1990 PLP 389 (MLD)

(i) That the delegation of power under section 64-A of the Act is permissible. (ii) That since the Rules of Business have been framed by the Governor in pursuance of the power contained in Article 139(3) of the Constitution the same have become part of the Constitution and will have that effect. (iii) That section 64-A does not specify any Government functionary but the Provincial Government has been authorised to exercise the power contained therein and hence as per Business Rules any of the officers can act under the aforesaid provisions. (iv) That power under section 64-A is not exclusively judicial or quasi judicial power but it is also executive supervisory power and, therefore, the same can be assigned to any of the Government functionary.

5. Mr. M. A. M. Namazie, learned counsel, who is appearing for respondents Nos.5 and 6, has contended as under:- (i) That respondent No.7 has committed fraud inasmuch as it obtained allotment of the plot by committing forgery and, therefore, this Court will not grant discretionary relief of writ petition. (ii) That under the impugned order which is of administrative nature, a preliminary enquiry has been ordered and, therefore, no notice is required to be given. (iii) That respondent No.4 could issue administrative order after coming to know about the alleged fraud for holding a preliminary enquiry. (iv) That even otherwise, the enquiry has been ordered by respondent No.2 who is authorised under section 43 of the Act and, therefore, no exception can be taken to the same, and (v) That the power contained under section 64-A of the Act, is also administrative and supervisory power and not exclusively judicial or quasi-judicial.

6. Before dealing with the contentions of the learned counsel for the parties, it may be appropriate to reproduce section 64-A of the Act, which reads as follows:- "64-A. POWER OF PROVINCIAL GOVERNMENT AND THE REGISTRAR TO CALL FOR PROCEEDINGS OF SUBORDINATE OFFICERS AND TO PASS ORDERS THEREON. The Provincial Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. If in any case, it shall appear to the Provincial Government or the Registrar that any decision or order or proceedings so called for should be modified, annulled or reversed the Provincial Government or the Registrar, as the case may be, may pass such order thereon as to, it or he may seem fit." A plain reading of the above section indicates that the Provincial Government and the Registrar have been empowered to call for and examine the record of any inquiry of the proceedings or any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. It also provides that if in any case, it appears to the Provincial Government or the Registrar that any decision or order or proceedings so called for should be modified, annulled or reversed the Provincial Government or the Registrar, as the case may be, may pass such order thereon as to it or he may seem fit. We may point out that in the above-quoted section 64-A, it has not been stated that who can exercise power under the above section on behalf of the Provincial Government. The questions, therefore, which require consideration are, who can on behalf of the Provincial Government exercise power under the above section 64-A of the Act and, whether an Adviser to the Chief Minister can exercise the power under the above section. 1n this regard, we may point out that under Article 93 of the Constitution, it has been provided that the President may, on the advice of the Prime Minister, appoint not more than five Advisers, on such terms and conditions as he may determine. It also provides that the provisions of Article 57 shall apply to an Advisor. By virtue of the latter Article the Advisor is entitled to speak and otherwise take part in the proceedings of either house, or in a joint sitting of the House or in any committee but he is nest entitled to vote. There is no corresponding provision in Chapter III of the Constitution which relates to the Provincial Government. However, Article 129 provides that the executive authority of the Province shall vest in the Governor and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution. It may also be pointed out that clause (1) of Article 130 lays down that there shall be 'a cabinet of Ministers, with the Chief Minister at its head, to aid and advise the Governor in the exercise of his functions. Whereas, clause (1) of Article 132 provides that subject to clauses (7) and (8) of Article 130, the Governor shall appoint Provincial Ministers from amongst members of the Provincial Assembly on the advice of the Chief Minister. It may also be stated that Article 139 lays down that all executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor. It also provides that the Governor shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the legality of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the Governor. It also provides that the Governor shall also make rules for the allocation and transaction of the business of the Provincial Government. We may observe that in pursuance of above power contained in clause (3) of Article 139, the Governor made the Sindh Government Rules of Business, 1986, (hereinafter referred to as the Business Rules) notified under Notification No. SOR-I (S & GAD) 3/2-85(Pt III) dated 13-8-1988. The above business Rules have been inter alia modified by Notification No. SOR-I(SGA&WD) 3/7-89 dated 27-6-1989. It may be pertinent to reproduce the above amendments made in Rules 6, 7 and Schedule VI, which read as follows:- "(1) For rule 6, the following shall be substituted:- "6(i) The Governor may, in accordance with the advice of the Chief Minister, appoint an Advisor to the Chief Minister, in respect of a Department;" (ii) The Chief Minister may delegate all or any of the powers of Minister to such Adviser". (2) In rule 7- (a) In sub-rule (ii), for the words "the Minister or Secretary", the words "a Minister or an Adviser or the Secretary" shall be inserted; (b) in sub-rule (iii), the words "in respect of any subject or matter allocated to that Department in the charge of the Chief Minister" shall be deleted. (3) In Schedule VI, in entry against serial No.12, between the words "a Minister" and the word "or" the words "or Adviser" shall be inserted."

