SHAHID WAHEED, J.---The order sought to be set aside, in these two intra court appeals, is of the Single Bench, whereby the petition brought by Saqib Jang, respondent herein, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), that is to say, W.P. No. 28055 of 2021, was allowed and the Advocate General, Punjab was directed to give his consent, within the contemplation of Section 29 of the Mental Health Ordinance, 2001, so that he could approach the Court of Protection.
2. The cause of initiating legal proceedings, up to these appeals, is the health of Aamir Jang, who is allegedly suffering from schizophrenia-paranoid, a disease that falls under the category of "mental disorder" as provided under Section 2(m) of the Mental Health Ordinance, 2001 ("the Ordinance").
Aamir Jang ("the patient") is 67 years old and is currently living with his mother, Mst. Yasmin Jang, who is appellant before us. Saqib Jang is one of the patient's two younger brothers, and he lives abroad. Saqib Jang ostensibly with the view that his mother at the age of 85 years is weak and unable to properly look after the patient's health affairs and property issues, hired the services of a law firm, by executing Wakalatnama, for appointment of guardian and manager over the person and property of the patient. The law firm accordingly applied to the Advocate General, Punjab, to obtain his consent, so as to move the Court of Protection ("the Court") for appointment of any suitable person as the guardian/manager. On this application, the Advocate General, Punjab through his letter No. 4875/AG-Pb dated 25th February. 2020 asked the Medical Superintendent of the Punjab Institute of Mental Health, Lahore to examine the patient and issue medical certificate.
The Medical Superintendent, in reply, requested the Advocate General, Punjab, to direct the concerned to present the patient before him for assessment. The patient's mother was accordingly asked to do so, but she claimed through her counsel that the Advocate General, Punjab had no authority to issue such a directive, and this led to an impasse. To untangle the issue, Saqib Jang filed his constitutional petition seeking an order in the nature of writ of mandamus directing the Advocate General, Punjab to grant him consent in terms of Section 29 of the Ordinance for approaching the Court. On consideration of the matter, the Single Bench allowed the petition through its order dated 31st May, 2021 with the observation that the Advocate General could not withhold his consent on the plea that an inquiry was being conducted, for, if this was to be permitted, then this would become a two tier process and would confer jurisdiction on two parallel forums to conduct an inquiry regarding a person being mentally disordered or not.
3. Based on the given facts, a twofold challenge has been thrown to the order dated 31st May, 2021 of the Single Bench. First is that the impugned order is diametrically opposed to the judgment rendered by another Single Bench of this Court in Ahsin Arshad's case[1] in which it was held that the requirement of giving consent could not be considered mechanical as it required some degree of probe and reasoning, and, in this regard, the consent sought for under Section 29 of the Ordinance was limited to three aspects, first to ensure that the mentally disordered person and the relative who sought guardianship resided within the jurisdiction of the Court, secondly that there was a mentally disordered person for whose property an application under Section 32 or 33 of the Ordinance had been made, and finally that relatives of such person had moved the application.
The second objection of the appellant is that the Advocate General, Punjab, could not be ordered to process the application which was not signed by the patient's brother and was filed before him by his counsel solely on the basis of Wakalatnama. The above-taken exceptions oblige us to examine the scope and role of the Advocate General within the regime provided in the Ordinance vis-a-vis the appointment of any suitable person to be made by the Court as guardian of a mentally disordered person or manager of such person to look after his property, and for that matter, a careful look at Chapter-V of the Ordinance is essential.
