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P L D 1970 SC 98

FARZAND ALI AND OTHERS

V/S

PROVINCE OF WEST PAKISTAN

Constitution of Pakistan (1973), Articles 241, 62, 54 & 55:
Constitution of Pakistan (1962), Articles, 178, 103, 109 & 110

Articles 178(4) (b), 103,109 & 110 (Articles 241, 62, 54 & 55 of 1973 Constitution) and Constitution (Third Amendment) Act (IV of 1965); Constitution (Fourth Amendment) Act (XV of 1965); Constitution (Sixth Amendment) Act (II of 1966) — Persons retired from service under Article 178(4)(b) (Article 241 of 1973 Constitution) — Retirement challenged on ground that amendment made in Constitution by Acts IV of 1965, XV of 1965 and II of  1966 were passed by majority votes which include 33 persons who were not qualified under Article 103 (Article 62 of 1973 Constitution) 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 Article 110 (Article 105 of 1973 Constitution) and hence constitutional amendments not assailable.

A number of persons were retired from service under Art.178(4)(b) (Article 241 of 1973 Constitution) .Their retirement was assailed on the ground that power assumed by Government for retiring them was not lawful acquired, because the amendments to athe Constitution were not made by the requisite majority of 2/3rd of the total number of members of the National Assembly as required by Article. 209 (Article 239 1973 Constitution. The contention was that although Constitution (Third Amendment) Act, 1965 was purported to have been passed by a majority of 113 votes, some 33 persons who voted in favour of the amendment were disqualified to be members under Article 103 (Article.62 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 arguments, since this was a continuing 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 usurpating of office by them was wholly without colour of title. In the circumstances it would lead to very serious consequences if all proceeding 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 55 of the Constitution)were designed to meet precisely such eventualities in consonance with 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 functionary 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 proceedings of that corporate body. This is a statutory 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. [p.124]J et seq

They were, therefore, not mere intruders and until they were held to be disqualified by a competent Court there was no othr authority which could prevent them from participating in the proceedings of the House. Therefore, clause(1) (d) of(Article 55 of 1973 Constitution) protected their acts.[p.125]K

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 Constitution Amendments themselves. Even assuming that they were disqualified they participated in the proceeding 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 55 of the 1973 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. [p.125]L et seq

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 acted under the bona fide belief that they were entitled to so act and had at least a fair colour of titles 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 55 were as good as those of dejure 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 member, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98 (2)(b) 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 direct would lead to serious inconvenience to the public and those individuals whose intersts may have been affected by the legislative measures enacted in the meantime. Thisde facto doctrine is a doctgrine 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 disqualification with 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 trhey 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 electin the Court might allow an information 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 t 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 Attorney General that if they were otherwise entitle d to the relief, the Government would not take the technical stand that that particular relief by away of a 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 noit have altered the decision regarding the validity of the impugned amendments. They would have still been protected by sub-clause(d) of clause(1) of Article 55 of the 1973 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”.[p.127]N et seq

SAEEDUR RAHMAN V CHIEF ELECTION COMMISSIONER, DACCA PLD 1965 SC 157: THE FEDERATION OF PAKISTAN V. ALI AHMAD HUSSAIN SHAH AND ANOTHER PLD 1955 FC 522; BADRUL HAQUE KHAN V THE ELECTION TRIBUNAL AND 2 OTHERS PLD 1963 SC 704 ; NAWAB SAJJAD ALI KHAN V. CHAUDHURY FAZAL ILAHI AND ANOTHER PLD 1957 LAHORE. 940. Ref.

Article 178(4) (a) (Article 241 of 1973 Constitution) — 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 satifaction 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 rremoval 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 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 difficultto 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 publicservice. An over punctiliousb or over fastidious person may well in certain circumstances be just as unsuitable as lax or careless officer having regard to the nature of his employmenat. 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.[p.130]O & P

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