7. It may be noticed that under the above-amended Rule 6, the Governor has been empowered to appoint an Adviser in accordance with advice of the Chief Minister in respect of a Department. It has also empowered the Chief Minister to delegate all or any of the powers of Minister to such Adviser. Whereas, in sub-rule (ii) of rule 7, with the words `Minister' and the `Secretary' the word `Adviser' has been added. Whereat, from sub-rule (iii) certain portion has been deleted. Similarly in Schedule VI against serial No.12, the words "or Adviser" have been inserted after the words "a Minister". The effect of the above amendment seems to be to provide legal cover to the appointments of the Advisers and to empower them to discharge functions of the departments which may be assigned to them.

8. After having dealt with the relevant provisions of law and the rules, we may revert to the submissions of Mr. K.M. Nadeem, learned Assistant Advocate General, Sindh. As regards his first submission that the delegation of power under section 64-A of the Act is permissible, it may be observed that in furtherance of his above submission, he has referred to sections 5 and 6(2) of the West Pakistan Civil Courts Ordinance, 1962 and section 17(4) of the Cr.P.C. It may be observed that under section 5 of the former Ordinance, the Government has been empowered in consultation with the High Court to appoint as many persons as it thinks necessary to be District Judges and post a District Judge to each district. Whereas, subsection (2) of section 6 of the said Ordinance contemplates that an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge. It may further be stated that subsection (4) of section 17 of the Cr.P.C. empowers a Sessions Judge when he himself is unavoidably absent or incapable of acting to make provision for the disposal of any urgent application by any Additional or Assistant Sessions Judge or, in their absence by the District Magistrate. In our view, the above provisions have no direct bearing on the point in issue. There cannot be any cavil to the proposition that a statute may authorise that the functionary named may delegate or assign its work to any other functionary. In the instant case, section 64-A does not specify an incumbent of an office who will have to exercise the powers of the Provincial Government. The latter point will be dealt with more in detail hereinbelow.

9. Adverting to Mr. K.M. Nadeem's submission that since the Rules of Business have been framed by the Governor in pursuance of the power contained in Article 139(3) of the Constitution, the same have become part of the Constitution and will have that effect, it may be observed that in furtherance of his above submission, he has referred to the case of (1) Khetsidas Girdharilal v. Pratapmull Rameswar and others, reported in A I R (33) 1946 Calcutta 197, and the case of (2) T.B. Ibrahim, Proprietor, Bus Stand, Tanjore, v. the Regional Transport Authority Tanjore, reported in A I R 1953 Supreme Court

