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Writ Petition 53 of 1954, decided on 11th March 1955.
‑Proceedings on a petition for writ of quo warranto against the appointment, as Chief Minister of a Province, of a person who was under a disqualification imposed under S. 3 of the Public and Representative Offices (Disqualifica tion) Act, 1949 but the period of whose disqualification was cur tailed by an amending order of the Governor‑General‑Whether the Province or the Federation are necessary or proper parties to proceedings.
In a petition for a writ of quo warranto, it was contended by the petitioner that the Governor‑General had no power to amend his previous order of disqualification passed against the respondent under section 3 of the Public and Representative Offices (Disqualification) Act, 1949 so as to curtail the period of disqualification of the respondent, and thus to enable the Provincial Governor to appoint the respondent as the Chief Minister of the Province. The respondent put forward a pre liminary objection that the Federation and the Province were necessary parties to the writ proceedings.
Held, that while they were proper parties, and while, if they had applied for it, they would have been heard, they were not necessary parties ; that in the circumstances of the case, it was not desirable, at the expense of an adjournment, to make either of them parties to the proceedings.
, S. 4‑Does not affect Governor‑General's powers, if any, to amend or cancel an order of disqualification etc. passed under the repealed Act.
An order of disqualification, under section 3 of the Public and Representative Offices (Disqualification) Act, 1919, for a period of six years, was after the passing of the Public and Representative Offices (Disqualification) (Repeal) Act, 1954, amended so as to curtail the period of disqualification from w six years to the one already gone through. It was contended on a petition for a writ of quo warranto, against the curtailment, that section 4 of the Act expressly provided that the repeal should not affect any disqualification already incurred or awarded.
Held, that if the Governor‑General had power to amend an order of disqualification, before the passing of the Repealing Act, and if the mere repeal of the Public and Representative Offices (Disqualification) Act, 1949 did not by itself termi nate that power, then there was nothing in section 4 of the Repeal Act to terminate that power or prohibit its use. It was true that the disqualification, having been curtailed, had been affected by the Governor‑General's order ; but it was not the repeal, but the use of the power, that had affected it.
, S. 3‑Order of disqualification‑Governor‑General has no power to amend‑General Clauses Act (X of 1897), S. 21.
An order disqualifying a person from holding public office for a period of six years was later amended by the Governor General, curtailing the period to one already expired.
The amending order was attacked in a petition for a writ of quo warranto as being ultra vires the Governor‑General.
Held, that once the Governor‑General's order disqualify ing a person from holding a public office is notified the person is disqualified for the period mentioned in the order, there being no express words authorising a second order by way either of amendment or of rescission.
The order which the Act empowers the Governor‑General to make bears a close resemblance to the sentence which a judge pronounces upon a finding of guilty : such an order, a solemn act, is made with all due regard to the facts and circumstances of the case, and like a sentence is presumably unalterable by the authority which has made it. Non‑appeal able sentences are by no means unknown to the law, and there is no reason why the Legislature should be presumed to intend a power of review or revision rather than finality of such orders.
Section 21 of the General Clauses Act (X of 1897) being inapplicable to Acts of the Constituent Assembly, the ques tion of an inference as to power to amend derivable from provisions of the Act was decided on the common law principle of justice, equity and good conscience. [Case‑law discussed].
, S. 2‑Does not affect Governor‑General's powers to make orders of disqualification etc. in cases pending before a Court or Tribunal, and, by implication, leaves un affected power to amend such orders if Governor‑General had any power of amendment.
Since by section 4 of the Repealing Act the Governor General has power to make an order under section 3 of Public and Representative Offices (Disqualification) Act, 1949 upon a reference pending before a Court at the date of the Repeal Act, it would appear that if he had power under section 3 to amend such an order, then such power also must be presumed to have been continued, and it would appear also a necessary implication that if he could exercise this power of amendment in regard to references pending at the date of repeal, he could also exercise this power of amendment in relation to references heard and decided before the date of repeal.
The Governor‑General, however, had no such power of amendment.
Tufail Ali A. Rehman for Petitioner.
A. K. Brohi, for Respondent.
---‑On the report of a Tribunal set up by the Governor of Sind finding the opponent guilty of mis conduct, the Governor‑General in exercise of his powers under section 3 of the Public and Representative Offices (Disqualification) Act 1949 (hereinafter referred to as PRODA) was pleased by order gazetted on 26th January 1953 to disqualify the opponent and declare him ineligible in terms of that section and to appoint a period of six years.
Section 3 of PRODA, which was passed by the Constituent Assembly, provides for the setting up of a Tribunal or the moving of the High Court by the Governor‑General or a Governor; it provides that a person found guilty of miscon duct as defined in the section by the Tribunal or High Court shall be disqualified for being chosen as a Minister, etc., of the various Governments and local bodies and authorities, and shall be ineligible for holding any office of profit under the Crown "upon the notification of an order of the Governor General in this behalf and for such period not exceeding ten years as the Governor‑General may appoint in the order."
Section 4 provides that where a person becomes disqualified as provided in section 3, his office shall become forthwith vacant. Section 6 provides that an order of the Governor General under section 3 shall be final and shall not be called in question in any Court.
Pausing here regarding section 6, it should be observed that Mr. Brohi conceded that this familiar formula does not confer validity upon any order which is ultra vires of section 3 or prevent the Court from determining whether an order is or is not ultra vires of section 3 : Mr. Brohi also contended, and rightly in our opinion, that section 6 has no bearing on the question whether the Governor‑General has or has not the power to vary an order made under section 3.
On 20th September 1954 the Constituent Assembly passed the Public and Representative Offices (Disqualification) (Repeal) Act 1954 (hereinafter referred to as the Repeal Act). The preamble merely stated that it is expedient to repeal the PRODA. The Act reads as follows :
1. Short title and commencement.‑(1) This Act may be called the Public and Representative Offices (Disqualifica tion) (Repeal) Act, 1954 ;
(2) It shall come into force at once.
2. Repeal.‑The Public and Representative Offices (Dis qualification) Act, 1949, is hereby repealed.
3. Annulment of pending proceedings.‑All proceedings under the Public and Representative Offices (Disqualification) Act, 1949, pending before the Governor‑General of Pakistan or a Governor of a Province shall be deemed to have been dropped.
