Find a Lawyer

Civil Appeals Nos. 99, 100, 107 of 1966 and 3 of 1967, decided on 28th November 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 26th October 1966, in Writ Petitions Nos. 1248, 1104, 1297 and 1219 of 1966, respectively).

Arts. 98 & 171‑--Quo warranto‑---Pre‑election disqualification of member of Legislature-Whether can be questioned in writ jurisdiction.

Where the argument was that once the name of a person has been registered on the roll of electors, his nomination paper accepted and he has been allowed to contest the election success fully, his election cannot be challenged in any other manner save under the specific law providing for challenging elections notwith standing the fact that no provision has been made in the Constitution or any other law for prescribing a special procedure to meet such a case

Held, this contention is not acceptable for more than one reason: Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the statute. It determines the private rights of two persons to the same office but a proceeding for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing inde pendent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinising a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available precisely for such a purpose.

The introduction of election petitions to test the validity of elections and statutory provisions for appeals, have no doubt reduced the demand for the remedy but have not excluded it alto gether. It will still be available in all cases where the matter is, as in the case under consideration, outside the scope of the statutory remedy. Thus, as stated in Halsbury's Laws of England, Third Edition, Vol. II, p. 148; "even in a case where an election petition is the only remedy when an election is objected to on the ground that the person whose election is questioned was disqualified at the time of the election, yet the remedy by injunction in lieu of quo warranto is available where a person becomes disqualified after election or where there is a continuing disqualification‑‑in other words, where the objection is a continuous holding of the office by the person disqualified.

There is no reason why relief by way of quo warranto should not be available in a case where the remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualification is a continuing one which debars a person not only from being elected to an office but also from holding that office.

The third reason for holding that a proceeding of this nature would not be barred in such circumstances is that there is nothing either in the Constitution of 1962 or in any statute for the provision of another remedy for rectifying such illegality. Clause (2) of Article 104 would not be attracted to a case of continuing liability, although under clause (2) of Article 103 the disqualifica tion is not only a disqualification for election but also a dis qualification from being a member or holding the office.

In this view of the matter it cannot be said that there is any adequate alternative remedy available within the meaning of clause (2) of Article 98 of the Constitution of 1962 to defeat the right given by sub‑clause (b)(ii) of clause (2) of Article 98 to call upon any person holding or purporting to hold a public office to show under what authority of law he claims to hold that office. To refuse the remedy in such a case would produce the strange result that the Court would be thereby perpetuating an illegality. Therefore, Article 171 of the Constitution of 1962 could not bar a proceeding under sub‑clause (b) (ii) of clause (2) of Article 98 for challenging the title of the disqualified persons from continu ing to hold the office of a Member of the National Assembly which is in every sense of the term a public office.

Darley v. The Queen 12 CI. & F 537; Rex v. Speyer (1916) 1 K B 595; Halsbury's Laws of England, Third Edn., Vol. II, p. 148; The Queen v. Ireland (1868) 3 Q B 130; Robert Frost v. The Mayor and Aldermen of the City and Borough of Chester 119 E R 578 and Ferris' Treatise on Extraordinary Legal Remedies, 1926 Edn., p. 133 ref.

Arts. 111 & 98‑---Validity of proceedings in Assembly---‑Internal proceedings of Assembly relating to its proper business is immune from challenge in Courts but question relating to title of person to be member of Assembly or his continuing to sit there is not question pertaining to internal proceedings of Assembly and as such not immune from attack in Courts‑--"Internal proceedings of Assembly"‑--What constitute.

While it is true that all that fairly concerns the internal proceedings of the House relating to its proper business is immune from challenge in Courts, it cannot be conceded that a question relating to the title of a person to be a Member of the House or to continue to sit therein is a question pertaining to the internal proceedings of the House. It is a question affecting the constitution of the House and, therefore, it is not a question which can possibly be barred from enquiry by the Courts under Article 111 of the Constitution. This is not a matter which pertains either to the regulation of the procedure of the House or the conduct of its business or the maintenance of order in the Assembly or affecting any of its privileges. This is not a question, therefore, which, relates to the "internal proceedings" of an Assembly. Clause (1) of Article 111 bars the Courts only from enquiring into the validity of "proceedings in an Assembly" in the formal sense and nothing more.

