1995 PLP 1361 (MLD)

D. For that as a prima facie proof in support of petitioner's contentions a copy of amendment has been placed on record which shows that respondent No. 1 is not qualified for the seat in view of the provisions of Act VII of 1987. E. For that in view of the reasons stated above, acceptance of the Nomination Papers and subsequently declaring respondent No. 1 as a member of the Legislative Assembly against Reserved Seats are illegal and unconstitutional actions. That respondent No. 1 is, therefore, illegally occupying the seat of a member in the Legislative Assembly of Azad Jammu and Kashmir and Office of the Prime Minister of Azad Government of the State of Jammu and Kashmir and exercising the powers without any lawful authority and jurisdiction:'

6. Raja Muhammad Hanif Khan submitted that none of these grounds disclosed material facts in support of the challenge to the membership of appellant No.

2. He submitted that the only ground relating to the membership of the Assembly is ground `E' but all what is stated therein is that the election against the reserved seats is illegal and unconstitutional without specifying as to how it could be termed as illegal or unconstitutional. The learned counsel submitted that para. 8 of the writ petition also relates to the point in dispute. He submitted that all the reasons should have been incorporated in paragraph 14 of the writ petition which deals with the grounds of attack, but even if other averments are considered the requirement laid down in the previous judgment that material facts should be pleaded is not fulfilled. He submitted that para. 8 of the writ petition also does not disclose any cogent objection. Paragraph 8 reads as follows:‑‑‑ "That respondent No. 1 is neither an Aalim nor a Shaikh within the meaning of the law on the subject and he was not even himself clear as to which position he could claim, i.e., an Aalim or a Shaikh, therefore, he filed his nomination papers for both seats whereas in fact he was not qualified for any one of the seats in either of the two capacities. Copy of nomination paper Annexure `B'. He is not educated in any relevant institution and has not prescribed qualification. He does not belong to Mushaikh family: In Indo‑Pakistan and Azad Jammu and Kashmir Mushaikh have a special significance and respondent No. 1 does not have the position of a Shaikh in that significance:'

7. We may point out that the previous writ petition filed by Kh. Noor‑ul‑ Amin had been mainly filed to challenge the basic changes in the structure of the Azad Jammu and Kashmir Interim Constitution Act and election of appellant No: 2 was only challenged in an insignificant way. In the whole petition the only averment relating to the election of appellant No. 2 against the reserved seat was to the following effect:‑‑‑ "(vii) that the respondent No. 1 is alternatively not even legally qualified or eligible to be elected on the seat reserved for a Member of Muslim clergy." It is in light of this averment that this Court decided in the previous judgment that material facts had not been pleaded as to justify the admission of the writ petition for regular hearing.

8. The learned counsel for the respondent Ch. Muhammad Ibrahim Zia contended that an averment made in a writ petition cannot be kept out of consideration on the ground that it is mentioned in a wrong place. He submitted that it is true that it would have been better if all the grounds should have been incorporated in para. 14 but if anything has been pleaded in the other paragraphs of the writ petition the same cannot be kept out of consideration. In our view this submission is plainly correct.

9. Ch. Muhammad Ibrahim Zia submitted that relevant provisions relating to the election of the seat under dispute are laid down in section 22 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and subsection (5) of section? of the Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970. The Constitutional provision lays down that one of the members of the Assembly "shall be from amongst the "Ulema‑e‑Islam or Mushaikh" and well‑versed with teachings of Islam". In the Legislative Assembly Act the following explanation is relevant:‑‑‑ "`Aalim' or 'Shaikh' means a Muslim scholar with high qualification in religious education or specialized knowledge in `Fiqah', `Tafseer' and `Hadith' to his credit and engaged for at least ten years in dissemination or preaching of these subjects either as `Aalim‑e‑Din' or 'Shaikh'." He submitted that paragraph 8 reproduced above raises the point that the appellant is not educated in any relevant institution and does not have any religious qualification. He submitted that this ground is relatable to the words "a Muslim scholar with high qualification in religious education". He submitted that high qualification in religious education can be acquired from a relevant institution and there should be some proof of qualification. He then referred us to paras. 9,10 and 11 of the writ petition which are to the following effect:‑‑‑ "(9) That the Election Commissioner also failed to identify the correct position of respondent No. l, i.e., whether he is an Aalim or a Shaikh. A copy of the Notification of Election Commissioner is enclosed as Annexure `C'. (10) That respondent No. 1 submitted an affidavit alongwith his nomination papers and he provided no further proof supporting his eligibility for the seat. Copy of affidavit is enclosed as Annexure `D'. The plain reading of the nomination papers and the Annexed Affidavit do not show that he was in any way qualified for the seat. The word `qualification' used by the legislature is also significant. It denotes that a person should have an accepted and certified position in the relevant field. The mere knowledge of an individual on a subject without recognition by an established institution does not make a person qualified. By submission of a person affidavit everybody can declare himself qualified which evidently is not the object of the legislature. (11) That the purpose of adding the special seat of technocrat and Aalim or Shaikh was to hake provision for the membership of persons who are devoted to a profession as technocrat or in matter of research as an Aalim or belonis to class of Mushaikh. These seats were not in any way meant for professional politicians like respondent No. l. He could only contest the election against any of the other 10 seats. He cannot be accepted as a person engaged in dissemination or preaching as an Aalim or Shaikh nor he is in any sense a recognised scholar."