4. This repeal shall not affect any penalty, forfeiture; disqualification or punishment already incurred or awarded under the said Act or any reference pending before any Court or Tribunal on or before the 1st September 1954.
On 20th October 1954 upon a petition by the opponent, the Governor‑General by a gazetted order amended his order of the 26th January 1953 so that the period of disqualification of the opponent should run from that date up to the 20th October 1954.
On or about 8th November 1954 the Governor of Sind appointed the opponent as the Chief Minister of Sind.
The petitioner, contending that the Governor‑General had no power to amend his previous order, and that hence the Governor of Sind had no power to appoint the opponent, being still disqualified from appointment as Chief Minister, prays for a writ in the nature of quo warranto.
The above facts are admittedly common ground.
A preliminary objection was taken by Mr. Brohi that the Federation and the Province of Sind were necessary parties. We thought that while they were proper parties and if they had applied to be heard we should have heard them, yet they were not necessary parties, and that since the opponent is the Chief Minister of Sind and is represented by Mr. Brohi which was at one 'time the Advocate‑General of Sind and was at the date of the Governor‑General's amending order Minister for Law in the Central Government, since in Tamiz‑ud‑din's case a Full Bench had recently heard the Advocate. General of Pakistan elaborating all possible arguments against this Court's jurisdiction to issue writs in the nature of quo warranto, and since the decision in that case had left only points of law falling within a narrow compass for consideration in this present case, it was not desirable at the expense of an adjourn ment to issue notice to either the Federation or the Province of Sind.
The petitioner contends (1) that the Governor‑General, having passed an order under section 3 of PRODA, was functus officio having been given no power by that section to amend an order once passed and (2) that as a consequence of the Repeal Act, even if before repeal section 3 conferred on him the power of amendment, that power had ceased (a) because the whole of PRODA had been repealed without any saving of his powers and (b) because section 4 of the Repeal Act provided expressly that the repeal should not affect any disqualification already incurred or awarded.
Any of the above grounds, 1, 2 (a) and 2 (b), if estab lished, would be fatal to the Governor‑General's amending order, for Mr. Brohi conceded, as was also stated in the Governor‑General's order, that the prerogative does not extend to the making of this order, and that the Governor General's power to make this order depends solely upon the provisions of PRODA.
Ground 2 (b) may be briefly rejected. If the Governor‑General had power to amend before repeal and if the mere repeal of PRODA did not by itself terminate that power, then there is nothing in section 4 of the Repeal Act to terminate that power or prohibit its use. It is true that the disqualifica tion, having been curtailed, has been affected; but it is not the repeal, but the use of the power, that has affected it.
Had the Governor‑General before the Repeal Act power to amend an order passed under section 3 of PRODA Mr. Brohi contends that, though the General Clauses Art 1897 does not apply to Acts of the Constituent Assembly, yet the principle of section 21 of that Act should be applied in construing section 3 of PRODA. Section 21 reads as follows "21. Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend vary or rescind any notifications, orders, rules or bye‑laws so issued".
The word "notifications" is a later insertion.
At first sight it would appear that orders were ejusdem generis with rules and bye‑laws, and thus to have, as in section 9 of .the Indian Independence Act 1947 or as in the Civil P. C., a connotation of subordinate legisla tion. Section 21, however, occurs in the group of sections 20 to 24 headed "Provisions as to Order, Rules etc., made under enactments"; in section 22 we find "orders with respect to the establishment of any Court or office or the appointment of any judge or officer thereunder or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under the Act," while in section 23 regarding previous publication rules and bye‑laws only are mentioned. I may mention that in section 24 there is the phrase "appointment, notification, order, scheme, rule, form or bye‑law," but the words "appointment, notification" are later insertions, and front their inclusion no convincing infer ence appears possible.
The word "order" in section 22 is not used in the res tricted sense of legislation, and is divorced from rules and bye laws in section 23. It is true that the orders in section 22 are limited and defined, but even so the sense of the word is administrative, and presumably the word is used elsewhere in the group in the same sense. This view is supported by authority. It is true that Niyogi, J. in his referring order in henketesh v Emperor (A I R 1938 Nag. 513) considered that the meaning of "order" was restricted, but the Full Bench left the matter open. No other case was cited to us in favour of the restricted meaning. On the other hand an order of detention A I R 1954 Pat. 44 (F. B.) at 51, an order postponing an election A I R 1927 Cal. 704 at 706, an order of requisition A I R 1952 All. 959 at 961 have been held to fall within the meaning of order in section 21 of the General Clauses Act or an identical section of the Provincial Act. The learned Chief Justice of Lahore in P L D 1955 Lah. 61 recently by a considered judg ment and on similar reasoning came to the same conclusion that the meaning of "orders" in section 21 is not confined to legislative "orders". In that case the order upheld was one under section 401, Criminal P. C. revoking the unconditional remission of a sentence, and it appears to follow that the qualification which Mr. Brohi thought necessary to insert that the amendment shall not operate to the detriment of a person affected is unjustified : on general principles also it appears that if a power to amend is given by statute in general terms it is not competent for a Court to curtail the generality of that power.
I am not prepared to dissent from the authorities which have refused a restricted meaning to the word "orders" in section 21.
Mr. Brohi quoted cases in which principles of sections of interpretative acts have been applied. In A I R 1943 Cal. 285 at p. 308 Sen, J. said "Even if section 38, Interpretation Act, does not apply in terms to the Letters Patent, I have no hesita tion in saying that the principle underlying section 38 should be applied in construing clause 44". In A I R 1945 Mad. 521 a single judge relying on the above case considered that he could look at the General Clauses Act as "a rule of pru dence," and further that in the absence of any legislative enactment, Courts have to apply principle of equity and good conscience analogous to the principles of the General Clauses Act, and he proceeded to apply the principle of section 6, General Clauses Act, as a general rule of law. In A I R 1953 S. C. 357 at page 9 Mahajan, J. delivering the judgment of the Court said with reference to section 38, Interpretation Act, and section 8, General Clauses Act, "assuming, but not conceding, that strictly speaking the provisions of the Interpreta tion. Act and the General Clauses Act do not for any reason apply, we see no justification for holding that the principles of construction enunciated in those provisions have no applica tion for construing those charters".