It is difficult to define as to what constitute "internal pro ceedings" but this much is clear that they do not extend to any thing and everything done within the House. Thus as a general rule a criminal act done in the House would perhaps not be out side the course of criminal justice (vide observations of Stephen, J. in Bradlaugh v. Gossett at p. 283). The test indicated by Sir Erskine May in his book on Parliamentary Practice is as to whether what is said or done "forms part of a proceeding of the House in its technical sense, i.e. the formal transaction of business with the Speaker in the Chair or in a properly constituted com mittee". It would be neither possible nor desirable to attempt any exhaustive classification of the matters that maybe comprised within the term "internal proceedings" but it will be sufficient for my purpose to indicate that whatever is not related to any "formal transaction of business" in the House cannot be said to be a part of its "internal proceedings".

Sir Erskine May on Parliamentary Practice; Fazlul Quader Chowdhury v. Muhammad Abdul Haque P L D 1963 S C 486 and A. K. Fazlul Quader Chowdhury v. Shah Nawaz and others P L D 1966 S C 105 ref.

Art. 98‑Constitutionality of law passed by Legislature‑Courts not debarred from enquiring into.

Hubbard v. Lowe 226 Fed. 135; Missouri Pacific Railway Company v. Kansas 248 U S 276 and Proprietors of the Edinburg and Dalkeith Railway Company v. John Mauchope of Edmonstone 8 E R 279 ref.

Arts. 110 & 111‑Provi sions apply as much to constitutional amendments as to other legislative business of Assembly.

Constitution (Fourth Amendment) Act (XV of 1965); Constitution (Sixth Amendment) Act (ll of 1966)‑Persons retired from service under Art. 178 (4)(b)‑Retirement challenged on ground that amend ments made in Constitution by Acts IV of 1965, XV of 1965 and II of 1966 were passed by majority votes which included 33 persons who were not qualified under Art. 103 as it stood originally and as such power assumed by Government in retiring them was not lawfully acquired‑Held, members concerned not being mere intruders their participation in proceedings protected under Art. 110 and hence constitutional amendments not assailable.

A number of persons were retired from service under Art. 178(4)(b) of the Constitution of Pakistan (1962). Their retire ment was assailed on the ground that the power assumed by Government for retiring them was not lawfully acquired, because the amendments to the Constitution were not made by the requisite majority of 2/3rd of the total number of members of the National Assembly as required by Art. 209 of the Constitution. The contention was that although Constitution (Third Amend ment) Act, 1965 was purported to have been passed by a majority of 113 votes, some 33 persons who voted in favour of the amend ment were disqualified to be members under Art. 103 of the Constitution as it stood originally. The Constitution (Fourth Amendment) Act, 1965 and the Constitution (Sixth Amendment) Act, 1966 were also ineffective having been passed with the participation of illegally added members :

Held, the Court is unable to accept this contention of the appellants, because, even on their argument, since this was a con tinuing disqualification and not a disqualification which had been acquired subsequent to election, the Members concerned could not be unseated until they were held by a competent Court to be disqualified. Their right to sit and participate in the proceedings of the House until such time would not be wholly illegal, for, having been duly elected to the House, they would have prima facie a right to sit and participate in its proceedings. Article 104 would not be attracted to their cases, for, their disqualifications could not be said to have arisen after their election and if there be no other machinery save that provided by an information in the nature of a quo warranto for ousting them from the House then it can hardly be said that the usurpation of office by them was wholly without colour of title. In the circumstances it would lead to very serious con sequences if all proceedings of the House in which they had participated during this period are declared to be void. It seems that the provisions of sub‑clause (d) of clause (1) of Article 110 were designed to meet precisely such eventualities in consonance with the general principle that the acts of statutory functionaries or corporate bodies affecting third persons should not be invalidated merely by reason of the fact that the func tionary concerned or some of the members of a Corporate Body are subsequently discovered to have been disqualified from being entitled to hold that office or to participate in or vote at pro ceedings of that corporate body. This is a salutary and beneficial provision for avoiding uncertainties regarding official acts which would cause serious inconvenience to the public and is to be found in almost all statutes setting up corporate bodies, which are considered in law to have a separate and distinct entity from those of its members.