4. It is to be noted that earlier the law regulating the affairs of mentally disordered persons was the Lunacy Act, 1912. That law was not comprehensive enough and did not adequately meet the requirements of the United Nations Convention on the Rights of the Persons with Disabilities (UNCRPD); particularly, the command of the Constitution which guarantees the social and economic well-being of all citizens, including mentally disordered persons, regardless of sex, caste, creed, race, or any other basis. The Constitution, with a comprehensive catalogue of fundamental rights, is the basic source to protect human rights and it serves as a shield against any infringement of the rights of mentally disordered persons. Being sensitized of its duty, it appears, the Government repealing the Lunacy Act, 1912 made and promulgated the Ordinance (i.e. the Mental Health Ordinance, 2011) for the treatment and care of mentally disordered persons, to make better provision of their care, treatment, management of properties and affairs and to provide for matters connected therewith or incidental thereto and to encourage community care of such mentally disordered persons and further to provide for the promotion of mental health and prevention of mental disorder. We are here concerned with Chapter-V of the Ordinance which' deals with judicial proceedings for appointment of guardian of person and manager of the property of the mentally disordered. It consists of eighteen sections and their underlined intent is to swiftly attend to all the issues relating to a mentally disordered person, and their conjoint reading suggests that the legislature has prescribed a four-steps procedure for appointment of guardian of a person and manager of the property of the mentally disordered person. The first step is to apply for the consent of the Advocate General, Punjab. This may be called Consent Application step. According to Section 29 of the Ordinance there are four mandatory prerequisites for filing the Consent Application, and that is, it must be about a person who (i) possesses property, (ii) is alleged to be mentally disordered, (iii) resides within the jurisdiction of the Court, and (iv) it must be from any of the relatives of such person. It is important to clarify here that the applicant of the Consent Application does not have to be a resident of the A area which falls within the jurisdiction of the Court, as the place of residence is one of the factors on which the Court, determines the suitability of a person, including the applicant, and appoints him/her as A the guardian or manager of the mentally disordered person. We, therefore, with respect, disagree with the observation recorded in Ahsin Arshad's case (supra) that the relative who seeks guardianship/ managership must also be resident of the area falling within the jurisdiction of the Court. The second step is to file a petition in the Court. Any relative who has obtained the consent of the Advocate General, Punjab may file a petition before the Court, on which the Court will, in the first instance, by order direct an inquiry, for the purpose of ascertaining whether a person, for whom the petition has been filed, is mentally disordered and incapable of managing himself, his property and his affairs. In the third step, the Court, after assessing the mental capacity, shall proceed to determine the suitability of a person to be appointed as guardian/manager, and in this process, the Court will observe the principle of welfare of the mentally disordered person. And in the fourth and last step, the Court in respect of a mentally disordered person may under section 32 of the Ordinance appoint suitable person to be his guardian, or order him to be looked after in a psychiatric facility and order for his maintenance, and for management of property of such person the Court under section 33 shall appoint manager. These steps of judicial proceedings, we think, are sufficient to conclude that the law has ensured a fair trial for the protection of all kinds of interests of the mentally disordered person. Now from this standpoint, we proceed further and examine why the legislature has made it mandatory to obtain the consent of the Advocate General, Punjab before approaching the Court, and also the mechanism which the Advocate General, Punjab is supposed to observe while granting consent.
5. The Advocate General is a limb of the executive qua his official capacity. The requirement of obtaining his consent, where any of the relatives of the mentally disordered person wants to move the Court for appointment of guardian of person and manager of the property of such person, is not a mere formality; it has a salutary purpose. The Advocate General being the highest law officer at the level of the Province, is virtually interested in the purity of the administration of justice and preserving the dignity of the courts. With this presumption in mind and also that swift dispensation of justice is one of the essential elements of a fair trial, which gets more importance when the matter is connected with the person and property of a mentally disordered person, the legislature appears to have made it a condition of obtaining the consent of the Advocate General in section 29 of the Ordinance, which acts as a medium, to filter out cases which are found to be vexatious, malicious or motivated by personal vendetta and not in the interest of mentally disordered person, and also saves the Court time squandered in handling such type of case, so that the Court could conveniently focus on the serious issues.