In these cases no attempt has been made to ascertain the common law rule as to interpretation or to ascertain whether the Interpretative Acts were merely declaratory or whether they modified the pre‑existing rules, if any, settled by the common law. In A I R 1933 Cal. 280, however, Patterson, J. (with whom Panckridge, J agreed) found that the rule of construction recognised in Stevenson v. Oliver ((1841) 8 M & W 234) had been given statutory expression in section 38 Inter pretation Act and sections 6 and 30, General Clauses Act with reference to repealed statutes, though the case of tempo rary statutes which have expired by efflux of time had not been dealt with in those Acts. He said "the learned judges who dealt with that case were of opinion that not only rights acquired under a temporary Act, but also penalties imposed thereunder would survive its expiration. The principle under lying their decision appears to have been that transactions that have been completed, rights that have been acquired and penalties that have been incurred while a statute is in force, are not (in the absence of an express provi sion to the contrary) affected by the mere fact of the statute having ceased to be in force, a principle which has since received statutory recognition in the Interpretation Act of 1889 in the case of express repeal, though not as yet in the case of expiration by effluxion of time. This rule seems to me to be founded not only on considerations of convenience, but also of reason and justice.
With great respect I consider that the approach of Patterson, J. is correct ; where no statute applies, the case is to be determined by us according to justice, equity and good conscience (Bombay Regulation IV of 1820) which means the rules of English law if applicable to conditions in Pakistan. Lord Hobhouse said in Sheikh Masludin's case (11 Bom. 560), that this phrase is generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. In Muhammad Raza v. Abbas Bandi Bibi (59 1 A 236) Sir George Lowndes said at p. 246
"But apart from this, it seems clear that after the passing of the Transfer of Property Act in 1882 a partial restriction upon the power of disposition would not, in the case of a transfer inter vivos, be regarded as repugnant: see section iv of the Act. In view of the terms of this section, and in the absence of any authority suggesting that before the Act a different principle was applied by the Courts in India, their Lordships think that it would be impossible for them to assert that such an agreement as they are now considering was con trary to justice, equity and good conscience.
It was said by Lord Hobhouse in Waghela Rajsanji v. Shekh Masludin (L R 14. I A 89, 96), that the expression equity and good con science was generally interpreted as meaning English Law, if found applicable to Indian society and circumstances. If this is to be the test there is authority that in England a partial restriction would not be regarded as repugnant even in the case of a testamentary gift. So in re : Macleay, (L R 2 0 Eq.186), Sir Ceorge Jessel M. R. upheld a condition attached to a devise in fee that the devisee should never sell out of the family, pointing out that this had been the law from the time of Coke; and in Doed Gill v. Pearson ((1805) 6 East 173) Lord Ellenborough in the King's Bench affirmed the validity of a similar restriction."
Lord Normand said in Maharajah of Pithiparam's case (A I R 1949 P C 1 = P L D 1948 P3 C 229
"It is not disputed, and the Courts in India in this case have recognised that the common law of England is applicable so far as is consistent with justice, equity and good sense." The cases are many where the Privy Council has considered whether the English rule should or should not be applied. The case just cited is an instance of a navigable river and their Lordships citing Lord Sumner's judgment, which in turn followed American decisions, held that if England had rivers like the Susquehanna, the rule of English law would be different.
The fundamental rules of interpreting statutes have been quoted in many judgments of the Board from judgments in cases of England. For instance in Pahala's case (18 Pat. 234), Lord Atkin quotes Lord Wensleydale and Lord Halsbury (who was quoting Tindal, C. J.) in the following two passages
"In construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther."
"If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words alone "do in such case best declare the intention of the lawgiver. But if any doubt arises.. . . . ."
In Rajendra Prasad's case (571 A 296), it was said. "In construing a document whether in the English or the vernacular, the shall 6e observed, and this is undoubtedly firmly established as a rule of justice, equity and good conscience. We have been cited no case to shew that a power to make an order is presumably intended to include a power to amend that order: it is true that the Indian legislature adopted this rule in section 21, but there is no presumption that the statute either is declaratory of the common law or has altered the common law. It may be observed that in England this device of abbre viation in section 32 (3) of the Interpretation Act is limited to rules, regulations and bye‑laws.
Certain passages in Craes on Statute Law (5th Edition) at pages 262 and 272 were cited by Mr. Tufail Ali to show that a power is exhausted on its first exercise : the passages themselves are tentative, refer to a matter of prerogative and to a matter of bye‑laws, and are not supported by judicial decision, and a note to section 32 (2) Interpretation Act in Halsbury's Statutes doubts this rule. There is an obiter dictum of Lord Godard in R.. v. Metropolitan Police Commissioner ((1953) 2 A E R 717 at 719) "That paragraph shows clearly, as one would expect, that a licence may be revoked or suspended. Indeed, leaving out of account irrevocable licences granted under a seal and possibly licences coupled with an interest, the very fact that a licence is granted to a person would seem to imply that the person granting the licence can also revoke it." I respectfully con sider this dictum sound, and, if that is so, there is no inflexible rule that a power is exhausted on its first exercise. I think the correct principle is that the legislature intends to authorize no more and no less than what it states by express words or necessary implication.
Here the statute provides that the person shall be dis qualified upon public notification of an order of the Governor General and for such period as the Governor‑General may appoint in the order, and his office shall become forthwith vacant. The plain meaning is that once the Governor‑General s order is publicly notified the person shall be disqualified for the period mentioned in the order. The statute has declared what shall be the result of an order once passed by the Governor‑General: it has not provided that any different result should ensue upon variation or recission of the order. The same order which notifies disqualification is to contain the period of disqualification: there is no provision for variation of the period. Certainly therefore there are, no express words authorising a second order by way either of amendment or of rescission. But, it is argued, the Governor‑General's order is administrative (it has been so held in Hamid‑ul‑Haq's case (P L D 1953 F C 279), and every administrative order is impliedly open to variation. No authority for this proposition has been cited. In this case the order which PRODA empowered the Gover nor‑General to make bears a close resemblance to the sentence which a Judge pronounces upon a finding of guilty: such an order, a solemn act, is made with all due regard to the facts and circumstances of the case, and like a sentence is presumably unalterable by the authority which has made it. Non- appealable sentences are by no means unknown to the law, and I can see no reason why the legislature should be presumed to intend a power of review or revision rather than finality.
