h1

P L D 1993 PESHAWAR 207

NAWABZADA MOHSIN ALI KHAN AND OTHERS
V/S
GOVERNMENT OF N.W.F.P. AND OTHERS
Per Abdul Karim Khan Kundi, C.J.(a) Constitution of Pakistan (1973) Art. 112 & 105-

The power of Chief Minister to advise dissolution of the Provincial
Assembly is not entirely unfettered because a Chief Minister against whom there exists notice of a resolution for a vote of no-confidence or against whom a vote of no-confidence has been passed cannot advise dissolution. These fetters are not trivial especially when we find that in the United Kingdom and Japan even that Prime Minister can advise dissolution against whom a vote of no-confidence has been passed. Be that as it may, the Legislature in its wisdom has not deemed it necessary to put more fetters on the power of the Chief Minister to advise dissolution, therefore, we cannot structure the discretion. The authority cited by Mr. K.M.A. Samdani is distinguishable as it relates t powers conferred by the subordinate Legislation and not by the Constitution. [p. 226] C

The contention in regard to the recording of reasons for the advice has
also not impressed us and the observations made in Muhammad Anwar Durrani v. Province of Balochistan PLD 1989 Quetta 25 that reasons in support of advice would naturally promote healthy democratic conventions being obiter dicta do not have a binding effect. Dissolution of Provincial Assembly on the advice of the Chief Minister is a part of the democratic process recognized in Parliamentary democracy and the Chief Minster being the leader of the majority in the House has a vested right to advise dissolution and determine its timing n political grounds, therefore, it is not necessary for him to give reasons for the advice. Recording of reasons is necessary only in case of dissolution of Provincial Assembly by the Governor in his discretion under clause (2) of Article 112 which stands on a different footing and has a different parameter. Needless to mention that both are altogether different. [p. 226 & 227] D

The role of the Governor in case of dissolution of the Provincial
Assembly in his discretion hardly needs any emphasis but in case of dissolution on the advice of the Chief Minister his role is limited and benign. The expression “shall” used n clause (1) leaves no room for doubt that he is commanded by the Constitution to dissolve the Provincial Assembly forthwith if advised by the Chief Minister. Another factor, which curtails his role, is that the advice has the germs of an order as it entails dissolution after the expiry of forty-eight hours. The object of the time frame provided in clause (1) is to make the advice effective in the event f inaction on the part of the Governor and to wind up important pending matters like passage of Bills and not to enable the Governor to dissect the advice and thrust his will on the Chief Minister because in view of the time frame provided in clause (1) such activities would be an exercise in futility. Article 112 is an independent clause while Article 105 is a clause subject to the other provisions of the Constitution including Article 112(1), the overriding clause and, therefore, Article 105 providing for reconsideration of the advice by the Chief Minister does not control the operation of Article 112(1) of the Constitution. Even otherwise the desired role of the Governor seems meaningless because an advice returned for reconsideration can be resubmitted without much loss of time an under Article 105(1) the Governor is bound to act on it. The Constitution does not conceive a racing match between the notice-giver and the advising Chief Minister and if the notice is given in the Assembly as envisaged by the Constitution and not in a calandestine manner there will be no need for the Governor to hold an inquiry as he will be informed of the notice by the Provincial Secretariat or the Assembly Secretariat or he well come to know of it himself through the electronic and the press media. Under Article 130(5) of the Constitution Governor has, no doubt, the power to require the Chief Minister of obtained a vote of confidence from the Assembly but if under the given circumstances the Chief Minister is asked o obtained a vote of confidence a session of the Provincial Assembly shall have to be summoned which is indeed a time consuming exercise and it is matter of commons knowledge that such a session is ordinarily summoned when the Governor has made up his mind to sack the Chief Minister which is, however, not the relevant factor in the case. The Chief Minister cannot also be asked to submit the advice for consideration to the Cabinet as provided in Article 131© because it deals with day to day functions of the Chief Minister and the Ministers and proposals for legislation and has no connection whatsoever with the powers of the Chief Minister vis-à-vis the dissolution of the Provincial Assembly. Article 130(1) provides for a Cabinet of Ministers with a Chief Minister at its head, to aid and advise the Governor in the exercise of his functions and Article 105(1) provides for the performance of functions by the Governor on the advice of the Cabinet or the Chief Minister. Article 112(1) reserves the function of the dissolution of Assembly by the Governor only on the advice of the Chief Minister with no concern of the Cabinet. [p. 227 & 228] E

(b) Constitution of Pakistan (1973) Art. Arts. 112 & 136-

As mentioned earlier the words ‘notice of a resolution for a vote of
no-confidence has been given’ appearing in the Explanation were substituted for the words ‘resolution for a vote of no-confidence has been moved’ by the Constitution (Eighth Amendment) Act, 1985. This Amendment is closely linked with the Amendment made in Article 136 of the Constitution by P.O. No. 14 of 1985, which deals with vote of no-confidence against the Chief Minister, and by which the process of vote of no-confidence is initiated. The expression ‘in the Assembly’, which has been used in many Articles in Part IV of the Constitution of which Article 112 forms a part, undoubtedly, means on the floor of the House but as there is no express or implied bar on giving the notice of a resolution for a vote of no-confidence during the period when the Assembly is not in session wide and extended meanings are to be given to this expression so as to include in it the Assembly Secretariat which is an adjunct of the Assembly. [p. 228] F