6. Now it is to be seen what basic questions the Advocate General will address himself when considering an application for his consent, and on what principles his powers will be governed. This proposition may be examined in the light of the judgment of the House of Lords in Padfield's case[2]. In that case the Minister had a general duty under the Agriculture Marketing Act, 1958 to decide whether to refer certain complaints to a committee of investigation, and refused to do so in the case of a particular complaint because he found it unsuitable for investigation by means of this procedure. Padfield applied to the Divisional Court for an order of mandamus commanding the Minister to refer his complaint to the committee of investigation, and the House of Lords, reversing the Court of Appeal, allowed the appeal and remitted the matter to the Divisional Court to require the Minister to consider Padfield's complaint according to law. The case is relevant to the function of the Advocate General in considering consent request since it recognized that statute had given an executive officer a discretion regarding the reference of complaints to a given tribunal, and considered the principle governing the exercise of this discretion and accordingly the measures of judicial control of the Minister. Speaking of the power to refer a complaint to the committee, Lord Reid proposed that "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court," adding that "if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court."
7. Applying the implications of Padfield's case, it becomes explicit that the authority of the Advocate General, when considering an application for his consent, is by no means ministerial one, nor is his power unfettered. It is important to bear in mind, first, that the sole purpose of his consideration is to decide whether the matter is one which he thinks ought to be dealt with by the procedure of the Court under the Ordinance, and secondly, that it is to his discretion and not that of anyone else that legislature has entrusted the decision whether or not any particular matter should be so dealt with. In reaching his decision, he must take into consideration the policy and object of the Ordinance. Thus, for the purposes of grant of consent to allow the matter to go to the Court, he needs to confine himself only to four questions, that is, first whether the person about whom proceedings are to be initiated possesses any property, secondly, whether such person is alleged to be mentally disordered, thirdly, whether alleged mentally disordered person resides within the jurisdiction of the Court, and lastly, whether the applicant is a relative of the alleged mentally disordered person?[3] Indeed, save in so far as may be necessary to make some inquiries into the above questions to satisfy himself, the Advocate General is not at this stage concerned with the merits of the case at all. These will be for the Court to consider if he decides to refer the case to it.
4. It is pertinent to clarify here that although it is salutary to follow the judicial forms of procedure in the investigation of the above questions, indeed advisable, to dispel fear or apprehension of arbitrariness in the mind of the aggrieved person, there is no compelling statutory obligation on the part of the Advocate General to hear witnesses, to admit documentary evidence ete. when he is moved under section 29 of the Ordinance,[5] but as the Principal Law Officer of the Provincial Government and closely associated with its agencies or instrumentalities, it is incumbent upon him to make an inquiry, at least by getting a verification report from all concerned about the supporting documents of the Consent Application, such as the Family Registration Certificate (FRC), property documents, medical certificate of a Psychiatrist, and certificate issued by the concerned agency relating to the place of residence of the alleged mentally disordered person, and then grant his consent, and doing so, will establish that the applicant has disclosed a prima- facie case to be referred to the Court for triaI[6], which in turn, will also facilitate the Court to speedily attend to all the issues relating to the appointment of a guardian/manager of the mentally disordered person. Given the above exposition, we are poised to conclude that the observations recorded by the Single Bench in its order dated 31st of May, 2021 about the nature of duty and function of the Advocate General do 'not match with the intent of section 29, and they are too far from the policy of the Ordinance.