Turning now to ground 2 (a), I need not repeat my observations regarding Mr. Brohi's contention that the prin ciple of the General Clauses Act should be applied; in this connection the particular provision is section 6 which pro vides inter alia (9 B & C 750) that repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment repealed, and (2) that any remedy may be instituted, continued or enforced as if the repealing Act had not been passed. While the first provision is largely consistent with the common law, the second provision is not. Tindal C. J. said in Kay v. Goodwin (1) : "I take the effect of repealing a statute to obliterate it as completely from the records of Parliament as if it never had been passed: and it must be con sidered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and conclud ed whilst it was an existing law. In Lemm v. Mitchel (1912 A C 400), the Privy Council said that the law had been shortly and suffi ciently stated by this quotation, and their Lordships applied the exception. Lord Tenterden said in Suntees v. Ellison "It has long been established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed." Avory J. said in Bennett v. Talton (118 L T Rep. 788) that the following quotation from Maxwell was undoubtedly the common law principle "Where an Act expired or was repealed it was formerly considered in the absence of provision to the con trary as if it had never existed except as to matter and transactions past and closed. Where therefore a penal law was broken, the offender could not be punished under it, if it expired before he was convicted, although the prosecution was begun while the Act was in force." The cases collected at p. 380 and 381 in Craes are to the same effect, except pos sibly Hough v. Windus, and in this last case Lord Bowen held that the creditor's right to delivery and the sheriff's duty to deliver had been expressly saved (Craes at p. 384).
In R. v. Mawgan (8 A & E. 496) a presentment as to the non‑repair of a highway had been made under 13 Geo. 3 C 785'24, but before the case came on to be tried, the Act was repealed. "If", said Lord Denman, C. J. "the question had been related merely to the presentment that no doubt is com plete. But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding."
No doubt there is a strong presumption that an Act is not retrospective so as to effect vested rights. An Act to affect vested rights retrospectively must do so by express enactment or necessary intendment (Colonial Sugar v. Irving (1905, A C at p. 372). In this case before the Privy Council however there was no express repeal of the Order in Council, whereas in the present case we have an express repeal coming into force at once.
The intention of the legislature on the matter, however, is to be gathered inter alia from the Act as a whole. We find proceedings pending before a Governor‑General or a Governor deemed to be dropped, but since references pending before a High Court or Tribunal are expressly saved therefore the Governor‑General's power to make an order on a finding of guilty reached by a High Court or Tribunal on such a refe rence is saved by necessary implication. It would appear therefore that the proceedings pending before the Governor -General envisaged by the Legislature are proceedings which precede or lead up to a reference to a Court or Tribunal, and the joining of Governors with the Governor‑General in section 3 of the Repeal Act supports this view : for Governors have the power to set up Tribunals or move Courts, but no power with relation to proceedings after a finding by the Court or Tribunal. Since then the Governor-General had power to make an order under section 3 of PRODA upon a reference pending before a Court at the date of the Repeal Act, it would appear that if he had power under section 3 to amend such an order, then such power also must be presumed to have been continued, and it would appear also a necessary implication that if he could exercise this power of amendment in regard to references pending at the date of repeal he could also exercise this power of amendment in relation to references heard and decided before the date of repeal. This reasoning is supported by the strong presumption against retrospective affecting of vested rights.
Mr. Brohi argued that if the Governor‑General had the power to amend his order then a person affected had a cor responding right to petition the Governor‑General to exercise this power, and that this right was a vested right. Mr. Tufail argued that this was no more a vested right than was in Abbot's case ((1895) A C 425) "the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right." I consider, that the right to petition the Governor- General is more akin to the right of appeal. If the Legis lature has given an administrative authority a power to amend, then it intends that the authority will exercise the power upon good cause shown by a petitioner: if the petitioner has been affected by the previous order, then he stands in a position different from the rest of the community. I consider therefore, that if the Governor‑General had the power to amend, then Mr. Khuhro had a vested right to apply for amendment.
Since, however, I have held that the Governor‑General had no power to amend his order, the petition in my opinion succeeds, and I would issue a writ of quo warranto and order the opponent to bear the costs of this petition, a cer tificate under section 205 Government of India Act is given.
--‑I concur. The Court must proceed on the basis that the Constituent Assembly was aware that the Central General Clauses Act, 1897 did not apply to its own acts and intended, (sic) as the law clearly is, that in the absence of specific law, the Court should in consonance with the principles of justice, equity and good conscience, apply the English common law as to the effect of repeal of a statute, unless it is found unsuitable in the conditions here prevailing. Why it should be found unsuitable has not been said in argument, which has been that through oversight or mistake, the Central General Clauses Act, 1897 has not been adapted to cover acts of the Constituent Assembly, arid therefore, though the Act does not in terms apply, the principle of section 6 of the Act must be applied. It is possible for the Court neither to assume that there was such an oversight or mistake, nor to hold that in the absence of specific provision, the law to be applied is not the English common law, as a principle of justice, equity and good conscience; unless it is found unsuitable to the conditions here prevailing. To the affirmative decisions of the Privy Council extending over a long period on this question, effect must be given.
The same principle has been applied by the Privy Council even in cases where the Transfer of Property Act 1882 did not in terms apply. In Varden Seth Sam v. Luckpathy Royjee Lallah ((1862) 9 M I A 303, 321) Lord Kingsdown said
"It is not shown that any‑ local law, any lex locirei sitae, exists, forbidding the creation of a lien by the contract and deposit of deeds which existed in this case ; and by the general law of the place where the contract was made, that is,, the English law, the deposit of title deeds as a security would create a lien on lands ; though, as between parties who can convey by deed only, or conveyance in writing, such lien would necessarily be equitable."
In Maharaja of Jeypore v. Rukmini Pattamahevi ((1919) 46 I A 109, 118) Lord Phillimore adverting to section 111 of the Transfer of Property Act, said
"The statutory provision not being retrospective (See section 2) does not govern the present case. But it is in substance the placing in a statutory form of the rule of law which had been already adopted by the Courts of India Kally Dass Ahiri v. Monmohini Dassee (I L R 24 C 440). They are directed by the several charters to proceed where the law is silent, in accordance with justice, equity and good con science, and the rules of English Law as to forfeiture of tenancy may be held, and have been held, to be consonant with these principles and to ba applicable to India Nizaruddin v. Mamtazuddin (I LR28 C135)."
