P L D 1963 Supreme Court 203 (PLP)

(f) Writ‑-Quo warranto‑Relief. Relief in quo warranto is confined to (a) issuing an injunc tion to a person holding the office not to act therein, and (b) where necessary, to declare the office to be vacant. Abdul Rashid Advocate Supreme Court instructed by Hussain & Co. Attorneys for Appellant. Respondent No. 1 : Ex‑parte. Ihsanul Haq Advocate Supreme Court instructed by Ejaz Ali Attorney for Respondent No.

2. Date of hearing : 19th February 1963. CORNELIUS, C. J.‑This appeal is, brought by special leave against an order of a Division Bench of the High Court of West Pakistan refusing to the petitioner Masudul Hassan, a Member of the Pind Dadan Khan Town Committee a writ of mandamus addressed to the Collector of the district, to remove forthwith the first respondent Khadim Hussain from the office of a Member of the said Town Committee. The ground upon which the mandamus was sought was that Khadim Hussain had been dismissed from the service of the Pind Dadan Khan Municipal Committee on a charge other than that of inefficiency, viz. of misappropriation, and had thus rendered himself liable to removal under section 25(2) (a) of the Basic Democracies Order, 1959. The disqualification is one specified in paragraph 2 of Part II of the Second Schedule to the said Order read with section 5 of the Elective Bodies (Disqualification) Order 1959. The petition was resisted on the ground that although such an order of dismissal had in fact been made by the President of the said Municipal Committee on the 10th September 1957, which had been acquiesced in by Khadim Hussain through (a) not appealing against it and (b) later accepting an inferior office in the same Municipal Committee, yet the order of dismissal was defective and void in law because the President had acted in excess of his delegated powers which were limited to employees drawing less than Rs.20 p.m. whereas Khadim Hussain's salary was more than Rs.20 p.m. and therefore he could only have been removed under the then existing law by order of the Central Committee. The learned Judges of the Division Bench received evidence in the case and, although the Municipal Committee of Pind Dadan Khan was no party to the petition, they held that at the relevant time, the President did not have the power to dismiss an employee of the status of Khadim Hussain. An express finding was recorded to the effect that the order of dismissal made by the President on the 10th September 1957, against Khadim Husain had been made without jurisdiction, and "hence the order is a nullity in law and is deemed to have never been passed." Leave to appeal was granted to consider the argument that until set aside in accordance with law, the order dismissing Khadim Husain, which he had accepted, must be deemed to stand, and on the face of the matter, it was a circumstance which obliged the removal of Khadim Husain from the membership on the ground of disqualification. In the course of the argument, it caused me considerable concern to find that an order made by an authority of a statutory public corporation such as the Pind Dadan Khan Municipal Committee should have been expressly avoided in a proceeding in which the Municipal Committee was not a necessary party, and had not been impleaded. By declaring the order of dismissal to be null and void, a serious effect has been produced in regard to the working of Municipal Committee, and this has resulted from a side‑wind in a proceeding in which the Municipal Committee is wholly without interest. It is open to question whether it is appropriate that in a proceeding for a writ of mandamus, a finding of this type affecting the validity of an order made by an authority, which was no party to the case, can be permitted. I have, therefore, found it necessary to examine whether it was unavoidable, having regard to the nature of the jurisdiction exercised by the Court, I have come to the conclusion that the order of the High Court must be maintained, on the ground of circumstances casting a doubt upon the validity of the dismissal, without going to the length of declaring it to be null) and void. In the first instance, it seems to me that the writ as prayed was not competent. The principles applicable to a writ of mandamus are well‑known. They are set out in the monograph on the subject of mandamus in the 1Ith volume of Halsbury's Laws of England in the following words :‑ "(i) an applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought. (ii) In order that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposed a legal duty. (iii) It is only in respect of a legal right that mandamus will issue. (iv) The legal right to enforce the performance of a duty must be in the applicant himself. The Court will therefore only enforce the performance of statutory duty by public bodies on the application of a person who can show that he has himself a legal right to insist on such performance." The ground put forward by the petitioner Masudul Hasan was merely that he was himself an elected member and that there was an election impending for the chairmanship of the Town Committee and if Khadim Husain remained as a member, this would be "likely to materially and adversely affect the forth coming election of the Chairman and thereby wrongfully injure the petitioner's right." The interest of the petitioner was at the best of an indirect nature. Merely as a member of the Town Committee, there did not reside in him a legal right to demand that the Collector should remove another member of the o same Committee. There is here no legal and specific right vested in Masudul Hasan to enforce the removal of Khadim Husain, and it seems to me that that was a sufficient ground upon which the writ could have been refused. But, that was not the only relief, which Masudul Hasan could claim. He could have moved for an order in the nature of a writ of quo warranto with equal efficacy. Referring again to the monograph on Crown Proceedings in Volume 11 of Halsbury's Laws of England, the now obsolete writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to enquire by what authority he supported his claim in order that the right to the office may be determined." It was necessary E for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office. Here, the office was that of member of a Town Committee, created by statute, namely, the Basic Democracies Order 1959, and its duties were of a public nature. Khadim Husain was in possession of the office. A private relator (i.e. a petitioner) is competent to apply for an information against a member of a corporation on a ground affecting his individual title, to show by what authority he claimed to exercise his individual functions. All that is necessary in a case of a private petitioner was that he should F have some interest in the election which he impeaches. These conditions appear to be satisfied by Masudul Hasan. Khadim Husain being an office‑holder in a corporation, Masudul Hasan another such office‑holder who has an interest which he has disclosed, namely, the outcome of a forthcoming election for the chairmanship of the Committee, is qualified to move an infor mation against Khadim Husain to show by what authority he claims to be a member. In the process he was entitled to bring to light what was in his opinion a disqualifying circumstance, namely, the earlier dismissal of Khadim Husain from the service of the Municipal Committee for misappropriation. At the same time, the issue of a writ of quo warranto is discretionary, with the Court. It is not a writ of right. Thus, where‑ "the title to a corporate office was in question, the Court, . . . . . . . would not grant leave, to a relator to file a quo warranto information as a matter of course simply because a reasonable doubt as to the legal validity of the title was shown, but the Court would take into consideration the consequences which would be likely to follow should the information be granted, and also all the circumstances of the application." (Halsbury, monograph cited). One of the relevant circumstances, placed before the Division Bench of the High Court, on behalf of both the respondents was that the order of dismissal which was relied upon as a, disqualification was of doubtful validity, i.e. that the President of the Committee who made the order was not empowered to make it. A binding decision to that effect could only have been recorded, in my opinion, in proceedings between Khadim Husain and the Municipal Committee, and this is the more so in view of Khadim Husain's acceptance of his dismissal at the hands of the President, by not appealing against it and by subsequently accepting an inferior position as an employee of the same Committee. It is well‑settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to retention of the office H in question. But where a private petitioner seeks the writ, the burden of proving that the respondent does not have the right to hold such office is placed upon the petitioner. On the evidence adduced before the High Court, it was clear that there was left a reasonable doubt as to the validity of the order of dismissal, and although on the face of it, it had the quality and effect of dismissing Khadim Husain from his post, nevertheless the case was not one in which the Court would exercise its power of granting relief which is confined to‑-- (a) issuing an injunction to a person holding the office not to act therein, and (b) where necessary, to declare the office to be vacant. Therefore, it seems to me that even if the case had been dealt with as if the prayer were for a writ of quo warranto the petition was liable to be dismissed on the ground that the petitioner had failed to establish beyond reasonable doubt that Khadim Hussain was disqualified from being a member. I would therefore dismiss this appeal, but as I find that the case was decided in the High Court on a basis other than that which was appropriate to the case, I would leave the parties to bear their own costs. S. A. RAHMAN, J.‑I agree and have nothing to add. FAZLE‑AKBAR, J.‑I agree that this appeal should be dis missed. It is well settled `that there must exist a legal right in the person seeking a writ of mandamus to insist upon a clear duty being performed by some public officer or authority in respect of that right.' But no such right has been asserted in the petition for writ. It has been merely suggested in the petition that illegal appointment of the respondent Khadim Hussain as a. member of the Town Committee might affect the chance ‑of his election as Chairman of that Committee. The petitioner has at the most a mere chance of being elected as a Chairman. It is however, not the appellant's case that by the appointment of Khadim Hussain his legal and specific right has been infringed. A mere possibility of his being defeated in the election of Chairman is a very remote consequence of the alleged illegal appointment and therefore, cannot be regarded as a proper ground for a writ of mandamus. I fully agree with the Chief Justice that the only suitable writ which could be asked for in such a case was a writ in the nature of quo warranto challenging the validity of appointment of the respondent Khadim Hussain. This view also finds support from Rex v. Speyer ((1916) 1 K B 595). In the above case it was held that a private relator could maintain an application for a writ of quo warranto challenging the validity of appointments of Privy Councillors on public grounds. But here no such case has been made out in the petition. If proper grounds had been laid in the petition and the petitioner had asked for a writ of Information in the nature of quo warranto against the appointed person namely, Khadim Hussain, the latter would have been required to disclose under what warrant he was holding the office of a member of the Union Committee. But as already stated in this case, the application is not for the issue of a writ of quo warranto. In view of the above findings it is not at all necessary to consider the question whether the respondent Khadim Hussain was subject to a disqualification at the time of his appointment as a member of the Town Committee and I therefore, do not wish to record any finding on this point. This appeal, therefore, must be dismissed but without any order as to cost. A. H. Appeal dismissed.