79. In the former case a Division Bench of the Calcutta High Court while construing Bengal Cotton Cloth and Yarn Control Order and section 299 of the Government of India Act, 1935, inter alia observed that the power to make law can be exercised by enacting such law in a statute or by the statute empowering the making of rules with respect to specified matters, which matters must be within the law making power and that when rules are framed under the Authority conferred by a statute they are deemed to be part of it, and have the same force and effect as if their provisions were included, in the statute. Whereas, in the latter case, the Indian Supreme Court while construing Motor Vehicles Act, 1939 and Madras Vehicles Rules, 1940, held that bye-law must not be repugnant to the statute or the general law, and that bye-laws and rules made under a rule-making power conferred by a statute do not stand on the same footing, as such rules are part and parcel of the statute itself. In the instant case, as observed hereinabove, the Governor has framed the Business Rules under clause (3) of Article 139 of the Constitution for the allocation and transaction of business of the Provincial Government. In our view, the ratio of the above two cases of Indian jurisdiction has no application to the instant case, as the rules framed by a Governor under above clause (3) of Article 139 cannot be treated as a part of the Constitution. A Constitution cannot be equated with a statute on a particular subject. The former is a sacred document, which provides the basic structures for the working of the various organs/functionaries of a State and the fundamental rights for the citizens. Nothing can be added or be read into a Constitution. Its amendment is generally made more difficult by providing a special procedure/method, whereas, in a statute in certain circumstances words can be read into. It-can be amended or `repealed by a simple majority of the members of the Parliament. We may further observe that a Constitutional provision cannot be modified as to the performance of certain Constitutional functions by framing a Business Rule under above clause (3) of Article 139 by providing delegation of the function or by naming some other office holder or body than the officer or the body named in the Constitution in the absence of express authorization of delegation of power in the relevant Article. In other words, if an Article of the Constitution empowers a particular Government functionary to discharge certain functions, it cannot authorise someone else to discharge the said function by framing a Business Rule. The well-established principle of interpretation of statutes that a rule cannot be repugnant to the provisions of the statute under which it is framed is more rigorously applicable to the rules framed under a Constitution.

10. Reverting to Mr. K.M. Nadeem's submission that section 64-A does not specify any Government functionary but the Provincial Government has been authorised to exercise the power contained therein and hence as per Business Rules any of the Officers can act under the aforesaid provisions, it may be observed that the above contention seems to be correct. We have already pointed out hereinabove that section 64-A empowers the Provincial Government and the Registrar. It has not been provided, who will be exercising the powers of the Provincial Government under the above section 64-A. In the absence of any such specification, the powers are to be exercised on behalf of the Provincial Government in the manner provided in the Business Rules.

11. As regards Mr. K.M. Nadeem's contention that the power under section 64-A is not exclusively judicial or quasi-judicial power but it is also executive supervisory power and, therefore, the same can be assigned to any of the Government functionaries, it may be observed that to some extent Mr. Nadeem's above submission is correct, as under section 64-A, it has not been provided that the power contained therein can only be pressed into service in relation to judicial or quasi-judicial proceedings but the wordings are such which will encompass both judicial or quasi-judicial and executive proceedings within the ambit of the Act.

12. Before taking up the contention of Mr. Z.U. Ahmed, we may also dilate upon the contentions of Mr. M.A.M. Namazie, learned counsel appearing for respondents Nos.5 and 6.

13. Adverting to Mr. Namazie's first submission that respondent No.7 has committed fraud inasmuch as it obtained allotment of the plot by committing forgery and, therefore this Court will not grant discretionary relief of writ petition, it may be observed that the above contention is based on assumption that factually fraud has been committed by respondent No.7. In Constitutional petition we cannot examine disputed questions of facts like the alleged commission of fraud and, therefore, the above contention is untenable.

14. As regards his second submission that under the impugned order which is of administrative nature, a preliminary enquiry has been ordered and, therefore, no notice is required to be given, it may be observed that in furtherance of his above submission, he has referred to the case of Muzaffar Ali Shah and others v. Registrar Co-operative Societies, Karachi and another reported in P L D 1968 Karachi 422, in which a Division Bench of the erstwhile High Court of West Pakistan at Karachi, while construing Rule 48 of the Co operative Societies Rules, 1927, observed that the above rule does not provide for a personal hearing after a show-cause notice, nor for opportunity to produce evidence and, therefore, the Registrar was not under any obligation to allow any such hearing or evidence after a show-cause notice. The above case has no application to the instant case inasmuch as the question in issue is as to whether at the relevant time respondent No.4, i.e., the Adviser could direct respondent No.2, i.e. the Registrar Co-operative Societies to initiate an enquiry.