In Mehrban Khan v. Makhna (571 A168 171) Lord Tomlin said
"In Wadhela Rajsanji v. Sheikh Masludin ((1887) L R 14,1 A 89,96) Lord Hobhouse pointed out that a direction to decide by equity and good conscience was generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. The terms of section 60 of the Transfer of Property Act are an indication that the rules of English law relating to a mortgagor's right to redeem are applicable to Indian Society and circumstances. The matter must, therefore, be determined by the rules of English law."
The English common law as to the effect of a repeal has been stated by the Privy Council in Lemm v. Mitchell (1912 A C 400).
Except as to matters expressly saved by the repealing act, the public and Representative Offices (Disqualification) Act, 1949 must be regarded as never having existed but for transac tions past and closed. Section 4 of the repealing Act saves "any penalty, forfeiture, disqualification or punishment already incurred or awarded under the said Act or any reference pending before any Court or Tribunal on or before the 1st September 1954."
The submission that section 4 of the repealing Act does not affect the right of the Governor‑General to add to, amend, vary or rescind his order under section 3 of the Act is based on the assumption that such a right exists. In truth, there is no express or implied saving of any such right in the repealing Act and the English common law is that after the repeal the Act must be regarded as never having existed but for transactions past and closed. The power claimed for the Governor General does not exist.
Assuming that the Court will consider the application of the principle of section 21, General Clauses Act, 1897, two questions arise, namely (1) whether it is appropriate to the power of the Governor‑General under section 3 of the Act and (2) if so, whether the order of the Governor‑General dated 20th October 1954 is within the power.
Reading section 3 with section 5 of the Act, it appears that the Constituent Assembly regarded the proceedings under section 3 as trial and punishment, in addition to any other (sic) under any other law for the time being in force. In express terms section 3 of the Act prescribes a trial by judicial authority of a representative person to ascertain whether he is guilty of misconduct in or in any matter relating to his office. Then, when the person is found guilty there is the power in the Governor‑General to appoint the period of disqualification not exceeding ten years, which is in essence the power to punish for misconduct judicially found. Analogous instances of disqualification are found in section 69 (1) (e) and (f) of the Government of India Act 1935 and Paras. 1 to 5 of the Government of India (Provincial Elections) (Corrupt Practices) Order, 1936, though there, the periods of disqualifica tion are fixed and power is given to remit it. The power placed in the Governor‑General would, without a doubt, be construed as a power to punish, if it were placed in the judicial authority holding the trial and the fact that the power has been placed in the Governor‑General does not change the essentially punitive character of the power. There is a change in the person or persons who are to exercise the power, but not in its true nature.
Now the power is to be exercised by the Governor‑General "in his discretion" that is, without ministerial advice, so that the inference arises that the Constituent Assembly regarded the Governor‑General for the time being as the right person to appoint or fix the period of disqualification, that is to say, to apportion the punishment to the misconduct found, for misconduct has been widely defined.
It may be argued that one object of the power to appoint a period of disqualification may be to maintain the cleanliness and health of the exercise of functions to which the disqualifica tion relates, that is to say, to protect society, but that may equally be said to be an object of other forms of punishment.
The view that the power of the Governor‑General is in essence one of punishment, is confirmed by the description of the Act, and its preamble which express the object of the Act as being, "to provide for the debarring from public life for a suitable period of person judicially found guilty of misconduct in any public office or representative capacity".
The power to punish is indeed essentially different from a power to regulate procurement or supplies of space, materials or goods or conditions in which certain lawful activities may be performed in public interest, the exercise of which to be and remain, effective, requires periodical adjustment to chang ing situations. Indeed in such cases the power to add to amend, vary or rescind is ancillary or incidental to the original power. That, however, cannot be said of the power to punish.
To remit punishment is a prerogative or statutory right or power. The Governor‑General has neither, as his own order dated 20th October 1954, concedes.
But assuming that the Governor‑General has the power to add to, amend, vary or rescind his order passed under section 3 of the Act, the question remains whether the order dated 20th October 1954 is within the power so construed.
Happily, the order does not lack expression of the Governor‑General's mind, so that it is possible to ascertain t tic basis upon which he has acted Para. 1, 2 and 3 deal with the motion and grounds thereof, made by the respondent. In para 4 is expressed the need to determine whether the Governor‑General has the power to amend, vary or rescind his original order dated 26th January 1953 under section 3 of the Act. In para 5 are considered subsection (2) of section 295 Government of India Act and the Commission of Appointment and their effect. In para. 6, the power is found in the principle of section 21, Central General Clauses Act 1897. Para. 7 pro ceeds to consider the grounds for the prayer of the respondent. Para. 8 states that the nature and circumstances of the charges were "very carefully considered" at the time of the order of disqualification and that on the merits of the case there was no ground for interference. Para. 9 refers to section 4 of the Repealing Act and finds the order of disqualification dated 26th January 1953 saved.
Para. 10 poses the question whether it would be just and proper to continue the disqualification; having regard to the repealing Act, and para. 11 examines "the reasons which led to the passing of the repealing Act by the Constituent Assembly". It finds the Constituent Assembly's reason, in the use of the Act in the past as a weapon of political vendetta, a contention with which the Governor‑General himself did not agree. It finds the saying section 4 of the repealing Act illogical, unethical and discriminatory in respect of cases saved by it, and takes into account that the public opinion in the country had strongly denounced the repealing Act and its discriminatory character.
Para. 12 finds the effect of the repealing Act indefensible "in equity", expresses a duty in the Governor‑General "to met right a palpable injustice, and proceeds to use his "discre tionary powers" under section 3 of the Act (which it finds saved by section 4 of the repealing Act) and to remit the disqualification from 20th October 1954.
Upon this order of remission, three questions arise:
(1) Has the Governor‑General used the power (assuming it exists) within' the objects or purposes of the Act.
(2) Has the Governor‑General used his discretion correctly.
(3) Has the Governor‑General in making the order acted on a wrong view of the law.
These constitute three overlapping aspects conveniently stated for the consideration of the question whether the order dated 20th October 1954 is infra vires the Governor‑General.
