Find a Lawyer

Civil Petition for Leave to Appeal No.19 of 1987, decided on 16^thDecember, 1987.

(On appeal from the judgment of the High Court dated 19 1 1987, in Writ Petition No.11 of 1986).

S. 18, proviso [as added by Azad Jammu and Kashmir Interim Constitution (Seventh Amendment) Act, 1986, S.2] Amendment operating as restriction on vote of a member of Assembly alone Essentials Where majority of members of a political party in the Assembly do not favour resolution for a vote of no confidence against Prime Minister, vote of a member of that political party cast in favour of resolution, would not be counted.

Ss. 44(2)(a), (c) & 18, proviso [as added by Azad and Jammu and Kashmir Interim Constitution (Seventh Amendment) Act 1986, S.2] Vires of Seventh Amendment in Constitution, challenge to Aggrieved person Whether an Advocate is an aggrieved person Amendment operating as restriction on vote of a member of Assembly alone Amendment challenged by an Advocate Locus standi to challenge Leave to appeal was granted to consider as to whether High Court in circumstances, had correctly found that petitioner was not an aggrieved person within meaning of S.44 of Azad Jammu and Kashmir Constitution Act, 1974. [Locus standi].

Petitioner in person.

Mirza Muhammad Nisar, Additional Advocate General for Non Petitioners.

Ashiq Hussain, Muhammad Taj, Muhammad Yunus Surakhvi and Basharat Ahmed Sheikh: Amicus curiae.

Through this petition Mr. Noor ul Amin, a Senior Advocate of Mirpur, seeks leave to appeal to question the legality of an order passed by a Full Bench of the Azad Jammu and Kashmir High Court on 19 1 1987, whereby the petitioner"s writ petition for his being not an aggrieved party was dismissed in limine.

2. The controversial issue which was made subject of the writ petition had arisen in the following circumstances:

3. An amendment in the Constitution Act, 1974, known as 7th amendment introduced in the joint sitting of the Assembly and the Council on February 20, 1986, was duly passed. It received the assent of the President on February 25, 1986. Section 2 of the Amending Act 1986 (7th amendment) introduced restriction on certain voters to vote for a resolution of no confidence to vote out the Prime Minister. The amendment says:

"Provided that the vote of a member, elected to the Assembly as a candidate or nominee of a political party or who voted in favour of Prime Minister at the time of his election in the Assembly, cast in support of a resolution for .a vote of no-confidence, shall not be counted if the majority of the members who voted in favour of Prime Minister, have cast their votes against the passing of such resolution."

4. The impugned amendment, it would appear, seems to exclude the vote of a member in favour of a resolution moved to vote out the Prime Minister if the majority of the members of the political party on whose behest such member was elected to the Assembly or nominee of that political party do not support the resolution, for such a vote of no confidence. It may, therefore, be interpreted to mean that if it is established that the majority of the members of a political party in the Assembly do not favour the resolution for a vote of no confidence, the vote of a member of that political party cast in favour of the resolution cannot be counted.

5. The petitioner moved a writ petition to challenge the vires of the aforesaid 7th amendment in the High Court on the ground that the impugned amendment contravenes the fundamentals enshrined in the Constitution Act.

6. The High Court, as sdid earlier, dismissed the writ petition on the solitary ground that the petitioner is riot an aggrieved person within the meanings of Section 44, subsection (2) clauses (a) and (c) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

7. We have heard the petitioner, who has himself argued his own case. He submits that he being a voter has a right to invoke the writ jurisdiction of the High Court, if any of the constitutional provisions is violated by an amendment in the Constitution; especially in the circumstances when he has sufficient interest in the matter. In support of his submissions he has referred to S.P. Gupta and others v: President of India and others AIR 1982 SC 149, People"s Union .for Democratic Rights v. Union of India AIR 1982 SC 1473 and D.S. Nakara and others v. Union of India AIR 1983 SC 130.

8. The basic case is S.P. Gupta"s case, which has been reported in AIR 1982 SC 149. This case has been followed in the latter cases. The Supreme Court of India in the first case expressed the view that if a person has sufficient interest in any cause or matter, the mere fact that he has no personal interest would not be sufficient to say that he is not an aggrieved person for invoking the writ jurisdiction of the High Court.

9. The examination of cases, afore cited, shows that in all the three cases it was held that traditional rule that only those persons who suffered personal injury would be considered as aggrieved persons, did not find favour in the Supreme Court of India and the rule of locus standi, in view of the three pronouncements, needs to be liberalised. All the cases referred contain identical enunciation of law. M/s Ashiq Hussain, Muhammad Taj, Muhammad Yunus Surakhvi and B.A. Sheikh, Advocates, owned the arguments advanced by Mr. Noor ul Amin, Advocate.

10. As against this Mr. Muhammad Nisar Mirza, Additional Advocate General, who due to the absence of the Advocate General was given the last chance to argue the matter, was allowed to argue the case. He has submitted that in view of the law in Jalal ud Din v. Settlement Commissioner (1968 S C M R 995), Ch. Muhammad Yunus v. Islamic Republic of Pakistan (PLD 1972 Lah. 847), Muhammad Boota v. The Commissioner, Sargodha Division (PLD 1973 Lah. 580) and Ghiasul Haq v. Azad Government (PLD 1980 SC (AJ&K) 5) the petitioner is not an aggrieved person within the meaning of Section 44 of the Constitution Act.

11. We have studied the cases cited by Mr. Muhammad Nisar Mirza, Additional Advocate General. In all these cases, the meaning to an "aggrieved person" has been given in the circumstances of those cases and it needs consideration as to whether the meaning ascribed to the word "aggrieved person" in all the above cases can validly be ascribed on the face and circumstances of the present case.

12. After giving our considered thought to the arguments advanced and looking into the impugned amendment, we are of the view that it needs consideration as to whether the High Court in the circumstances has correctly found that the petitioner is not an "aggrieved person" within the meaning of Section 44 of the Constitution Act; suppose all the elected members from Government Benches and opposition effect an illegal amendment in the Constitution Act, will it still be said that a voter who had played a part in electing a member or members is not an "aggrieved person" within the meaning of Section 44 of the Constitution Act, to challenge such an amendment The above are questions of importance and need authoritative judgment.

Leave to appeal is, therefore, granted to consider the, above-reflected points. Security Rs.500. The file after completion shall be placed before the Court.

A.A./250/SCA

Leave to appeal granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.