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1. Such writ is to inquire from a person, the authority of law under which he
purports to hold public office and it is primarily inquisitorial and not adversarial
for the reason that a relator need not be a person aggrieved but also that while
a person is holding a public office without any legal warrant, he is taxing public
exchequer besides causing injury to others who may be entitled to that office---
High Court, keeping in view the nature of such proceedings, can undertake such
an inquiry as it may deem necessary in the facts and circumstances of a
particular case including examination of the entire relevant record---Such
exercise can be done suo motu, even if attention of High Court is not drawn by
the parties concerned.
3. As regards the third ground, there is nothing on the record to show that
there is any dearth of efficient and competent doctors in Pakistan, or if
there is any, it can be removed effectively by retaining the services of Dr.
Saeed Ahmad in the Medical Department. Surely, like everybody else in the
world. Dr. Saeed Ahmad is also not indispensable.
We may mention here that no vested legal right whatsoever was available to
the respondents for the invocation of the provisions as envisaged in Article 199
of the Constitution of Islamic Republic of Pakistan. It is well settled by now that
"the right which is the foundation of an application under Article 199 is a
personal and individual right. The legal right may be a statutory right or a right
recognized by the law. A person can be said to be aggrieved only when a
person is denied a legal right by someone who has a legal duty to perform
relating to the right. There must not only be a right but a justiciable right in
existence, to give jurisdiction to the High Court in the matter. Unless whatever
right, personal or otherwise, on which the application is based is established,
no order can issue under Art. 199.
A careful perusal of the Article reproduced above would show that a High Court
would exercise its extraordinary discretionary Constitutional jurisdiction where
it is satisfied that, subject to the Constitution, no other adequate remedy is
provided by law. It would exercise such jurisdiction under Article 199(1)(a)(i),
(ii) and (c) on the application of an aggrieved person while under 199(1)(b)(i) &
(ii) on the application of any person whether aggrieved or not, and not on an
information or on its own knowledge. The case of "High Court Bar Association
and others v. Government of Balochistan through Secretary, Home and Tribal
Affairs Department and six others" (supra), inasmuch as it upholds exercise of
Suo Motu jurisdiction is per incuriam for having been rendered in derogation of
the express words used in Article 199 of the Constitution, therefore, has no
force altogether. The case of "Mian Muhammad Nawaz Sharif and others v.
Declaring that any act done or proceedings taken by a person performing functions ..
in connection with the affairs of the Federation, a Province ..has been done or taken
without lawful authority and is of no legal effect
3
As the writ petitions filed before the Lahore High Court, eventually leading
to the judgments under review, were for the issuance of either writ of
Certiorari or Mandamus, they could have been maintained only by an
aggrieved person within the meaning of Article 199 of the Constitution. As
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held above, neither Noor Elahi nor Syed Khurram Ali Shah fulfilled that
condition. The writ petitions filed by these two persons were, therefore,
not maintainable. Consequently, the petitions filed in this Court against
the judgments of the Lahore High Court in the said writ petitions,
culminating into the judgments under review, were also not maintainable.
1. With regard to the first objection it may be noted that under Article
199(1)(a) of the Constitutional jurisdiction of the High Court can be invoked
by an aggrieved person which denotes a person who has suffered a legal
grievance, against whom a decision has been pronounced which has
wrongfully deprived him or wrongfully refused him something which he
was legally entitled to. It is also the requirement that the person invoking
the constitutional jurisdiction under Article 199 of the Constitution has to
establish that any of his legal or fundamental right guaranteed under the
Constitution has been violated resulting in legal loss.