In Stoofton and Jarlington Railway Co. v. John Brown ((1860) 9 House of Lords Cases 246‑131 Revised Reports 154, 159,1160) Lord Cranworth referred to the general principle founded in good sense and sanctioned by case law that the power of a railway company to acquire land for the purposes of the railway must be exercised bona fide with the object of using it for the purposes authorised by the legislature and not for any sinister or collateral purpose and that if it were made out that the power was being used to confer certain benefits to its shareholders, that would be a solid ground for preventing the company from taking the land. In Lewis v. Weston Super Mare Local Board ((1888) 40 Ch. D 55, 62) Sterling, J. referred to Lord Cranworth's statement of the law and applied the principle to powers vested in a public Corporation. In Municipal Council of Sydney v. Campbell Law Reports ((1925) App. Cas. 338,(P. C.)) Duff, J. said that a body such as the Municipal Council of Sydney, authorised to take land compulsorily for specified purposes, will not be per mitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will interfere.
The purpose for which the power under section 3 of the Act was given to the Governor‑General mist be looked for, in the Act itself. The power is to appoint or fix the period of disqualification, that is to say the punishment, of a person judicially found guilty of misconduct. To use the power as Paras. 11 and 12 of the order do in order to give effect to the Governor‑General's private opinion as to what it calls the illogical, unethical, inequitable and discriminatory effect of the repealing Act in disagreement with the provisions and policy of the repeal, is to act, to say the least, wholly outside the object or purpose of the power conferred on the Governor- General by section 3 of the Act.
In The Queen v. The Vestry of St. Pancras (LR(1890)24QBD371,375) Lord Esher. M., R. said, as to the sole discretion vested by statute in a vestry upon the resignation of his office by its servant, that the vestry must fairly consider the application of its servant and exercise its discretion on it fairly, and not take into account any reason for their decision which is not a legal one, and that if people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion then in the eye of the law they have not exercised their discretion. In Sharp v. Wakefield (L R (1891) A C 173,181 H L), Lord Halsbury L. C. said that the legislature had given credit to the licensing magistrates for exercising a judicial discretion that they would fairly decide the questions submitted to them, and not by evasion attempt to repeal the law which permits public houses to exist or evade it by avoiding a plain exposition of the reasons on which they act.
The reasons given in Paras. 11 and 12 of the order are improper for the guidance of the Governor‑General's discre tion for reasons which have been stated already.
In Rex v. Board of Education ((1910) 79 L J Rep. K B 595, 598), Cozens Hardy M. R. said that the statute enabled the Board of Education to decide a question of fact, although it may involve the consideration of the true meaning and effect of the statute, and if its decision is based upon a wrong interpretation of the statute, the decision is not conclusive, and it is competent to the Court in an action to do what is right between the parties. In Hubli Electricity Co. v. The Province of Bombay (AIR(1949)PC136,139=PLD1948PC 295), Lord Uthwatt said, that the question what obligations are imposed on licensees by the Electricity Act 1910 is a question‑of law, but the Government was not the final arbiter of it, and if in expressing an opinion for the purpose of the section in question, it gives effect to a wrong apprehension of the obli gations imposed on the licensees by the Act, the result would be that the Government had not expressed such an opinion as is referred to in the section.
In determining the question or forming an opinion whether the respondent should continue to be disqualified, the Governor‑General has been under misapprehensions as to three matters of law which have materially influenced the determination or opinion. The true meaning of the word "appoint" in section 3 of the Act is to "fix", the object of the power is to punish and the Governor‑General is bound to carry out the policy and fulfil the objects of the acts of the Constituent Assembly.
The result is that the order dated 20th January 1954 is ultra vires the Governor‑General and of no effect.
---On 26th January 1953, H. E. The Governor‑General of Pakistan passed an order under section 3 of the Public and Representative Offices (Disquali fication) Act, 1949, (hereafter for the sake of brevity called "PRODA") disqualifying the respondent for being and for being chosen as a Minister etc., for a period of six years. This disqualification was therefore to expire on 26th January 1959. On 20th October 1954, however, His Excellency was pleased to amend his previous order and he directed that the period of respondent's disqualification should be for the period already undergone, i.e., it should run from 26th January 1953 till 20th January 1954. Thereafter on 9th November 1954 the res pondent was sworn in as the Chief Minister of Sind. The petitioner has by this petition for a writ of quo warranto challenged the validity of the Governor‑General's order dated 20th October 1954 and the consequent appointment of the respondent as Chief Minister of Sind.
On behalf of the respondent it is claimed that the order of the Governor‑General dated 20th October 1954 is perfectly valid in law and therefore the respondent is properly appointed as the Chief Minister.
In this connection it is necessary to state here that the Constituent Assembly of Pakistan passed the PRODA (Repeal) Act, 1954 on 21st September 1954. It is necessary to reproduce this Act here
"1. (1) This Act may be called the Public and Repre sentative Offices (Disqualification). (Repeal) Act, 1954.
(2). It shall come into force at once:
2. The Public and Representative Offices (Disqualifica tion) Act, 1949, is hereby repealed.
3. All proceedings under the Public and Representative Offices (Disqualification) Act, 1949, pending before the Governor‑General of Pakistan or a Governor of a Province shall be deemed to have been dropped.
4. This repeal shall not affect any penalty, forfeiture, disqualification or punishment already incurred or awarded under the said Act or any reference pending before any Court or Tribunal on or before the 1st September, 1954.
The only question involved in this petition is whether the Governor‑General had the power to reduce the period of res pondent's disqualification in this manner. The PRODA does not specifically confer such power on the Governor‑General. Reliance is placed on the principle embodied in section 21 of the General Clauses Act, 1897, though it is clearly admitted in the order of the Governor‑General and by the learned Advo cate for the respondent that the General Clauses Act itself does not apply to this case for the simple reason that PRODA is not a Central Act or Regulation. Section 21 of this Act reads as follows "Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye‑laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye‑laws so issued".
I propose to deal with this question under four heads, viz :‑
(1) What is the legal effect of the absence in the PRODA of an express provision for power to amend or vary the order passed under section 3.
(2Whether the principle of section 21 will apply, even though there be a contrary intention.
(3) What is the effect of the PRODA (Repeal) Act, 1954.
(4) Whether the order of the Governor‑General dated 20th October 1954 is intra vices and within jurisdiction.