The Explanation is silent about the nature of the notice of a resolution
for a vote of no-confidence, therefore, the notice may be oral or written but if it is oral it must be given on the floor of the House so that the Speaker s in a position to ascertain that it has been given by twenty percentum of the total membership of the Provincial Assembly and if it is written it must contain the names and signatures of twenty percentum of the total membership of the Provincial Assembly and if it is written it must contain the names and signatures of twenty percentum of the total membership of the Provincial Assembly as required under Article 136 of the Constitution and may be given on the floor of the House to the Speaker or in the Assembly Secretariat to the Secretary of the Provincial Assembly. [p. 229] G

The contention has no substance because as pointed out earlier if the
notice within the meanings of the Explanation is in writing it must be given either on the floor of the House to the Speaker or n the Assembly Secretariat to the Secretary of the Provincial Assembly. The meanings of the Assembly Secretariat cannot be extended so as to include the residence of the Secretary and the Additional Secretary of the Provincial Assembly because in that case every employee of the Assembly Secretariat will be well within his right to claim that has his residence forms part of the Assembly Secretariat with the result that the elements opposed to the dissolution of the Assembly for one reason or the other will have an unlimited field to operate with a view to sabotaging dissolution. [p. 230] K

Coming to the alleged oral notice, the same does not seem proved as the
allegation in respect thereof contained in paragraph NO. 3(b) of Writ Petition no. 395 of 1993 was denied by the Speaker in paragraph No. 3(b) of his written statement filed on 10-6-1993. Even otherwise this notice has no value because as mentioned earlier an oral notice of a resolution for a vote of no confidence must be given by twenty percentum of the total membership of the Provincial Assembly on the floor of the House.

The written notice set up by the petitioners is in fact non-existent as
it was neither handed over to the Secretary or the Additional Secretary of the Provincial Assembly nor was left in the Assembly Secretariat. As a matter of fact the case of the petitioners is that in view of the admission of the Additional Secretary of the Provincial Assembly that petitioners Javed Akbar and Hidayatullah Khan had come to his residence and wanted him to receive notice of a resolution for a vote of no-confidence and due to his refusal to receive the same the notice should be deemed to have been given. It is true that the Additional Secretary of the Provincial Assembly in his written statement filed in Written Petition NO. 395 of 1993 on 10-6-1993 has admitted that petitioners Mr. Javed Akbar Khan and Mr. Hidayatullah Khan had come to his residence and wanted him to receive notice of a resolution for a vote of non-confidence against the Chief Minister and he had asked them to deliver it to the Secretary of the Provincial Assembly but the petitioners cannot draw any premium from it because as held earlier notice under the Explanation to clause (1) of Article 112 of the Constitution if written must be given on the floor of the House to the Speaker or to the Secretary of the Provincial Assembly in the Assembly Secretariat. [p. 232] M, N & O.
(c) Constitution of Pakistan (1973) Arts. 112 & 199–

The second objection that the advice in question was not justiciable
under Article 105(2) of the Constitution is equally misconceived because we are required to examine the Constitutional validity of the advice which led to the dissolution of the Provincial Assembly and the ensuing order passed by the Governor and to determine if the same suffer from mala fides and not to dig out whether any and if so what advice was tendered to the Governor by the Chief Minister. The third objection, however, has substance because in his written statement filed in Writ Petition no. 395 of 1993 the Speaker was on the defensive and had made an observation is passing without spelling out the details that the dissolution was mala fide but in the writ petition filed by him he launched on outright offensive against the Chief Minster and the Governor by attributing the dissolution to command performance and collusion. [p. 238] S

Per Malik Muhammad Qayyum, J.(a) Constitution if Pakistan (1973) Art.112–

We are not impressed with this argument for various reasons; firstly that if the Constitution has not placed any bar on the powers of a Chief Minister to advise the dissolution of the Assembly after he has been asked by the Governor to obtain a vote confidence, the issuance of proclamation with a view to achieve same object indirectly will clearly be against the Constitutional intent; secondly if the idea was to denude the Chief Minister of this power, the persons who had resigned from the Cabinet, could if they so minded, have given notice of no-confidence which would take away the power of Chief Minister under Article 128 of the Constitution and lastly, more importantly in none of the written statements filed by the respondents there is any averment that the petitioner intended to dissolve the Assembly and the Proclamation under Article 234 was issued in order to deprive him of that power. This plea being raised in this behalf is based upon conjectures and surmises and does not deserve any serious consideration. We may, however, point out that this Court in Ch.Pervaiz Elahi v. Province of Punjab and another (PLD 1993 Lah. 595) has already held that if the Chief Minister advises the dissolution of Assembly only due to the fact that he had lost confidence of the majority of Members, the Governor is not bound to act upon that advice.[p. 76, 77] Z

Ch. Pervaiz Elahiv. Province ofPunjab and another PLD 1993 )Lah. 595 ref.

