding royalty amount should not be recovered from them in pursuance of the decree of this court, by which award dated Aug. 11,1974 had
been made a rule of the court."" He also restrained the collector from taking steps to recover the outstanding amount from the writ petitioners under
the provisions of LandRevenue Act but left the Stateappellant free to seek appropriate remedy against the writ petitioners for recovery of the
amount in question,
The State is in appeal before us and questions the very jurisidiction of the learned Single Judge to issue the writ and directions on the ground that
he had neither any competence to review or subtitute the findings of fact recorded by the competent forums nor any authority to exercise the
extraordinary writ jurisdiction to set at naught the legal process climaxed by the judgement and decree passed by this court on Oct. 23, 1974 and
affirmed in appeal on May 31,1985.
As already noticed, the matter raises a very interesting and significant question which touches the very roots of writ jurisdiction and its corelation
with the court's original jurisdiction. Is writ jurisdiction all pervasive to bring within its sweep matters that stand determined in the allied jurisdiction
by the court? Notwithstanding the vastness of the power can it be overstretched to overturn the otherwise established legal proceess and in
common understanding can Judge of coordinate jurisdiction overrule each other? Can an authority engaged in enforcing the decree and order of
this court be restrained from so doing by a writ of mandamus? All this and more falls for consideration and determination in the controversy raised
before us.
Considering the importance of the issues raised, a brief reference to the Contours of Article 226 of the constitution would be in order. It would
be pointless to delve deep into the origin of various writs from the English Law. Suffice it to spy the Article confers a vast power on every High
Court to issue writs mentioned there into any person or authority, including in appropriate cases, any Govt. and to pass any order or direction for
enforcement of any of the fundamental rights conferred by partIII of the constitution or ""for any other purpose"" i.e. for enforcement of any other
legal right. It is true that the extensive power is vested in the High Court, but it is not unbridled. It is required to be exercised with responsibility and
circumspection and is governed by the well established principles incorporating some self imposed limitations. Some of these require that the writ
court would not allow itself to be turned into a court of appeal of revision to review findings of fact recorded by competent forums or even to
correct minor errors which may not occasion any injustice. The Court would also not intervene where normal remedies provided by law are
effeicacious and acequate. In other words, the extraordinary power is not meant to be exercised to supersede established legal remedies unless
shown deficient or ineffectual. Dealing with this aspect of matter, in AIR 1955 SC : 425 the Supreme Court observed :
Though the High Court has vast powers, but that is not to say that jurisdiction will be exercised whenever there is an error of law. The High Court
should not act as a court of appeal. Its powers are purely discretionary and though no limits can be placed upon that discretion, it must be
exercised along recognised limits and one of the limitations imposed is that it will not act as a court of appeal or revision to set right mere errors of
law which do not occassion any injustice.
Of the five writs, we are only concerned with Certiorari and Mandamus in the present case to examine whether the LD Single Judge could issue
any one of these in the facts and circumstances of the case. It is by now elementary that Certiorari is issued to inferior courts. Tri bunals or
authorises to transmit record of proceedings pending with them for scrutiny of the High Court and if necessary to quash the same. It is normally
issued when inferior authorities act in excess of their legal authority and commit errors of jurisdiction apparent on the face of record. In other
words, the Certiorari lies where there is a defect of jurisdiction of the principles of natural justice.
Similarly, the Mandamus lies to secure performance of a public or statutory duty in the performance of which applicant must have a sufficient
legal interest. It is a command directing a person to do some public or statutory duty cast on him by virtue of his office or under the statute The
duly sought to be enforced must be duty of public nature i.e. it must be created by the provisions of Constitution or a statute or some rule of
common law and must be an imperative duty and not a discretionary one. This writ may be necessary adjunct of Certiorari, but it can't issue to
compel performance by an authority of an act contrary to law or to enforce a duty which corresponds to a private right or performance where of is
discretionary in nature.