Point No. 1.‑I will take up each point separately. I will take up the first point now. It is admitted on behalf of the respondent that section 21, General Clauses Act does not in terms apply to PRODA. It therefore follows immediately that the principle of section 21 will not apply. If the Legislature had intended to confer the power of amending or varying the order, they would have clearly said so. Before the passing of the General Clauses Act such a provision was always made. To illustrate my point, I will refer only to three Acts out of so many. Section 20 of the Press and Registration of Books Act, 1867 reads as follows :‑
"The Provincial Government shall have power to make such rules as may be necessary or desirable for carrying out the objects of this Act, and from time to time to repeal, alter and add to such rules.
All such rules, and all repeals and alterations thereof, and additions thereto, shall be published in the Official Gazette.
Section 62 of the Divorce Act, 1869 reads as follows :‑
"The High Court shall make such rules under this Act as it may from time to time consider expedient, and may from time to time alter and add to the same Provided that such rules, alterations and additions are consistent with the provisions of this Act and the Code of Civil Procedure.
All such rules, alterations and additions shall be published in the Official Gazette."
Section 20 of the Court Fees Act, 1870 reads as follows :‑
The High Court shall, as soon as may be, make rules as to the following matters :‑
The High Court may from time to time alter and add to the rules so made.
The same practice was followed in England. Whenever the Parliament proposed to confer the power to amend or vary anything and the Act was not covered by the Interpretation Act, 1889, an express provisions was made therefore. For illustration. I would refer to section 309 (2) of the Govern ment of India Act, 1935. Under this Act, His Majesty‑in- Council was empowered to issue Orders‑in‑Council. Such an order was not a rule, regulation or bye‑law within the meaning of section 32 (3), Interpretation Act, and hence an express provision had to be made to vary the Order‑in‑Council. Section 309 (2) reads as follows :‑
"Subject to any express provision of this Act, His Majesty in Council may by a subsequent order, made in accordance with the provisions of the preceding subsection, revoke or vary any order previously made by him in Council under this Act."
Similarly; an express provision for amending an order under the Indian Independence Act, 1947 had to be necessarily made in section 19 (5), which reads as follows
"Any power conferred by this Act to make any order includes power to revoke or vary any order previously made in the exercise of that power."
In this connection it is also important to bear in mind that the General Clauses Act was held not to apply to the Acts of the Provincial Legislature at a time when the Province concerned had no General Clauses Act of its own. I would refer to an important ruling of the Calcutta High Court in the case of Woomesh Chunder Bose v. Soorjee Kanto Roy Chowdhry, (I L R 5 Cal. 713.) wherein their Lordships observed as follows :‑
"The Judge then cited Act I of 1868 of the Indian Council. That Act, which is commonly known by the name of the General Clauses Act is in terms an Act for shortening the language used in the Acts of the Governor‑General in Council, and is therefore not applicable to the Acts of the Bengal Legislature. The Judge considered that it was " legal and equitable to accept the guidance of the superior "
but I am not aware of any rule of law or equity, which extends an interpretation clause of the superior Legislature, which is limited to the enactments of that Legislature, to those of another Legislature, though it may be sub ordinate."
It was also held by the Bombay High Court in the case of Queen‑Empress v. Pherojshah Hormusjee (1 B L R 164) that the General Clauses Act had no application to the Bombay Abkari Act which was passed by the Governor of Bombay in Council.
In view of these decisions, every Province in united India had to pass a General Clauses Act (while the Central General Clauses Act of 189 was in full force) (vide Sind General Clauses Act). All this was not done without a sound basis. I have referred to a few authorities only in support of this theory. The only legal conclusion therefore is that since section 21 of the General Clauses Act does not in teams apply to the PRODA and since the PRODA contains no express provision for power to amend or vary the order once passed under section 3, the principle of section 21 can never be held to apply to this case.
Point No. 2.‑I will now take up point No. 2. There can be no two opinions on the point that the principle of section 21 cannot apply if contrary intention of the Legislature is clear from the provisions of the PRODA. No doubt the words " unless there is contrary intention " do not appear in section 21 as they do in section 32 (3) of the Interpretation Act, 1889, but that would appear to make no difference. In most of the Acts, the interpretation clause is qualified by the words " Unless there is anything repugnant in the subject or context ". In a particular Act these words were missing and yet it was held that the omission made no difference and the qualifying words had necessarily to be read into the definition. The reason was simple. If it was shown that the word concerned was not used in the context in the same sense in which it was defined, it could not possibly be given that mean ing merely because the interpretation clause did not contain the qualifying words In this connection we have an important ruling of the Calcutta High Court reported in A I R (1943) Cal. 345, where their Lordships held as follows
"When a definition in a statute does not contain the qualifying words " unless there is anything repugnant in the subject or context" those qualifying words are always understood. Words must take their colour from the context and need not have the same meaning in every section."
Their Lordships relied for their conclusion on the ruling reported in 1940 App. Cas. 613.
General rules of construction set forth in the General Clauses Act are to be used for finding out the intention of the Legislature. If the Legislature has indicated this intention, the question of applying the rules of construction does not arise. Therefore, if the PRODA indicates that an order once made cannot be amended or varied, the principle of section 21 will not apply. The intention of the Legislature has to be gathered from the object of the Act and the purpose which it is designed to serve. The scheme of the PRODA becomes clear‑from the long title and preamble thereof. It is " An Act to provide for the debarring from public life for a suitable period of persons judicially found guilty of misconduct in any public office or representative capacity". Thus the PRODA provides for a judicial inquiry at the highest level into charges of misconduct etc. and for disqualifying the person concerned from holding certain public offices for a suitable period. It could never have been the intention of the Legis lature that the "suitable" period once decided after full consideration on a judicial finding of guilty should be con sidered at a later stage as "unsuitable". Power to amend or vary does not merely include the power to reduce the period of disqualification. It also includes the power to increase the period of disqualification once fixed or to reverse the decision once arrived at not to impose a disqualification. Surely the Legislature could not have intended these two contingencies. On a parity of reasoning, the period once fixed could not be reduced. When the Governor‑General considers the charges proved and decides the question regarding the suitability of the period of disqualification, the PRODA could not have intended that the period so decided upon should again be modified at a later stage.