Although there may be difference between holding an office and performing functions but to us the Constitutional intent clearly is that it is a Chief Minister who is fully functional who can be asked to obtain a vote of confidence under Article 130(5) of the Constitution.

There is also merit in the contention of the learned counsel for the petitioner that obtaining a vote of confidence under Article 130(5) of the Constitution is one of the functions of the Chief Minister. In ordinary language as well as legal parlance “function denotes owner, duties and requirement of an office”.[p. 79]FF

Malik Ghulam Jilani v. Mr. Justice Muhammad Gul, Judge Supreme Court of Pakistan 1978 SCMR 110 : ref.

It follows that even if the petitioner was holding the office of the Chief Minister yet as he could not function in view of the Proclamation issued by the President under Article 234 of the Constitution directing him to cease to function, he could not have been asked to obtain a vote of confidence.[p. 81]GG
Granted that the Constitution itself does not prescribe any limit regarding time but it is well-accepted principles that where time is not fixed for performance of any obligation or the duty ; it must be performed within reasonable time.[p. 81] HH

Pir Sabir Shah v. Federation of Pakistan and other PLD 1994 738 ref.

We regret our inability to agree. Article 130(5) of the Constitution requires the Chief Minister to obtain vote of confidence. He is, therefore, to be granted reasonable time and opportunity to obtain vote of confidence. Be that as it may, the discretion vesting in the Governor under Article 130(5) of the Constitution of Islamic Republic of Pakistan, 1973, as regard fixation of time must be exercised reasonably, justly and fairly like any other discretion. Clearly, the order which was served on the petitioner at 10-30 p.m. in the night requiring him to take a vote of confidence on the next day i.e. 12-9-1995 at 2-00 p.m. to the petitioner.[p. 82]JJ.

We are not impressed by this contention. Admittedly, under the Constitution, a new Chief Minister can only be elected if me office of Chief Minister had fallen vacant either due to death or resignation or a resolution of no-confidence having been passed against him or on his failure to obtain vote of confidence.[p. 84]QQ

We are not impressed with these contentions. The Constitution in Article 130(5) specifically prescribes that Chief Minister shall be asked to take vote of confidence in a Session especially summon for that purpose. In view of this command of the Constitution there is no room for drawing and inference from certain other proceedings of the Assembly the petitioner had failed to obtain vote of confidence.[p. 84]RR.

In order to ensure that no such practice takes place in the floor test to which the petitioner may be put, we intend to issue certain directions to the Governor of Punjab as the learned Advocate-General has himself stated before us that it is the obligation of the Governor, who issued order under Article 130(5) of the Constitution, to ensure the presence of the Members at the meeting called by him. As already observed, Raja Mehmood Akhtar, learned counsel appearing for the Members of the Provincial Assembly also right sought our intervention to protect the Members from horse-trading, etc. We shall, therefore, direct that the Governor of Punjab should ensure the presence of all Members of the Provincial Assembly at the meeting to be called by him so that the floor test is held fairly and justly. The parties as also the functionaries of the Federal Government and the Government of Punjab shall not cause any harassment to the Members nor place any impediment in their way in exercising their right of vote in a free and fair manner.

As regards the request of Mr.Zafar that if restored to office, the petitioner may be allowed sixty days’ time to obtain vote of confidence as similar period is allowed to a newly elected Chief Minister under Article 130(3) of the Constitution, we are of the view that the situation in the present case is different as the petitioner seeks restoration of office and not fresh election. At best the petitioner is entitled to grant of reasonable time. In the circumstances of the case and keeping in view the fact that the petitioner remained out of office for the last more than one year, we think that a period of ten days would meet the ends of justice.

For the foregoing reasons and in view of the above discussion, this petition is allowed in the following terms:-

(i) That the impugned Proclamation dated 5-9-1995, the order of the Governor under Article 130(5) of the Constitution, passed on 11-9-1995, the removal of the petitioner and the order passed in that behalf as also the election of respondent No.3 as Chief Minister are declared to be without any lawful authority and of no legal effect.

(ii) That as a consequence of the above, the petitioner stands restored to the office of the Chief Minister, Punjab as on 5-9-1995.

(iii) That the Governor, if may so advised, call upon the petitioner to obtain vote of confidence under Article 130(5) of the Constitution by giving him not less then then clear days to obtain vote of confidence.

(iv) That in the said Session the Governor of Punjab in terms of the direction given in para. 96 above, ensure the presence of the Members at the Assembly and also that no impediment is caused in the way of exercise of free right of vote by the Members at such a meeting.

(v) That as undertaken by the petitioner and Mr. S.M. Zafar on his behalf, the petitioner shall not advise the Governor to dissolve the Assembly before obtaining vote of confidence from the Assembly. If this undertaking is violated, this petition shall stand dismissed to the extent of his restoration to the office of Chief Minister of Punjab.

(vi) That if the petitioner fails to obtain vote of confidence, Sardar Muhammad Arif Nakai, respondent No.3 shall stand restored to his office as Chief Minister without any fresh election or other formalities.

(vii) No order a to costs.[p. 91, 92]CCC.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: