1992 PLP 2424 (MLD)

In Mohi Chandra v. Secy., Local Self‑Government of Assam (AIR 1953 Assam 12), it was held that when the title to corporate office is in question, the Court will not grant leave to relator to file quo warranto information as a matter of course simply because a reasonable doubt as to the legal validity of the title is shown, but the Court will take into consideration the consequences which would be likely to follow should the information be granted, and also all the circumstances of the application. It was further held that where the petitioner did not enjoy the confidence of the Local Board and the Board did not regard him as a fit person to hold the office of the Chairman, the quo warranto was refused because that will disturb the peace and quiet of the Local Board; in the aforesaid view, the writ was dismissed. In the other case cited by Kh. Noor‑ul‑Amin, Mahabir Prasax Sharma v. Prafulla Chandra Ghose (AIR 1969 Cal. 198), while rejecting the application for a quo warranto writ, it was laid down that for the issue of rule nisi it is not enough that controversial questions relating to the Constitution have been raised by the petitioner. The test was whether arguable issues have been raised by the petitioner." The learned counsel for the petitioner Mr. Ghulam Mustafa Mughal has referred me to an important observation of this Court in Ch. Muhammad Anwar v. Ch. Muhammad Rashid (PLD 1987 SC (AJ&K) 41) that a writ of quo warranto is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach. While making this observation this Court followed Dr. Kamal Hussain and others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42). In light of these principles it can be safely ruled that this Court has the power to examine the question whether the rule nisi issued in the present case against a Judge of the High Court is based on cogent grounds which make out a prima facie case, and has not been issued as a matter of course without proper application of mind: Coming to the merits of the case the‑learned Judges in the High Court noticed the contentions raised on behalf of Sain Mullah Lone in paragraphs 2 and 3 of their order and then proceeded to conclude as follows:‑ "We have attended the points raised in the petition. These are vital points of public importance and Constitutional nature, as such it is deemed expedient to admit the petition for regular hearing. Notice shall issue to the respondent. Paragraphs 2 and 3 are not‑ lengthy and can be reproduced:‑ "

2. It was alleged that the petitioner is a practising lawyer at Muzaffarabad. Respondent No.2 was appointed Judge of the High Court vide Notification issued on May 5, 1991. At the relevant time, there was no vacant post in the High Court for such appointment. The post was, created subsequently on May 30, 1991, as such the recommendation, the advice of the Council and the appointment of respondent No.2 was violative of the Constitution. It was further alleged that respondent No.2 was not holding a valid licence of Pleadership and` Advocacy in Azad Jammu and Kashmir. The said licence of pleadership and Advocacy was not issued by the competent authority and the same was not supported by valid documents in the light of the provisions of rules holding field at the relevant time. Thus, enrolment of respondent No.2 as pleader and Advocate was void ab initio. On that premises, appointment of respondent No.2 as Judge High Court was equally void.

3. It was further alleged that respondent No.2 travelled on Indian passport and Pakistan Visa. He surrendered the same in Azad Kashmir on the condition that he would not claim any privilege available to a refugee or service in Azad Kashmir. Moreover, respondent No.2 being a foreigner, was not eligible for his elevation as Judge of the High Court. The learned counsel cited an unreported case of the Supreme Court, titled "Ghulam Mustafa Mughal and another v. Azad Government and others 1992 MLD 2083 and an unreported case of this Court, title "Faiz Muhammad and others v. Imam Din" decided on May 22, 1985 in support of his aforesaid contentions:" I have heard the learned counsel for the parties at some length on the question whether the order of the High Court from which appeal is sought discloses a prima facie case or not. In light of the arguments I am of the view that the following submissions of Mr. Ghulam Mustafa Mughal, prima facie, have force: (i) It was alleged before the High Court that the post against which Syed Manzoor Hussain Gillani was to draw salary was created on May 30, 1991 while the appointment had already been made on 5th of May, 1991. It was, therefore, contended that the advice of the Council and the appointment of the petitioner were "violative of the Constitution", but, prima facie, section 43 does not refer to the existence of a budget provision as a condition precedent for the appointment of a Judge of the High Court: (ii) It was contended that the Pleadership and Advocacy Licences issued in favour of Syed Manzoor Hussain Gillani were not issued by the competent authority and were not supported by valid documents. The fact is not denied that Mr. Gillani is a Law Graduate. The documents filed in this Court show that all licences at the relevant time were issued by the Chief Justice.‑alone. The licences referred to above were issued some 16/17 years ago and before his appointment as Judge Syed Manzoor Hussain Gillani practised as an Advocate of the High Court for more than 10 years which is the requirement of law. The argument, therefore, is that the appointment of a Judge cannot be challenged by re‑opening the validity or otherwise of the licences issued under the administrative authority of the High Court with which concerned Advocates are not associated; (iii) The contention contained in paragraph 3 reproduced above that Syed Manzoor Hussain Gillani had undertaken that he would not claim any service in A.K. is on the face of it a misstatement because the relevant document which is in the shape of Government Order only lays down the condition that he will not claim any right as a refugee; (iv) The assertion made before the High Court that Syed Manzoor Hussain Gillani was foreigner and was not eligible for appointment as a Judge runs counter to the accepted position that Mr. Manzoor Hussain Gillani was a State Subject residing in Occupied Kashmir and after travelling on Indian Passport surrendered it in Azad Jammu and Kashmir. It is also admitted that a State Subject was duly issued to him on 30th of September, 1976, at Muzaffarabad. (v) According to the certified copies filed in this Court the petitioner acting as Judge of the High Court wrote an order on July 7, 1992 in consequence of which a notice of contempt was issued by the learned Chief Justice on 28‑7‑1992 to Mr. Sain Mullah Lone. Mr. Lone filed the quo warranto writ immediately afterwards. Since the learned Chief Justice was member of the Bench the High Court should have applied mind with more care because it might have been just a case of counterblast." Therefore, I am of the view that the question whether, keeping in view that a high Constitutional office is involved, the rule nisi in the case has been issued on the basis of cogent reasons showing, prima facie, that appointment may be invalid, or has been issued somewhat as a matter of course requires to be examined in detail. I, therefore, grant leave to appeal. Security Rs.1,

000. For the same reasons it will be in the interest of justice that the proceedings in the High Court may be stayed till the disposal of the appeal by this Court. A.A./351/SCA Leave granted.