Writ of Mandamus — concept of

The concept that a writ of mandamus did not lie to compel the restoration of a former incumbent of an Office unless that was a public Office was relatable to the concept of writ of mandamus as in vogue in England and some other countries. When writ jurisdiction was conferred on the High Courts of Pakistan it was done by inserting section 223-A in the Government of India Act, which served as the constitutional instrument for Pakistan till the framing of the first Constitution 1956 — The scope of writ jurisdiction was not defined and it was to be understood in light of the concept, practice and procedure prevalent in England wherefrom the legislation was borrowed. The result was that different principles which were relatable to the writs in the nature of mandamus, certiorari, etc. became the basis of judgments of the High Court in Pakistan — After the promulgation of 1956 Constitution phraseology of section 223-A mentioned above was incorporated with slight variation in Article 170 of that Constitution — The constitutional position underwent a fundamental change with the framing of 1962 Constitution. Article 98 of that Constitution conferred writ jurisdiction on the Courts, reference to writs of mandamus, certiorari etc was omitted and self-contained provision was enacted. The same phraseology was transposed to Article 199 of the 1973 Constitution and was subsequently borrowed in Azad Jammu and Kashmir when writ jurisdiction was conferred on the Azad Jammu and Kashmir High Court. Muhammad Rashid Chaudhary v. Chairman AKLASC & others 1995 SCR 73 (E)
The effect of incorporation of self-contained provision is that the principles applicable to writs in England which have not been incorporated in the phraseology of the relevant provisions of the Constitution stand discarded. Therefore when a writ petition is brought before a High Court the Court has to decide it in light of the Constitutional provision which confers writ jurisdiction on it without referring to the concept as in vogue in England. Muhammad Rashid Chaudhary v. Chairman AKLASC & others 1995 SCR 73 (F)
Alternate remedy by way of appeal to the Syndicate being available whether writ could lie — Held: The power to quash the result or withdraw a degree is vested in the Syndicate, reconsideration of the case by the same body cannot be termed as adequate — Hence writ maintainable. A.J.K University & others v. Muhammad Malik & others 1995 SCR 231 (B)
Whether a writ lies against a notice? — A writ of prohibition available under sub-clause (I) of clause (A) of S. 44 (2) of the AJK Interim Constitution Act lies before completion of an illegal act – If a notice or letter is issued without lawful authority it can be termed as act done or proceedings taken within the meaning of sub-clause (ii) of clause (A) and declaration that it is of no legal effect can be given. A.J.K University & others v. Muhammad Malik & others 1995 SCR 231 (C)
The petitioners – respondents filed a writ petition in the High Court alleging that the territories known as Northern Areas formed part of Jammu and Kashmir State prior to the partition. After the partition of subcontinent in the year 1947, a liberation movement was launched by the people of the State in consequence of which certain territories of the State were liberated from the subjugation of Hindu Maharaja. An I ndependent State consisting of liberated territories known as Azad Jammu and Kashmir came into existence. However, the administration of Northern Areas was handed over to the Government of Pakistan as a result of an agreement between the Government of Pakistan and the Government of Azad Jammu and Kashmir on 28^th April, 1949. — It was averred further that when the Constitutional Acts known as Azad Jammu and Kashmir Government Act, 1970 and the Azad Jammu and Kashmir Interim Constitution Act, 1974 were promulgated, the agreement dated 28^th April, 1949 came to an end, thus, the administrative control of the Northern Areas should have been given back to the Government of the State of Azad Jammu and Kashmir but it was not done so and these areas remained under the administrative control of the Government of Pakistan in violation of Constitutional provisions contained in the Interim Constitution Act, 1974– It was further the case of the petitioners – respondents that in view of the definition of the expression “State of Jammu and Kashmir” as given in section 2 of the Interim Constitution Act, 1974, Northern Areas are the part of Azad Jammu and Kashmir State, thus, a writ against the Azad Jammu and Kashmir Government and the Government of Pakistan was prayed for. Fedration of Pakistan v. Malik Muhammad Miskeen & others 1995 SCR 43 (A)
A writ of mandamus is of a very high nature — It is issued where there is no other remedy — It enforces some private rights when withheld by a public office and non-compliance is a contempt of Court. Ch. Muhammad Arif v. Azad Govt. & 2 others 2008 SCR 175 (A)