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Cilvil Appeal No.25 of 1989, decided on 4th July, 1989.

(On appeal from the judgment of the High Court dated 4 1-1989 in Write petition No.44 of 1987).

S. 43 Azad Jammu and Kashmir Courts and Laws Code Act, 1949, S.5 When vacancy of a Judge of the superior Court falls vacant for one reason or the other and the number of Judges thus falls short of the minimum number prescribed under law, the constitution of the High Court would not be adversely affected and the remaining Judges or Judge, as the case may be, would be competent to perform their functions under law Necessity for. taking early steps by Authorities concerned for filling vacancies, however, was desired by Supreme Court.

Sardar afique Mahmood Khan

Kh. Shah Ahmed for Respondent No.l.

Manzoor Hussain Gillani, Advocate General, Muhammad Nisar Mirza

Additional Advocate General, Kh. Muhammad Saeed, Raja Muhammad Hanif, Sh.

Abdul Aziz and Abdul Rashid Abbasi for assistance of the Court.

SARDAR SAID MUHAMMAD KHAN, J. This appeal has been directed against the judgment of the High Court dated 4 1 1989, whereby the Writ Petition filed by the appellants, herein, was dismissed.

2. The brief facts giving rise " to the present appeal are: that the land comprising survey Nos. 235 and 236, measuring 10 kanals 16 marlas, situated in village Shah Dara, Tehsil and District Muzaffarabad, was recorded in the ownership of the appellants in the copy of the record of rights pertaining to year 1962 A.D. The case of the appellants is that the Custodian of Evacuee Property has illegally treated the said piece of land as evacuee property and allotted the same to Shaikh Atta Ullah, respondent, as refugee from Indian held Kashmir. The appellants filed an application before the Deputy Custodian, Muzaffarabad, under section 22 of the Pakistan Administration of Evacuee Property Act, 1957, seeking declaration that the said property might be declared as non evacuee, but it was dismissed. The appellants then went up in appeal to the Custodian of Evacuee Property, but their appeal also failed. The appellants also filed a revision petition against the order of the Rehabilitation Commissioner dated 1 1 1987, but the same was also dismissed. The appellants filed a Writ Petition in the High Court challenging the aforesaid orders, but the same was also dismissed. Their petition for leave to appeal was partly accepted and leave to appeal was granted only to consider as to whether the High Court was not properly constituted at the time of the passing of the impugned judgment and as such the impugned judgment was without jurisdiction. Precisely, the case of the appellants is that in view of the provisions contained in section 43 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with section 5 of the Azad Janrmu and Kashmir Courts and Laws Code Act, 1949, the High Court must consist of a Chief Justice and three or more Puisne Judges, but at the relevant time, as the two Judges of the High Court had retired, it consisted of a Chief Justice and only one puisne Judge. Thus, according to the case of the appellants, as there existed no validly constituted High Court at the time of passing the judgment, the impugned judgment is without jurisdiction and is of no legal consequence.

3. It has been contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellants, that under section 24 of the Courts and Laws Code Act any function of the High Court may be performed by a Bench consisting of one or more Judges, but first it is essential that a validly constituted High Court is in existence, i.e., the number of the High Court Judges, in addition to the Chief Justice, should not be less than three in view of the provisions contained in section 5 of the Courts and Laws Code Act.

4. In reply it has been argued that the mere fact that the number of the Judges was less than three at the relevant time as a result of retirement of two Judges, the constitution of the High Court would not become defective.

5. We have given our due consideration to the arguments raised at the Bar. The identical proposition came up for consideration in a number of cases:

In a case reported as Mr. Zulfikar Ali Bhutto v. The State PLD 1978 SC 40, it was held that the provisions of the Constitution cannot be interpreted in a manner which might bring the functioning of the judicial institutions at a halt due to the happening of contingencies like offices falling vacant for one reason or the other. The learned Judges observed as under:

"There is indeed a distinction between a vacancy in any office, and its abolition. The existence of a vacancy implies that the office exists. The true requirement of Article 192 of the Constitution is that in order to bring a High Court into existence there should be created the offices of Chief Justice and the prescribed number of Judges. If these offices have been created, then the High Court has properly come into existence, and would be able to start functioning as soon as appointments to these offices, or to some of them have been made. Any temporary vacancy in any of these offices would not affect the constitution and jurisdiction of the High Court. This view is clearly borne out by the fact that Article 196 of the Constitution itself contemplates that the office of the Chief Justice of a High Court may be vacant at any given time or the Chief Justice may be absent or otherwise unable to perform the functions of his office due to any other cause. In such a contingency the Constitution contemplates the appointment of an Acting Chief Justice, and it is obvious that there may be some time lag between the occurrence of a vacancy and the appointment of an Acting Chief Justice. A similar provision is made, by Article 197 of the Constitution, regarding the appointment of Additional Judges of the High Court when the office of a Judge is vacant, or he is unable to perform the functions of his office, or for any reason it is necessary to increase the number of Judges of a High Court. If Article 192 of the Constitution were to be construed in the manner, canvassed by Mr. Yahya Bakhtiar, then the likelihood of frequent interruptions and discontinuity in the work of the High Court cannot be ruled, out, as vacancies in the office of the Chief Justice or the offices of the prescribed number of Judges may occur owing to human factors, and the inevitable time lag which must intervene between the occurrence of a sudden vacancy and its filling up, whether on a temporary or permanent basis by the President of Pakistan. The provisions of the Constitution cannot be interpreted in a manner calculated to bring to a halt the functioning of judicial institutions on the happening of contingencies which are inherent in human affairs. We are, therefore, of the view that the constitution and continuity of the High Court is not affected by a temporary vacancy in the office of the Chief Justice or of any of the Judges from among the prescribed strength of the High Court it would be affected only if the Office of the Chef Justice were to be abolished, and in that case alone could it be said that the High Court has ceased to be properly constituted in terms of Article 192 of the Constitution."