15. Reverting to Mr. Namazie's contention that respondent No.4 could issue administrative order after coming to know about the alleged fraud for holding a preliminary enquiry, it may again be observed that unless respondent No.4 was authorised at the relevant time to act under section 64-A, the impugned order dated 18-2-1989 could not have been passed by him in a revision petition pending under the above section on judicial side.

16. As regards Mr. Namazie's contention that even otherwise, the enquiry has been ordered by Respondent No.2 who is authorised under section 43 of the Act, and therefore, no exception can be taken to the same, it may be stated that there is no doubt that under section 43 of the Act, respondent No.2 is empowered to initiate enquiry of the nature in issue but since the above enquiry has been initiated in pursuance of the order passed by respondent No.4, the initiation of the above enquiry cannot be sustained unless we hold that respondent No.4 at the relevant time was empowered under section 64-A of the Act to act on behalf of the Provincial Government. It is an admitted position that respondent No.2 has not applied his mind to the facts of the case independently for the purpose of issuing of order dated 8-3-1989 for holding the enquiry against the four societies but in fact carried out the order of respondent No.4.

17. This leads us to the last submission of Mr. M.A.M. Namazie that the power contained under section 64-A of the Act, is also administrative and supervisory power and not exclusively judicial or quasi-judicial, it may be observed that we have already dealt with the above contention hereinabove in paragraph 11.

18. We may now revert to the contention of Mr. Z.U. Ahmed, learned counsel for the petitioner that respondent No.4 is not an officer subordinate to the Governor under Article 129 of the Constitution to exercise any revisional power under section 64-A of the Act or a Minister under Article 130 of the Constitution and, therefore, the aforesaid order dated 18-2-1989, passed by respondent No.4, is without jurisdiction and in consequence thereof the order passed by Respondent No.2 on 8-3-1989 in pursuance of the aforesaid order is also illegal, it may be observed that in support of his above submission, he has relied upon the case of Messrs Habib Arkady Limited v. Government of Balochistan through Collector District Lasbella, Balochistan and 5 others, reported in P L D 1987 Quetta 103, in which a Division Bench of the Balochistan High Court to which one of us (Ajmal Mian, CJ.) is a party, observed as follows:- "We are inclined to hold that the special tribunals, public bodies or Executive authorities exercising functions similar to the judicial or quasi judicial cannot delegate their power to decide the matter to any third body or person but it can entrust to a person or group of persons with the authority to investigate and to submit its recommendations. In the instant case, the Martial Law Administrator had not delegated the power to decide the question whether inter alia, the sale in question should be cancelled or not to the Committee though the latter had made recommendation to that effect, but the decision was taken as pointed out hereinabove, by the Martial Law Administrator:" The learned counsel for the petitioner has also relied upon the case of Muhammad Azim Malik v. A.C. & S.D.M. Preedy (South) Karachi and others, reported in P L D 1989 S C

