h1

P L D 1950 SIND 49

M.A. KHUHRO
V/S
THE FEDERATION OF PAKISTAN AND OTHERS
Per Hassanaly Agha, J.(a) Government of India Act, 1935, Sections. 88, 50 and 51(4)
Constitution of Pakistan (1973) Articles.128,130 and 132–
r/w Section 8 of Indian Independence Act, 1947
This is a suit for declaration and injunction.

The plaintiffs case is that he was an elected member of the Sind
Legislative Assembly and became Premier of Sind on 15th of August 1947. On 26th April, 1948, His Excellency the Governor of Sind dismissed the plaintiff from the office of the Premier of Sind and issued a communiqué that the plaintiff was dismissed on charges of maladministration, gross misconduct in the discharge of the duties and responsibilities and corruption, and that a judicial tribunal was being set up to enquire into the above charges. On 12th May 1948, His Excellency the Governor of Sind promulgated ordinance No. II of 1948, and on 1st June 1948 appointed the Hon’ble Sir Justice Abdul Rashid, Chief Justice of Lahore High Court, and Hon’ble Mr. Justice Shahabuddin, Judge of the High Court of Dacca, as two members of the tribunal. An enquiry was thereafter held by this tribunal into the charges leveled against the plaintiff. After completing the enquiry, the tribunal made its report on 31st December 1948. Thereafter, on 6th January, 1949, an Act entitled “The Public and Representative Offices (Disqualification) Act, 1949” was passed by the Constituent Assembly. On 22nd March, 1949, by Notification No. F-222-GG/47, published in the Gazette of Pakistan, His Excellency the Governor General of Pakistan disqualified the plaintiff for a period for three years for being and being chosen as a Minister, Deputy Minister or Parliamentary Secretary, whether for the Federal Government or for a provincial Government, a Member of the Constituent Assembly, the Legislature of the Dominion, the Federal Legislature or a Provincial Legislature, any local body or local authority, and also declared him ineligible for holding any office of profit under the Crown for a similar period. It is against this order of the Governor-General of Pakistan that the plaintiff has filed his suit against the Federation of Pakistan and the province of Sind for a declaration that the order of disqualification passed by the Governor-General under section 3 of the Public and Representative Offices (Disqualification) Act, 1949 is illegal and ultravires, and that he continues to be a member of the Sind Legislative Assembly and the Constituent Assembly of the Dominion of Pakistan. He has further asked for an injunction restraining the defendants from regarding him as disqualified by virtue of the order passed under section 3 of the Public and Representative Offices (Disqualification) Act, 1949, or from taking steps to fill his seat in the Constituent Assembly or in the Sind Legislative Assembly. The grounds on which he seeks the above relief are that the Public and Representative Offices (Disqualification) Act, 1948 “has been unconstitutionally passed and is ultra vires, and is of no legal effect, being beyond the law-making powers of the Constituent Assembly, that the provisions of the above Act could not be given retrospective effect and did not apply in the case of the plaintiff, that the ordinance No. II of 1948 promulgated by his Excellency the Governor of Sind, under the Seventh Schedule to the Government of India Act, was illegal and ultra vires as the Governor had no legislative power to promulgate this Ordinance, nor did any circumstances exist under section 88 of the said Act to entitle His Excellency the Governor of Sind to promulgate the above Ordinance, and further that His Excellency the Governor of Sind did not promulgate this Ordinance “with the aid and advice of his Cabinet.

In the written statement filed on behalf of the defendant no. 1, the
Federation of Pakistan, it is stated that the order of disqualification of the plaintiff made by the Governor General of Pakistan is not an illegal or inoperative order, and that the public and Representative offices (Disqualification) Act, 1949, is neither illegal nor ultra vires. As regards the Sindh Ordinance II of 1948, in the written statement it is admitted that in promulgating this Order, HisExcellency the Governor of Sindh did not act “with the aid and advice of his ministers”, but still the Ordinance was properly promulgated and the tribunal set up by the Ordinance did find the plaintiff guilty of the charges of misconduct, and this finding was a finding within the provisions of section 3 of the Public Representative Offices (Disqualification) Act, 1949, on which His Excellency, the Governor-General could pass the disqualification order.