In a case reported as Empero r v. Sohraj Koeri and another [A.I.R. 1938 Patna 5501, it was opined that in case the office of the Chief Justice of a High Court remains vacant due to the death of the Chief Justice or due to some other cause, it could not be said that there was no validly constituted High Court till the vacancy was filled up. It was further opined that the vacancy did not mean abolition of the office; it only amounted to suspension of the duties to be discharged by the Chief Justice, the functioning of the High Court would continue.

In Collector of Etah v. Rani Gulab Kunwar AIR 1935 Allahabad 322 was held that although at least one third of the Judges of the High Court shall be Barristers yet it did not mean that if on account of some reason a vacancy occurs, the other Judges of the High Court would become incompetent to perform their functions till the filling up of the vacancy.

In Sampatlal Keshan and others v. Baliprasad Shah and others AIR 1950 Assam 6; only the appointment of the Chief Justice was made by the Governor General while the vacancies of the other Judges were not filled. The competency of the Chief Justice to act as such was challenged and it was observed as under:

We have carefully considered the argument addressed to us on this point and we think the objection is not sound. There was to be a High Court for this Province from 5th April, 1948, the prescribed day. The Calcutta High Court, which formerly was exercising jurisdiction so far as this province was concerned was to cease to have that jurisdiction. The appointment of the Chief Justice was made before the prescribed day, but under the proviso to section 3 it took effect from the prescribed day. The appointment of such other Judges as the Governor General deemed necessary within the maximum limit was no doubt necessary. But both section 3, Assam High Court Order, 1948 and section 220, Government of India Act, 1935 allow the Governor General to make other appointments, from time to time. No time limit is placed on the exercise of jurisdiction vested in him in this respect. It cannot be said, therefore, that the. Governor General was under an obligation to appoint Judges at once or at a time that they could function on the prescribed day or on any particular day. He is really the judge of the time when appointments of other Judges may be" made. Besides, the possibility that the Governor General may take some time to make other appointments could not have been overlooked by the Legislature. If the intention had been that the Chief Justice should not exercise the powers which he as Chief Justice or as a Single Judge of the High Court could exercise till these appointments were made an express provision to that effect should have appeared in the section. If the objection raised is accepted, the conclusion would be that the Chief Justice could not act at all till at least the appointment of a second Judge was made. This second appointment was made in August 1948. The result would be that the High Court could come into existence only in August though, according to the Assam High Court Order this province was to have a High Court from the prescribed day (5th April). The Calcutta High Court had ceased to exercise jurisdiction from that day. This result could not have been meant. The interpretation placed on the relevant section by the learned counsel leads to anomalous results. The Legislature could not have intended that the Chief Justice was not to exercise any jurisdiction even as Chief Justice or as a Single Judge till the appointment of other Judges. If this intention is attributed to the Legislature, it would be reading something into the section that it does not contain."

In Bishal Chand Jain v. Chattur"Sen and others AIR 1967 Allahabad 506; it was held that the mere fact that the Chief Justice was appointed as Judge of the Supreme Court, the High Court did not cease to be properly constituted on account of the fact that the office of the Chief Justice was vacant. It was further opined that notwithstanding the fact that the office of the Chief Justice was vacant temporarily, the High Court would be considered to continue consisting of Chief Justice and the other Judges.

6. It follows from the above cited case law that if the vacancy of a Judge of the Superior Court falls vacant for one reason or the other and thus the number of Judges falls short of the minimum number prescribed under law, the constitution of the High Court would not be adversely affected and the remaining Judges or Judge, as the case may be, would be competent to perform their functions under law. The learned counsel for the appellants could not cite any authority to the contrary. He merely emphasised that m view of the provisions contained in section 5 of the Courts and Laws Code Act if the number of Judges is less than three, the High Court would not be deemed to be properly constituted under section 43 of the Interim Constitution Act. We are afraid we cannot subscribe to the argument advanced by the learned counsel for the appellants. If the argument of the learned counsel for the appellants is accepted, it would lead to preposterous results. It is a matter of common practice that when a vacancy of Judge occurs in a superior Court on account of retirement of a Judge or otherwise, it takes some time for the authorities concerned to fill up such vacancy. If we accept the proposition propounded by the learned counsel for the appellants, any such decrease in the number of Judges would render the remaining Judges incompetent to perform their functions till the vacancy is filled up. In other words an important organ of the State would stand parawised and its functioning would come to stand still: This could not be the intention of the law giver. Had it been so there have been express provision in that regard.

7. However, we are constrained to observe that it is essential for the smooth working that the vacancies occurring in the Superior Courts are filled up as early as possible. Otherwise, the working of the Courts is likely to be adversely affected. For instance if it is found desirable to constitute a larger Bench for hearing a case, it may not be practicable due to the limited number of Judges. Besides, in some cases it might be enjoined by law that a certain cause should be heard by a Bench consisting of more than two Judges, but that may not be possible due to the limited number of Judges and thus the early disposal of cases may be hindered. At present the High Court consists of a Chief Justice and a Judge. The vacancies occurring due to the retirement of the two Judges have not been filled up despite the fact that in one case the vacancy occurred 2 years and two months and m other case 9 months earlier. We hope that the authorities concerned would take early steps for tilling the said vacancies.

With these observations finding no force in this appeal, it is hereby dismissed with costs.

The judgment has been announced in presence of the learned counsel for the appellants. The learned counsel for the respondent shall be informed of the result.

M.B.A./259/S.C.A Appeal dismissed.

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