The purpose according to Halsbury's Laws of England is to remedy defects of justice and to do justice in all cases where there is a specific
legal right and no specific legal remedy for enforcing such right. It may also issue in exceptional cases even in the face of any alternative legal
remedy, but that is be sides the point. Summing up the nature of the Mandamus, the Supreme Court bad this to say in comptroller and Audit
General Vs KS Jagan Nathan (AIR 1987 SC 537):
There is thus no doubt that the High Courts in India exercising their jurisdiction under Art 226 have the power to issue a writ of Mandamus or a
writ in the nature of mandamus or to pass orders and give necessary directors where the Govt. or a public authority has failed to exercise or has
wrongly exercised the discretion conferred upon it by a statute or a rule of a policy decision of the Govt. or has exercised such discretion malafide
or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring
such discretion or the policy for impl s mentation of which such discretion has been conferred. In all such cases and in any other fit and proper
case, a High Court can in the exercise of the jurisdiction under Art. 226, issue a writ of mandamus or pass orders and give diseretion to compel the
performance in a proper and lawful manner of the discretion conferred upon the Govt. or a public authority and in a proper case, in order to
prevent injustice resulting to concerned parties the court may itself pass an order or given directions which the Govt. or the public authority should
have passed or given had it properly and lawfully exercised its discretion.
Given regard to this legal position, it remains to be seen whether the learned Single Judge could quash the recovery proceedings initiated by the
Collector in execution of the decree passed by this court and restrain him to realise the outstanding royalty amount as a consequence thereof. We
have no doubt in our mind that the Ld. Judge has overstepped his jurisdiction in the matter, and we have reasons to say so. It cannot be disputed
or denied that the decree passed by this court had assumed finality and it could be set aside or modified only by taking recourse to available
appropriate legal remedy. It could in case be upset by the writ court in exercise of extra ordinary writ jurisdiction for that would in effect amount to
two courts of coordinate jurisdiction over ruling each other. To put it differently even assuming that the controversial award could not be held
binding on the respondent writ petitioners, as it was passed at their back, it survived in law when it was made rule of the court and affirmed in
appeal by this court. The recovery proceedings initiated by Collector were only in execution and implementation of the decree passed by this
Court. Therefore, no duty, much less public or statutory duty, was cast on the collector to desist from taking the recovery proceedings against the
judgment debtors. If anything, he was duty bound to implement the decree of this court and could not be restrained from performing the lawful duty
by a mandamus. Nor would certaiorari lie in the circumstances as it was not anybody's case that recovery proceedings suffered from any error of
law and want or excess of jurisdiction. As such, there was no occassion to quash the recovery proceedings by resort to a roving inquiry and
examination of the award which could be challenged in time, through the mechanism provided in the Arbitration Act. The writ jurisdiction is after all
an equitable and discretionary jurisdiction. It is not liable to be exercised in favour of those whose conduct leaves much to be derived. One fails to
understand as to what prevented the fence sitters (writ petitioners) from seeking appropriate available remedy in time, if they felt aggrieved. Even
the Ld. Single Judge has found them having derived the benefit of the Forest lease. Should they have been allowed to get away with the benefit
inspite of their failure, to seek redressal of their grievance through established available remedies. They never deserved to be granted any relief
even in equity, more so at the cost of established legal procedure and remedy as the writ jurisdiction is not meant to supersede the established legal
remedies. It would be a sad day if it is overstretched to over ride states and to short circuit the normal lega process. Therefore, in our view, it was
not the proper exercise of jurisdiction by the Ld. Single Judge to have issued the impugned writ in the facts and circumstances of the case. We also
notice that appellant state had challenged the maintainability of the writ petitions in its reply which has not been considered by him.
In the premises, we hold that a writ court has no jurisdiction to issue any writ, order or direction in exercise of its power under Art, 226 of the
constitution which has the consequence of upsetting of or overturning the judgement or decree passed by a Judge of coordinate jurisdiction the
original side. Nor would the Mandamus lie to stop the implementation of such decree by a public authority. We accordingly allow these appeals
and set aside the judgment impugned.