266. In the above case, the Supreme Court of Pakistan while construing Section 7 of the Extradition Act (XXI of 1972) held that the Assistant Commissioner/SDM was not competent to hold enquiry under the above section as the District Magistrate was nominated by the Federal Government for holding enquiry. He has also referred to the case of The Great Northern Railways Company v. The Eastern Counties Railways Company ((1851) 9 Hare 306 relevant at 311], in which an English Court held that the two Railways Companies had no authority of the legislature, whereby one company could delegate to another all the powers, which had been conferred upon it by the Parliament and that it was an unlawful attempt to effect that which Parliament alone could authorise. He has also referred to para 32 from the Halsbury's Laws of England (Fourth Edition) Volume I, which reads as follows:- "32-SUB-DELEGATION OF POWERS.--In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub -delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind. Even where a power to make decisions is exercisable only by the delegate itself, however, considerations of practical convenience may justify the entrustment to a committee or officers of powers to conduct an investigation and to make recommendations as to the decision to be taken. A civil servant is his Minister's alter ego, and a decision taken by a civil servant in the name of the Minister or the Department is not open to objection as a form of unauthorised sub-delegation, provided at least that the servant has actual or implied authority so to act and the matter is not so important as to demand the Minister's personal attention. The powers of other public bodies are, in general, exercisable by their servants or agents. Local authority functions may under the Local Government Act 1972 be delegated either to officers or to committees or sub-committees of the authority. In general, a delegation of power does not imply parting with authority. The delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate. It would appear that an invalid act of the delegate encroaching on individual rights cannot be validated with retrospective effect by ratification." Reference may also be made to the case of Khawajdin v. Rationing Controller Food, Faisalabad and 2 others, reported in P L D 1980 Lahore 15, in which a learned Single Judge of the Lahore High Court while construing section 6(3) of the West Pakistan Foodstuffs Distribution Order, 1907, and Rule 3 of the Rules of Business (Punjab), 1974, held that the word " Government" in the context of section 6 subsection (3) of the aforesaid Order would mean Government acting through the Secretary of the Department it may further be observed that while dealing with the question of delegation of power to hear a revision provided under the relevant law read with the rules, the learned Single Judge made following observations:- "

16. In the light of above discussion it is clear that the responsibilities of the Secretary while hearing a revision petition under section 6, subsection (3) of the West Pakistan Foodstuffs Distribution Order, 1967 are responsibilities of a judicial nature. They are not covered by the Rules of Business. Rules of Business are applicable to cases of administrative or ministerial nature. These rules relate essentially to the administration of the Secretariat. They refer to making of decisions issue of orders or the execution of acts in which the element of judgment or discretion is either absent or relatively very small. 17. 1 accordingly hold that the Secretary to Government of Punjab, Food Department, cannot delegate or assign his power to hear and adjudicate on the revision filed under section 6, subsection(3) of the West Pakistan Foodstuffs Distribution Order, 1967 to the Deputy Secretary (General) and that the said delegation is without lawful authority and of no legal effect." '

19. We are inclined to hold that if a judicial power or even executive power is conferred by the relevant statute upon a particular named Government functionary, the same cannot be delegated in the absence of express words or necessary implication, as the maxim " delegatus non potest delegare", a statutory power must be exercised only by the body or officer in whom it has been vested, will be applicable. In the instant case, as we have pointed out hereinabove more than once that section 64-A does not specify the body or officer in whom the power has been confided, the question of delegation of power is not involved. The power on behalf of the Government is to be exercised in terms of the Constitution read with the Business Rules framed there-under. Prior to 27-6-1989 when Rules 6 and 7 of the Business Rules were amended an Adviser to a Chief Minister did not figure either in the Constitution or in the Business Rules. In this view of the matter, respondent No.4 could not have exercised the power under section 64-A of the Act on behalf of the Chief Minister who was the in-charge Minister of the relevant departm8nt and hence the impugned order dated 18-2-1989 passed by respondent No.4 and the order dated 8-3-1989 passed by respondent No.2 in pursuance of the above order of 18th February, 1989, are without jurisdiction. We may also observe that the Chief Minister can assign the work to an Adviser after the above amendment of 27-6-1989 in respect of a department to which the Adviser is attached and not in respect of a department to which he is 'not attached'. In the instant case respondent No.4 was attached to the Department of Planning and Development and not to the Co-operation Department which comprises of Co-operative Societies and Banks, service matter except those entrusted to Services and General Administration and Wild Life Department. as per Schedule VI to the Business Rules.

20. We would, therefore, allow the above petition and declare the impugned orders as being without lawful authority and of no legal effect. However, it will be open to the respondents to take fresh action 'in accordance with law. The petition stands disposed of in the above terms with no order as to costs. M.B.A./K-178/K Petition allowed.