10. In light of these averments he submitted that the following points were clearly raised:‑‑‑ (i) That the appellant does not have "any qualification" in religious education. (ii) It is necessary that a member to be elected against the seat under dispute must be from among the Ulema‑e‑Din or Mushaikh. Thus, a person who is well‑versed with the teachings of Islam but is not from among the Ulema‑e‑Din or Mushaikh he shall not be eligible to contest the disputed, seat. The appellant does not belong to the said class. (iii) In the explanation the requirement is not that he should have been engaged for at least ten years in dissemination or preaching of the subjects of "Fiqah", "Tafseer" and "Hadith" but the requirement is that he should have been engaged in dissemination or preaching of the subjects either as "Aalim" or "Sheikh".

11. It was submitted by Ch. Muhammad Ibrahim Zia that a person who has engaged himself in the discrimination or preaching as aforesaid as politician and not as one of "Ulema‑e‑Din or Mushaikh" is not qualified to be elected against the reserved seat under dispute. It was submitted by him that in the affidavit submitted by the appellant it is not claimed that the said appellant belongs to the class of "Mushaikh" or "Ulema‑e‑Din".

12. In our opinion in presence of the averments reproduced above it cannot be said that material facts have not been pleaded. We axe also of the view that the points raised in the writ petition are such that they require detailed examination and the High Court was therefore right in admitting the writ petition for regular hearing. We do not want to go into a detailed analysis because basically it is for the High Court to form its opinion one way or the other on the merits of the case. Admission of a writ petition only shows that a prima facie case was made out and it does not mean that argued points have been accepted. In our view the submissions made before us run counter to the principle of law which we have laid down in respect of appeals against admission orders in Azad Government v. Sahibzada Ishaq Zafar 1994 SCMR

323. The relevant portion is as under:‑‑‑ "We have given our due consideration to the arguments raised at Bar. As has already been stated, the present appeal has been preferred against the order of the High Court dated 29‑12‑1993, whereby the writ petition filed by respondent No. 1 was admitted for regular hearing; the impugned order was an ex parte order and, thus, the documents brought on the record placed before this Court were not placed before the High Court. It is evident from the arguments advanced by the learned counsel for the parties that the Superior Courts of India and Pakistan rarely interfere in the order of an admission of writ petition; none of the counsel for the parties could cite any instance from Pakistan or Indian jurisdiction showing that the Supreme Court interfered in an order of the High Court admitting a writ petition for regular hearing. Some of the cases of this Court, i.e., Kh. Noor‑ul‑Amin v. Sardar Muhammad Abdul Qayyum Khan 1991 MLD 2658 and Syed Manzoor Hussain Gillani v. Sain Mullah 1992 MLD 2424, referred to above, were relied upon in support of the contention that this Court has been entertaining appeals at the stage of the admission of the writ petitions for regular hearing. However, it may be stated that this Court has only interfered in such cases where there was total lack of jurisdiction of the High Court regarding the subject‑matter of the writ petition or an order was passed in disregard of law which is apparent on the face of record and a deep scrutiny of the controversial factual or legal points was not required. Thus, the interference in an ex parte order of admission of a writ petition is not a rule but an exception. A reference may be made to an unreported case of this Court entitled Azad Government of the State of Jammu and Kashmir v. Chairman, Mirpur Development Authority, Mirpur (Civil Appeal No. 3 of 1994, decided on 25‑1‑1994), wherein an appeal was preferred against the order of admission of writ petition to this Court and the Court observed as under:‑‑‑ It may be emphasised here that this Court sitting as a Court of appeal on the order passed by the High Court would interfere in an order of admission of a writ petition only when it is shown to be clearly violative of Constitutional or other legal provisions on a cursory view of the matter and not in case requiring deep and cumbersome appreciation of the question of law or fact: otherwise it would tantamount to pre‑empt the jurisdiction of the High Court. It may be observed that a writ petition is generally admitted ex parte for regular hearing and, thus, the view taken by the High Court at the admission stage is of tentative nature. The opposite‑party has right to question the competency of the writ petition when it appears in the Court and files the written statement. Thus, it is not desirable to interfere with the order of High Court at initial stage as a matter of routine.' It is evident from the above extract that if the question involved in a writ petition needs deep scrutiny of factual or legal aspects of the case, this Court would not interfere in appeal and would stay its hands; because primarily it is for the High Court to draw conclusion on controversial issues of fact and law in view of the record before it and to resolve the controversial points in view of the material placed on the record. Needless to say, this Court has not original jurisdiction in matter of writ and, thus, appeal against an order of admission of a writ petition would only lie if a case falls within the ambit of the principle laid down in the above‑referred case."