3. For issuance of a writ of quo warranto the person invoking the jurisdiction
of the High Court under Article 199 of the Constitution is not required to
fulfill the stringent conditions required for brining himself within the
meaning of an aggrieved person. Any person can move the High Court to
challenge the usurpation or unauthorized occupation of a public office by
the incumbent of that office and he is not required to establish his locus
standi to invoke the constitutional jurisdiction under Article 199 of the
5
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(To the same effect, see PLD 2014 Balochistan 1 (Muhammad Alam v
P & D department (who is aggrieved person when issue at stake is
matter of utilization of public resources)
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Supreme Court 693). The Hon'ble Supreme Court held that the right to life
and the right to lead a life of dignity, respectively guaranteed in the
Constitution under Articles 9 and 14, was not limited to, "mean nor can it
be restricted only to the vegetative or animal life or mere existence from
conception to death. Life includes all such amenities or facilities which a
person in a free country is entitled to enjoy with dignity, legally and
constitutionally" (at page 712). In General Secretary Salt Miners Labour
Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral
Development, Punjab, 1994 SCMR 2061, the Supreme Court stated that,
"The right to have unpolluted water is the right of every person wherever
he lives" (at page 2070). In the case of Sindh Institute of Urology and
Transplantation v. Nestle Milkpak Limited, 2005 CLC 424, the Sindh High
Court held, that:
"It is well-settled that natural resources like air, sea, waters, and
forests are like Public Trust. The said resources being a gift of
nature, they should be made freely available to everyone
irrespective of status. "Doctrine of Public trust" as developed
during the days of ancient Roman Empire, enjoins upon the
Government to protect the resources for the enjoyment of the
general public rather than to permit their use for private
ownership or commercial purposes. Even under Islamic law
certain water resources are to be protected from misuse and
over exploitation" (at page 440).
Consequently, there is no substance in the objections taken with regard to
the maintainability of the petitions and we hold that the same are
maintainable.
PIL—Locus Standi—requirements
Learned counsel for the respondent No.5 have objected to the locus standi
of the petitioner on the ground that he is not an aggrieved person. Article
199 or the Constitution of Islamic Republic of Pakistan, 1973 (Constitution)
requires that a petition be instituted by an aggrieved person. The basic
objection here is that this is litigation in public interest where the petitioner
has to meet the criteria for instituting his case in public interest. To satisfy
the requirements of an "aggrieved person" in public interest litigation
under Article 199 of the Constitution, the petitioner needs to disclose a
personal interest in the performance of legal duty owed to him which if not
performed would result in the loss of some personal benefit or advantage
or curtailment of a privilege in liberty or franchise. Reliance is placed on
1999 SCMR 2883 (supra). It has also been stated that to establish locus
standi in the context of public interest litigation, the petitioner would have
to show that he belongs to class of affected persons who are unable to
access the Court for the protection of their rights. Reliance is placed on
2012 SCMR 455 (supra). In this case, the petitioner claims that he is an
aggrieved because he is. resident of Cantt. and he has sufficient interest in
the matter, hence he falls within the definition of an aggrieved person.
Sufficient interest as per the judgment cited at 1999 SCMR 2883 (supra)
means any legal interest which can include civic, environment, cultural
interests and it is the gravity of the issue which should be taken into
consideration, such that the more serious the issue at stake the less
significance will be attached to arguments based on the applicant's alleged
lack of standing
"Public interest litigation is a weapon which has to be used with great care
and circumspection and the judiciary has to be extremely careful to see that
behind the beautiful veil of public interest an ugly private malice, vested
interest and/or, publicity seeking is not lurking. It is to be used as an
effective weapon in the armory of law for delivering social justice to the
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citizens. The attractive brand name of public interest litigation should not
be used for suspicious products of mischief. It should be aimed at redressal
of genuine public wrong or public injury and not publicity oriented or
founded on personal vendetta. As indicated above, Court must be careful to
see that a body of persons or member of public, who approaches the court
is acting bona fide and not for personal gain or private motive or political
motivation or other oblique consideration. The court must not allow its
process to be abused for oblique considerations. Some persons with vested
interest indulge in the pastime of meddling with judicial process either by
force of habit or from improper motives. Often they are actuated by a
desire to win notoriety or cheap popularity. The petitions of such busy
bodies deserve to be thrown out by rejection at the threshold