They were, therefore, not mere intruders and until they were, held to be disqualified by a competent Court there was no other authority which could prevent them from participating in the proceedings of the House. Therefore, clause (1) (d) of Article l lm protected their acts.

This is not a direct challenge to the right of such persons to the Members of the Assembly but only a collateral attack upon their right to participate in the proceedings of the House in respect of the impugned Constitutional Amendments themselves. Even assuming that they were disqualified they participated in the proceedings bona fide in assertion of a claim of right and, as such, the legislative measures passed by the Assembly with their participation were protected by sub‑clause (d) of clause (1) of Article 110 of the 1962‑Constitution. There is, however, yet another principle which can be invoked in aid for holding that in such collateral proceedings the acts of de facto members cannot be invalidated but must be treated as being equivalent to or as good as the acts of de jure members.

Upon these principles it was strenuously argued that the Third, Fourth and the Sixth Constitutional Amendments are now unassailable, because, at any rate the allegedly disqualified respondents had acted as de facto members, for, they had acted under the bona fide belief that they were entitled to so act and had at least a fair colour of title and they have also performed their duties with public acquiescence. They were not purely intruders. Therefore, their acts even apart from the provisions of sub‑clause (d) of clause (1) of Article 110 were as good as those of de jure members of the National Assembly. There is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98 (2)(6) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests may have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights. In saying this, however, the Court would also like to take this opportunity of pointing out that it is difficult to appreciate upon what principle the allegedly disqualified members were allowed to participate in the passing of the Third Amendment itself which was an amendment for removing their own disqualifications A ith regard to which the doubts had arisen. It would have been more dignified and more in keeping with the principle that persons directly interested in a measure being proposed in the House should not participate in the voting thereof if they had refrained from doing so. This principle is embodied in the Rules of the National Assembly itself (vide sub‑rule (3) of rule 152) and if authority is needed for this, one might refer to the case of The Queen v. Ward (1873) 8 Q B 210 where Blackburn, J. had indicated that if a person were to wilfully and contumaciously act in his own election the Court might allow an informa tion to go. The Court is not also unmindful of the fact that during the pendency of the proceedings in the High Court the appellants did apply to amend their petition for including therein a relief for a direction in the nature of quo warranto, but this application was rejected on the concession of the Attorney‑General that if they were otherwise entitled to the relief, the Government would not take the technical stand that that particular relief had not been claimed. Assuming, therefore, that the relief by way of a quo warranto had been claimed the Court is of the opinion that even so it would not have been of any help to the appellants on the question of the validity of the amendments themselves. If the quo warranto had been allowed by the High Court, it would have taken effect only from the date of the pronouncement of the High Court's judgment and not from any date anterior thereto and that would not have altered the decision regarding the validity of the impugned amend ments. They would have still been protected by sub‑clause (d) of clause (1) of Article 110 of the 1962‑Constitution and the de facto doctrine, because, a quo warranto issues only where it is found that a public office is filled under a colour of title."

Saeedur Rahman v. Chief Election Commissioner, Dacca P L D. 1965 S C 157; King v. Beer (1903) 2 K B 693; The Federation of Pakistan v. All Ahmad Hussain Shah and another P L D 1955 F C 522; Election Commission, India v. Saka Venkata Rao A I R 1953 S C 210; Pakistan v. Ahmad Saeed Kirman and 3 others P L D 1958 S C (Pak.) 397; Badrul Haque Khan v. The Election Tribunal and 2 others P L D 1963 S C 704 ; lex et consue tude Parliamenti ; W. W. Willoughby on Constitutional Law of the United States, Vol. II, p. 652; Field v. Clark 143 U S R 649; Bradlaugh v. Gossett 12 Q B D 273; Nawab Sajjad Ali Khan v. Ch. Fazal Ilahi and another P L D 1957 Lah. 940; Edwin Ward Scadding v. Louis Lorant 10 E R 164; Re: Toronto R. Co. and City of Toronto 46 D L R 547; Colley on Constitutional Limitations, Eighth Edn., Vol. 2, p. 1357; Amnon Rubinstein on Jurisdiction and Illegality, p. 204 and Queen v. Ward (1873) 8 Q B 210 ref.