On these pleadings the following (amoung other) issues were framed:

1. Whether the Ordinance II of 1948 was ultra vires ?
2. Whether the Public and Representative Offices (Disqualification) Act, 1949, is ultra vires, and of no legal effect ?
3. Whether the Special Court of Inquiry can be deemed to be a tribunal set up in this behalf for the purpose of the Public and Representative Offices (Disqualification ) Act, 1949 ?
4. Whether the report of the Special Court of Inquiry can be made the basis of the Public and Representative Offices (Disqualification) Act ?
5. Whether the order of disqualification is inoperative, illegal and ultra vires ?
6. ……………
7. Whether is barred by section 6 of the Public and Representative offices (Disqualification Act)?

Issue no.1. Coming to issue no. 1, Mr. Siraj has argued that Ordinance II of 1948 was ultra vires o three grounds : –

(i) No circumstances existed to give power to the Governor under section 88 to promulgate the Ordinance.
(ii) That the Government cannot act except with “the aid and advice ” of his ministers, and in this case he did so without their aid and advice. The Ordinance was therefore, not properly promulgated.
(iii) That section 88, clause (3) of the Government of India Act, says : –

“If and so far as an Ordinance in this section make any provision which would not be valid if enacted in an Act of Provincial Legislature assented to by the Governor, it shall be void.

In the present case the Ordinance makes provision which would not be valid if enacted in an Act of Provincial Legislature as it does not relate to any of the items in Lists II and III of the Seventh Schedule of the Government of India Act.

So far the first objection is concerned, it can easily be disposed of. The wordings of the section are : —

“If at any time when the Legislature of a province is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinance as the circumstances appear to him to require.”

From this it is clear that it is the Governor himself, who is to be satisfied about the existence of the circumstances which make it necessary for him to take immediate action. The Ordinance no. II of 1948 promulgated by him reads : —

“Whereas the Legislature of the Province is not in session, and whereas the Governor of Sindh is satisfied that circumstances exist which render it necessary for him to take immediate action to set up a special Court for investigation and inquiry in certain matters”.

This clearly shows that the Governor was satisfied about the existence of the circumstances which rendered it necessary for him to promulgate the Ordinance.

Coming to the second objection regarding the Governor not having acted with the aid and advice of his Council of ministers, Mr. Siraj has relied on section 50 of the Government of India Act, 1935 (as adapted by the Pakistan (Provisional Constitution) Order 1947) which says that there shall be a council of ministers, to aid and advise the Governor in the exercise of his functions, and On section 8 clause(c) of the Independence Act, 1947, which says :

“So much of the said provisions as requires the Governor-General or any Governor to act in his discretion or exercise his individual judgment as respects any matter, shall cease to have effect as from the appointed day. ”

and has argued that, under the Government of India Act as it stands at present, the Governor has no power to act in his discretion or in exercise of his individual judgment, and he is bound to act in all matters with the aid and advice of the council of his ministers. Anything, therefore, done by the Governor except on the advice of the council of his ministers is illegal.

The reply of the others side is that there is no provision in the Government of India Act to the effect that the Governor is bound to act only with the aid and advice of his council of ministers, and that there is only a constitutional convention by which the Governor is expected to act only with the aid and advice of the ministers, and not a statutory obligation upon the Governor to be guided by the advice of his council of ministers. Mr. Manzoor Qadir has, in support of this contention, relied on section 51, clause (4) of the Government of India Act, which says :

“The question whether, and if so what, advice was tendered by the ministers to the Governor, shall not be enquired into in any Court. ”

It is true that the whole scheme of the Act is that the Governor should be a constitutional Governor who is expected to act with the aid and advice of his ministers. There is, however, no definite provision in the Act which creates an obligation on him to be guided by the advice of his ministers. The words “aid and advice” in section 50 seem to have been deliberately used to keep the matter outside the cognizance of the Courts of law and to leave it to the Governor to act according to constitutional convention prevailing in all the other Dominions. At one stage of the proceedings, I was inclined to be of the view that, as the defendant no.1 had admitted in his written statement that the Governor had not acted on the advice of his ministers, I could go into the question and decide whether on account of this the Sindh Ordinance II of 1948 was properly promulgate or not. But on a further consideration of the matter, however, I am of the opinion that clause 4 of section 51 takes away completely the jurisdiction of the Courts to decide this question. In my opinion, the question whether the Governor did or did not act on the advice of his ministers, cannot directly or indirectly be considered by the Court. Even if I had held that this question can be gone into by the Court, the objection must fall on the ground mentioned above, namely that a Governor’s act would only be against constitutional convention and not against any statutory obligation; it cannot, therefore, affect the legality of the Ordinance. [p. 51 to 58]

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