RULE

THE HIGH COURT THE HIGH COURT OF AZAD JAMMU AND KASHMIR (Constitutional Provisions) The High Court of Azad Jammu and Kashmir is constituted under the AJ&K Interim Constitution Act, 1974 (VIII of 1974); the sections from the said Act providing for establishment of the Court, jurisdiction, powers and authority etc. thereof are reproduced hereunder:‑ 43. High Court.‑-----(1) There shall be a High Court for Azad Jammu and Kashmir, hereinafter called the High Court, which shall consist of a Chief justice and such number of other Judges as may be prescribed by an Act of the Assembly. 1[(1‑A) (a) The functions of the High Court may be performed by a Single Bench, a Division Bench or Full Bench: Provided that the Chief justice may recall a case pending before a Bench and make it over to another Bench or constitute a larger Bench for the purpose; (b) In case of difference of opinion in a Full Bench, the opinion of the majority shall prevail; (c) In case of difference of opinion in a Division Bench, the matter shall be referred to a third judge and the decision of the High Court shall be expressed in terms of judgment of the majority. (2) The person holding office as Chief Justice or. other judge of the High Court immediately before the commencement of this Act shall be deemed to be the Chief justice or other Judge as the case may be appointed under this Act. 2[(2‑A) A Judge of the High Court shall be appointed by the President on the advice of the Council and after consultation: (a) with the Chief Justice of Azad Jammu and Kashmir; and (b) except where the appointment is that of Chief Justice with the Chief Justice of the High Court.] (3) 3[A person shall not be appointed] as a judge of the High Court or Advocate General unless: (a) he has for a period, or for periods aggregating, not less than ten years, been as Advocate or Pleader of the High Court of Azad Jammu and Kashmir or a High Court in Pakistan; Provided that the term "High Court" herein shall include a High Court or an equivalent Court that existed at any time before the 14th day of August; 1947; or (b) he has for a period of not less than ten years held a judicial Office out of which not less than three years shall have been as District and Sessions Judge. (4) Before he enters upon his office, the Chief Justice of the High Court shall make before the President, and an other Judge of the High Court shall make before the Chief Justice, an oath in the form set out in the First Schedule. (5) The Chief justice or a Judge of the High Court shall hold office until‑he attains the age of sixty‑two years unless he sooner resigns or is removed from office in accordance with. Law: Provided that the President my appoint a Retired judge of any High Court of Pakistan to be the Chief Justice or a judge of the High Court for a period not exceeding three years and such person shall hold office till he attains the age of sixty‑five years. (6) If at any time any Judge of the High Court is absent or is unable to perform his functions due to illness or some other cause, the President may appoint a person qualified for appointment as a judge of the High Court to be an Additional Judge of the High Court for the period for which the Judge is absent or unable to perform his functions. (7) A Judge of the High Court shall not‑‑‑ (a) hold any other office of profit in the service of Azad Jammu and Kashmir if his remuneration is thereby increased; or (b) occupy any other position carrying the right to remuneration, for the rendering of services, but this sub section shall not be construed as preventing a Judge from holding or managing private property. (8) A person who has held office as a Judge of the High Court shall not hold any office of profit in the service of Azad Jammu and Kashmir, not being a judicial or quasi‑judicial office or the office of Chief Election Commissioner or of Chairman or member of the Public Service Commission, before the expiration of two years after he ceased to hold that office. (9) The remuneration and other terms and conditions. of service of Judges of High Court shall be as provided in the 3[Fifth Schedule.] 1[43‑A. Acting Chief Justice.‑ At any time when:‑ (a) The office of Chief Justice of High Court is vacant; or (b) The Chief Justice of High Court is absent or is unable to perform the functions of his office due to any other cause the President shall appoint the Senior most of the other judges of the High Court to act as Chief Justice.] 44. Jurisdiction of High Court.‑----(1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law: (2) Subject to this Act, the High Court 3[may] if it is satisfied that no other adequate remedy is provided by law: (a) on the application of any aggrieved party, make an rder (i). directing a person performing functions in‑connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do or (ii) declaring that any act done or proceedings taken 4[ ..] by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or (b) on the application of any person, make an order‑‑‑ (i) directing that a person in custody in Azad Jammu and Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in any unlawful manner. (ii) requiring a person 4[ ...] holding or purporting to hold a public office z[in connection with the affairs of Azad Jammu and Kashmir] to show under what authority of law he claims to hold that office or (c) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental right conferred by this Act. (3) An order shall not be made under sub‑section (2) of this section on application made by or in relation to a person in the Defence Services in respect of his terms and conditions of service, in respect of any matter arising out of his service or in respect of any action taken in relation to him as a member of the Defence Services. (4) Where‑‑ (a) application is made to the High Court for an order under clause (a) or clause (c) of sub‑section (2); and (b) The Court has reason to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or otherwise being harmful to the public interest, the Court shall not make an interim order unless the Advocate General has been given notice of the application and the Court, after the Advocate General or any officer authorized by him in this behalf has been given an opportunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in clause (b) of this sub‑section. (5) In this section, unless the context otherwise requires, "Person" includes any body politic or corporate, any authority of or under control of the Council or the Government and any court or tribunal other than 3[Supreme Court of Azad Jammu and Kashmir,] the High Court or a court or tribunal established under a law relating to the Defence Services. 5[44‑A. Rules of Procedure.‑--------Subject to this Act and law, the High Court may in consultation with the Government, make rules regulating the practice and procedure of the Courts subordinate to it. 44‑B Decision of High Court binding on subordinate Courts.‑--- Subject to section 42‑B any decision of the High Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it.] 1[44‑C.Seat of High Court:‑--- (1) The permanent seat of the High Court shall be at Muzaffarabad. (2) The High Court may, from time to time, sit at such other places as the Chief Justice of the High Court, with the approval of the President, may appoint.] 46. High Court to superintend and control all courts subordinate to it etc.‑‑--(1) The High Court shall superintend and control all other courts that are subordinate to it. (2) There shall, in addition to the 3[Supreme Court of Azad Jammu and Kashmir] and the High Court, be such other Courts as are established by law. (3) A Court so established shall have such jurisdiction as conferred on it by law. (4) No Court shall' have any jurisdiction which is not conferred on it by this Act or by or under any other law. 6[FIFTH SCHEDULE (See Section 43 (9) The Chief Justice and the Judges of the High Court of Azad Jammu 'and Kashmir shall be entitled to the same Salary, Allowances, Privileges and Pension as are admissible to the Chief Justice and Judges of the High Court in Pakistan.] 1. Inserted by the AJ&K Interim Constitution (Tenth Amendment) Act, 1993 (Act XX of 1993). 2. Inserted by the AJ&K Interim Constitution (First Amendment) Act, (IX of 1975). 3. Substituted ibid. 4. Omitted Ibid. 5. Inserted by the Third Amendment Act, 1976. 6. Substituted by Act XX of 1993.