13. Raja Muhammad Hanif Khan vehemently contended that the writ petition filed in the High Court suffered from laches and should have been dismissed on that count. The point that there was inordinate delay in filing of the writ petition was also raised in Sahibzada Ishaq War's case and this point was repelled by making the observation:‑‑‑ "Now, the next question arises as to whether the instant case satisfies the condition precedent for interfering in the impugned order at this stage, i.e., whether there is total lack of jurisdiction or flagrant disregard of law which is apparent on the face of record and is ascertainable on the cursory view of the matter without indulging an extensive exercise in that regard. It has been contended by the learned counsel for the appellants, Mr. S.M. War, that the writ petition was filed after the lapse of a period of more than two years and, thus, it entailed dismissal on this sole ground, and that there are circumstances which are indicative of the fact that the petitioner -respondent acquiesced in the relevant proceedings and, the writ petition was hit by the principle of estoppel. It may be stated here that no authority has been cited by Mr. S.M. War in support of the proposition that a writ of quo warranto is not maintainable if there is inordinate delay. On the other hand, the learned counsel for the respondent has cited a number of authorities, referred to above, which show that a writ of quo warranto cannot be dismissed merely on the ground of laches or, in other words, because it was filed after an expiry of a considerable time, reckoned from the date of accrual of cause of action. It may be observed that in Manzoor Hussain Gillani's case, referred to above, which was a case of writ of quo warranto, this Court considered the delay as a circumstance which lent support to the contention that the writ petition was actuated by malice. However, it was opined in that case, too, that mere delay in filing a writ of quo warranto is not fatal to it. The learned counsel for the petitioner- respondent has cited, at least, two recent decisions from the Supreme Court of Pakistan wherein it has been held that mere delay is not fatal to a writ of quo warranto, especially so when the interpretation of the provisions of the Constitution is involved. The question as to whether the delay in the instant case can be read as a supportive evidence to draw an inference of mala fide, cannot be gone into at this stage in view of the circumstances of this case; because it is to be ascertained after the resolution of controversial facts as to whether the respondent was reluctant to administer oath of office to the members of the Assembly due to mala fides. The learned counsel for the respondent, Sardar Rafique Mahmood Khan, has relied on the authorities, referred to above, that there is no estoppel by acquiescence in case of a writ of quo warranto; the learned counsel has also cited authorities to the effect that in case of a writ of quo warranto, there is always a `continuing wrong' and, thus, delay is not fatal, irrespective of the validity of arguments advanced by the counsel for respondent, the matter does not fall within the ambit of `apparent disregard of law".

14. Raja Muhammad Hanif Khan relied on Settlement Authority v. Mst. Akhtar Sultana PLD 1976 SC 410 in which it was held that a person who files a writ petition must explain obvious delay in filing a writ petition. We may observe that the respondent has given detailed explanation as to why he did not file the writ petition earlier. The explanation is valid or not, it is for the High Court to decide. Even if the explanation does not appear to us to be satisfactory, we cannot pre‑empt the jurisdiction of the High Court because no reason exists for us to do so, particularly in view of the contention of Ch. Muhammad Ibrahim Zia that the doctrine of laches does not apply to a writ of quo warranto.

15. This was also contended by Raja Muhammad Hanif Khan that out of the reliefs claimed in the writ petition, which have been reproduced above, reliefs enumerated at (B) and (C) are in any case not legally tenable. He submitted that these reliefs are for issuance of writs of mandamus and certiorari and are hit by laches. He also submitted that this Court has laid down the clear rule in Azad Government of the State of Jammu and Kashmir v. Kh. Noor‑ul‑Amin 1991 MLD 1190, that unless specific orders are challenged by attaching their certified copies a general declaration that all acts done and proceedings taken are without lawful authority cannot be given. He also relied on Federation of Pakistan v. Muhammad Khan PLD 1991 SC (AJ&K) 33 to contend that under de facto doctrine past and closed transactions are not reopened even if an appointment is illegal, There is force in these contentions but we are not prepared ‑to assume that the High Court will not decide these questions in accordance with the binding decisions of this Court.

16. The learned counsel for the appellant also submitted that admission order of a writ of quo warranto should be in the shape of a show‑cause notice because under the relevant provision of section 44 of the Azad Jammu and Kashmir Interim Constitution Act a writ of quo warranto is in terms that a notice is issued to the respondent to show cause under what authority of law he is holding the disputed office but in the present case the High Coin has admitted the writ petition without issuing a show‑cause notice. This point is a small point of pure technicality which is of no significance. As a result of the foregoing analysis of law and facts we find no force in the appeal and consequently dismiss it with costs. AA./73/SC(AJ&K) Appeal dismissed.