(f) Constitution of Pakistan (1962), Art. 178(4)(a)‑Expression "public interest"‑--Government alone best judge to determine.

Where the contention was that action under sub‑clause (a) of clause (4), Article 178 of the Constitution can only be taken in the public interest and since there are no words in this clause to show that the maker of the Constitution intended to leave this question merely to the subjective satisfaction of the authorities it must be inferred that the question as to whether action was taken in the public interest or not was objectively determinable:

Held, compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal. There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best judge of these reasons. It is not possible for the Court to sit on judgment over the action of Government, if from materials disclosed it does not appear that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left to the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government, it is said, has an absolute discretion to retire any of its officers at this stage. In the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is diffi cult to lay down any yardstick by which "public interest" can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An‑ over punctilious or over fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine and therefore, it must of necessity be left to the subjective satisfaction of the employing authorities.

Mir Abdul Baqi Baloch v. Government of Pakistan and 5 others P L D 1968 S C 313; Government of West Pakistan v. Begum Agha Shoris.b Kashmiri P L D 1969 S C 14; Chowdhury Muhammad Ismail v. Punjab Province P L D 1956 Lah. 125 and Zafarul Ahsan v. Republic of Pakistan P L D 1960 S C 113 ref.

Civil Appeal No. 99 of 1966

Muhammad Shafi Sheikh, Senior Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney (absent on 26th and 27th June 1969) for Appellant.

Raja Said Akbar Khan, Advocate‑General West Pakistan (Muhammad Abdullah Bajwa, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for Respondent.

Civil Appeal No. 100 of 1966

Manzoor Qadir, Senior Advocate Supreme Court instructed by M. Siddique, Senior Attorney for Appellant.

Muhammad Ismail Bhattl, Senior Advocate Supreme Court (Mahmud Ahmad Qureshi, Advocate Supreme Court with him) instructed by Iftikharuddin Ahmad, Attorney for Respondent No. 1.

Iqbal Ahmad Qureshi, Attorney (absent) for Respondent No. 21.

Respondents Nos. 2 to 20 and 22 to 38: Ex parte.

Civil Appeal No. 107 of 1966

Maqbool Ahmad Sheikh, Advocate Supreme Court instructed by M. A. Rahman, Senior Attorney (both absent on 26th and 27th June 1969) for Appellant.

Raja Said Akbar Khan, Advocate‑General West Pakistan (Saeedur Rahman Khan, Advocate Supreme Court with him) (absent on 26th and 27th June 1969) instructed by Ijaz All Sheikh, Attorney for Respondent.

Civil Appeal No. 3 of 1967

M. S. Baqar, Advocate Supreme Court instructed by Mushtaq Ahmad, Senior Attorney (both absent on 26th and 27th June 1969) for Appellants.

Raja Said Akbar Khan, Advocate‑General West Pakistan (Saeedur Rahman Khan, Advocate Supreme Court with him) (absent on 26th and 27th June 1969) instructed by Ijaz Ali Sheikh, Attorney for Respondent.

Civil Appeals Nos. 99, 100, 107 of 1966 and Civil Appeal No. 3 of 1967

Sharifuddin Pirzada, Attorney‑General of Pakistan (S. A. Chowdhury, Advocate Supreme Court with him (at Dacca) instruct ed by A. W. Malik, Attorney (at D zcca only).‑Under Order XLV, rule 2, Supreme Court Rules.

Dates of hearing: (Lahore) 3rd to 6th June and (Dacca) 26th and 27th June 1969.

Find a Lawyer Near You

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