8. In the end, we look at the second objection of the appellant. The stance of the appellant is that the Consent Application filed in the office of the Advocate General, purportedly on behalf of Saqib Jang, was not maintainable. The rationale of this objection, as we understood it, is that no advocate or law firm, solely based on Wakalatnama (power of attorney), could apply to the Advocate General for obtaining his consent, and thus, the application that was filed by the law firm without the signature of Saqib Jang, could not, in any way, be construed as an application of the patient's relative, and therefore, no directive could be issued to the Advocate General to grant his consent on it. In order to find out the answer to this objection, it is essential to, firstly, clear whether the power exercisable by the Advocate General under section 29 of the Ordinance is a judicial power and whether the resultant act is a judicial order. We have no doubt in our minds that the granting or refusing consent by the Advocate General under section 29 of the Ordinance is no judicial determination of any legal rights of the parties to the intended action, for, all the questions relating to appointment of guardian of person and manager of the property of the mentally disordered have to be decided only by the Court which entertains the petition. Even if the Advocate General has to hold an enquiry, he is merely to see whether there is a prima facie case that should be allowed to go to the Court. When he gives his consent to the filing of petition he does nothing more than this. Needless to observe here that an executive act with the trappings of a judicial procedure is still an executive act, though overlaid with a judicial cover, and it cannot be invested with judicial character. For all these reasons we think that the decision of the Advocate General cannot be called a judicial or quasi-judicial one. It is, for all intents and purposes, merely an administrative or executive act or decision.[7] To fortify this opinion, it is important to mention this here that the Advocate General is appointed by the Governor under Article 140 of the Constitution, and it is his duty to give advice to the Provincial Government upon such legal matter, and to perform such other duties of a legal character, as may be referred or assigned to him by the Provincial Government. The above-mentioned nature of duties suggests that the forum of the Advocate General is not a Court nor is it similar to any other judicial authority. It is a purely government office, and that is why in the Punjab Government Rules of Business, 2011 it has been given the status of a special institution of the Law and Parliamentary Affairs Department.
9. The above clarification brings us to consider another point in order to provide complete answer to the second objection of the appellant, and that is, whether any law firm or advocate on the basis of Wakalatnama alone could apply to the Advocate General for obtaining his consent within the scope of section 29 of the Ordinance. The essence of this point raises the need to understand what is meant by Wakalatnama. No statutory law defines Wakalatnama. However, given the provisions of Rule 4 of Order III, C.P.C. read with subsection (3) of section 22 of the Legal Practitioners and Bar Councils Act, 1973, it can be safely said that it is a document in writing signed by a person or by his recognized agent or some other person duly authorized by him appointing an advocate to appear or act on his behalf in any Court. This means that the appointment of an advocate through a Wakalatnama gives him the power to appear and act for any person in any Court, but not before any office such as the Advocate General, and if so, we can safely conclude that the second objection of the appellant is valid, and the application made by the law firm/advocate to the Advocate General without the signature of Saqib Jang was not proper and competent, nor it can be considered that it was filed by any relative of the patient.
10. For all these reasons we are of the opinion that the petition of the respondent-Saqib Jang under Article 199 of the Constitution, that is, W.P. No.28055 of 2021 was not rightly allowed by the Single Bench. We accordingly accept both these appeals, set aside the order dated 31st May, 2021, and dismiss writ petition with the observation that the respondent-Saqib Jang shall be at liberty to file a fresh application in terms of section 29 of the Ordinance, if he so desires, which once filed, shall be entertained and decided by the Advocate General, Punjab expeditiously and in accordance with the law.
11. Office is directed to place the photostat copy of this judgment in the file of LC.A. No.42321 of 2021.
1. Ahsin Arshad and others v. Advocate General Punjab and others (PLD 2018 Lah. 9)
2. Padfield and others v. Minister of Agriculture, Fisheries and Food and others (1968) AC 997 [3]The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras [1890) 24 QBD 371] Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (1947) 2 ALL England Law Reports 680 Swami Shantanand Sarswati , v. Advocate- General, U.P.,Allahabad and others (AIR 1955 Allahabad 372)
Miss. Anita Ghulam All and 2 others v. Abdul Rehman and 4 others (PLD 1972 Karachi 649).
4. Mayer Simon Parur v. Advocate General of Kerala and others (AIR 1975 Kerala 57)
5. Raju and another v. Advocate- General H.C. Buildings, Madras and others (AIR 1962 Madras 320)
[6]Pitchayya and another v. Venkatakrish Namacharlu and others (AIR 1930 Madras 129)
Managing. Committee of Syed Salar Endowment Bahraich, through Sardar Ali and others v.
Hakim Mohd and others (AIR 1947 Oudh 22)
Islamuddin and others v. Ghulam Muhammad and others (PLD 2004 Supreme Court 633)
A.Razzak Adamjee and another v. Messrs Datari Construction Company (Pvt.) Limited and another (2005 SCMR 142)
7. Dhian Das v. Jagat Ram ((1910) 8 Indian case 1160(Lahore)]