It is also important to bear in mind that whenever the Legislature intends that a disqualification once incurred could be removed later on, an express provision is always made for that purpose. To illustrate this I will cite three instances :‑
Section 26 (1) (f) of the Government of India Act, 1935 reads as follows :‑
"26 (1) A person shall be disqualified for being chosen as, and for being, a member of either Chamber‑
(f) if, having been nominated as a candidate for the Federal or any Provincial Legislature or having acted as an election agent of any person so nominated, he has failed to lodge a return of election expenses within the time and in the manner required by any Order in Council made under this Act or by any Act of the Federal or Provincial Legis lature, unless five years. have elapsed from the date by which the return ought to have been lodged or the Governor- General, acting in his discretion, has removed the disquali fication Similar is the provision in section 69 (1) (f) of the same Act.
Para. 8 of Part IV of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936 reads as follows :‑
"Any disqualification under paragraphs two to five of this Part of this Order arising in connection with an election to the Legislature of, or to a local body in, a Province may be removed by the Governor of that Pro vince, and any other disqualification under the said paragraph two may be removed, before the establishment of the Federation, by the Governor‑General in Council, and, after the establishment of the Federation, by the Governor‑General "
No such provision has been made in the PRODA and that clearly indicates the contrary intention of the Legislature. In these circumstances the act of passing the order becomes complete as soon as the order is made, and thereupon the autho rity making the order becomes functus officio. As soon as the Governor‑General passed his order under section 3 of the PRODA on 26th January 1953 disqualifying the respondent for a period of six years, he had exhausted all his powers under the statute and he could not modify that order.
Point No. 3.‑This is the position of law under the PRODA 1949 itself. I will now consider the effect of the PRODA (Repeal) Act, 1954.
Assuming for the sake of argument, that there was power originally under the PRODA to amend or vary the order under section 3, this power did not survive after the Act was repealed. The Common Law rule is that when an Act is repealed it is considered as having never existed on the Statute Book except as regards transactions past and closed. The same rule would apply here, and the cases in which punishment has already been imposed cannot be reopened. The power to amend is co‑extensive with the power to make the original order. Since after the repeal the power to make the original order came to an end, the power to amend no longer survived. In fact, this legal position has been admitted in the order of the Governor‑General himself. It is necessary to reproduce para. 9 of his order. It reads as follows
"The second ground put forward by the petitioner is that the Constituent Assembly having repealed the Public and Representative Offices (Disqualification) Act, 1949, on the 20th September 1954, it would be unfair and inequitable not to annul the order of disqualification imposed upon him on the 26th January 1953. The position in law at present is that although the‑Public and Representative Offices (Disqualification) Act, 1949, has been repealed and will not be available for use in respect of acts of misconduct after the 1st September 1954, an order of disqualification passed under the Act before that date is not affected by the repeal. Section 4 of the Public and Representative Offices (Disqualification) (Repeal) Act, 1954, reads as follows
'This repeal shall not affect any penalty, forfeiture, disqualification or, punishment already incurred or awarded under the said Act or any reference pending before any Court or Tribunal on or before the 1st September 1954.
As the law stands, therefore, the petitioner cannot, as of right, claim that the order of disqualification passed against him should be rescinded.
So this was the admitted legal position after the repeal of PRODA, and as regards the merits of the case, His Excellency was pleased to observe as follows:
"The nature of the charges and the other circumstances relevant to them were very carefully considered at the time and that the order of the 27th January 1953 was passed with due regard to all the facts and circumstances of the case. On the merits of the case, therefore, there is no ground for interference with the order."
I do not consider at necessary to say anything more on this point in view of the position on Law and facts having been admitted in the order of Governor‑General himself.
Point No. 4.‑In order to answer the question under this head, it is necessary to see the reasons assigned for the reduc tion of the period of respondent's disqualification. The pertinent portion of the order is set out in paras 10 and 11 which read as follows
"10. There is another aspect of the matter, however, which requires very careful consideration. In view of the fact that the Public and Representative Offices (Disqualifica tion) Act, 1949, has now been repealed, would it be just and proper if any orders of disqualification passed under the Act or any proceedings initiated under it are continued undisturbed
11. For an answer to this question, it is necessary to examine the reasons which led to the passing of the repeal ing Act by the Constituent Assembly. During the discussion in the Constituent Assembly on the repealing Bill, the Public and Representative Offices (Disqualification) Act, 1949, was attacked primarily on the ground that it had been misused in the past as a weapon of political vendetta, and had caused wholly unjustifiable harrassment to Ministers of Government, I myself do not agree with this contention but I must take note of the fact that the contention was seriously advanced and accepted by the Constituent Assembly. The logical result of this acceptance should have been to cancel all orders of disqualification passed under the Act, or at least all orders which are still in force, and also to annul any reference under the Act still pending at present before a Court or Tribunal. This, however, was not done. The fact that the existing orders of disqualification under the Act and the pending references were not withdrawn by the repealing Act destroys the very basis of the argument which was put forward in favour of the repeal. The resultant position is that while the disabilities prescribed under the Act are maintained in the case of certain individuals found guilty of misconduct, no such disabilities are to apply to individuals against whom cases of misconduct under the Act were pending consideration with the Governor‑General or the Governors or to those who in future may be guilty of acts of misconduct. It would be wholly illogical and unethi cal to maintain this position, I also take note of the fact that public opinion in the country has strongly denounced the repealing Act, and particularly its discriminatory character to which I have just referred."
A perusal of this order clearly shows that the Governor -General was fully aware of the intention of the Constituent Assembly in passing the PRODA (Repeal) Act : He was fully aware of the object and purpose of that Act; He was also pleased to hold that on merits as well as law, the respondent was not entitled to a reconsideration of the original order dated 26th January 1953. He also very rightly held that the PRODA was not abused in the case of the respondent the PRODA could not be said to have been abused in the case of a person found judicially guilty. In face of all these findings, the ultimate order cannot be defended on any ground for the simple reason that it violates the Statute. The order may be of an executive or administrative character ; it may be passed by the Governor‑General in his discretion ; even so, it was necessary that the administrative or executive order and the discretion should not outrun the Statute. The order of the Governor‑General runs against the policy and purpose of the Statute, viz., the PRODA (Repeal) Act. As such it is clearly ultra vires and without jurisdiction and is therefore a nullity in the eye of law.
In view of all these reasons, I would grant this petition. A writ of quo warranto will issue against the respondent who will bear the costs of the petitioner.
A. H. I Petition granted.
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