P L D 1969 Supreme Court 42 (PLP)

SAJJAD AHMAD, J.‑‑‑This is an appeal by special leave against the judgment and order of a Division Bench of the High Court of East Pakistan, Dacca, whereby the election of the appellants and respondents Nos. 2 and 3, to the East Pakistan Bar Council (hereinafter called the Council) was declared as void. The order was passed on a writ petition under Article 98(2) (b) of the Constitution filed by respondent No. 1, Mr. Siraj‑ul‑Islam. The relief sought was in the nature of the old common law writ of quo warranto, to require the appellants and the aforesaid respondents to show under what authority of law they were holding the public office of the elected members of the Council. The challenge to their election was based on two contentions (1) That the entire election was void as it was convened and conducted by Mr. Muhammad Jan‑e‑Alam, Senior Government Pleader, Dacca, who had illegally assumed jurisdiction as ex‑officio Chairman of the Council, which office he neither held nor was qualified to hold; and (2) That 5 of tire 1U elected members namely appellants Ghulam Hafiz, Salim‑ul‑Haq Milky, Abdul Hag and respon dents Messrs Khundker Mushtaq Ahmad and Abdul Malek were disqualified for election to the Council under Article 5(1) (b) of the Elective Bodies (Disqualification) Order, 1959. (President's Order No. 13 of 1953), as each one of them had been' detained in custody under the provisions of the East Bengal Public Safety Ordinance, 1951. Before examining these contentions and the reasons which have persuaded the learned Judges in the High Court to accept them, it is necessary to state the relevant events. The election to the Council was held on the 30th of November 1966 under the Legal Practitioners and Bar Councils Act of 1965 (Act No. III of 1965) (hereinafter described as the Act). This Act came into force on the 5th of February 1966 and repealed the Legal Practitioners Act of 1879 and the Bar Councils Act of 1926. It provided for the constitution of a Bar Council each for the two Provinces of the East and West Pakistan and the third namely the Pakistan Bar Council for the whole of Pakistan. Under section 5 of the Act each Provincial Bar Council is to consist of 15 members of whom one shall be the Advocate‑General of the Province ex‑officio, 4 to be nominated by the High Court of whom at least one but not more than two shall be Judges of that Court, and 10 shall be elected by the Advocates on the Provincial roll from amongst their number. The Pakistan Bar Council was to be an amalgam of both the Provincial Bar Councils with the addition of two nominees of the Supreme Court as its members and the Attorney‑General as ex‑officio member Chairman. Under section 6 the Advocate‑General of the Province is to be the Chairman ex‑officio of the Provincial Bar Council. Subsection (2) of section 6 makes provision for a Vice‑Chairman of each Council to be elected by the members of the Council from amongst themselves. Sectio710 enumerate the functions of a Council which include under head (g) "to provide for the election of its members". Section 48 confers rule‑making powers on the Pakistan Bar Council for carrying out the purposes of the Act which, utter alia, include "the manner in which election of members of a Provincial Bar Council shall be held". Until such rules were made the power to make rules was to be exercised by the Central Government, which did make the rules in this behalf'. Sub sequently, the Pakistan Bar Council also made rules (here inafter described as Rules) relating only to the election of Provincial Bar Councils without disturbing the rules in respect of other matters as framed by the Central Government. The Rules in Chapter 2 contain provisions for the election of members of a Provincial Bar Council and describe the powers of the Chairman of the Council icy this respect, inter alia, to fix the date and time of election, publication of a programmed of the election specifying the last date by which proposals of names for the election of the members are to be delivered at the office of the Bar Council, the last date for the scrutiny of such proposals, the dates for the filing and hearing of appeals against the rejection of any such proposals. The Chairman has also the power to fix the time and place for the final count of votes, to open the sealed packets containing voting papers and to verify their correctness, Finally he has to certify by his signatures the names of the candidates declared as elected to the Provincial Bar Council and cause the list of the elected members to be published in the official Gazette. According to Annexure D, at page 67 of the paper‑book, an emergent meeting of the Council was held on Monday the 24th of October 1966 with Mr. Muhammad Jan‑e‑Alam described as the Advocate‑General, in the Chair. Amongst the members present was Mr. A. W. Chaudhry, the elected Vice‑Chairman. A resolution was adopted that "the election of 10 members of the Bar Council will be held on Monday the 28th of February 1966 between 10‑30 a.m., and 4.0'1 p.m. It was further resolved that an Election Committee be formed consisting of Mr. Jan‑e‑Alam, Advocate‑General, Chairman, Mr. A. W. Chaudhry, Vice‑Chairman and Mr. Arshad‑uz‑Zaman as members to run the election. In a subsequent meeting held on 4‑11‑1966 the minutes of which are recorded in Annexure G, at page 72, which was again presided over by Mr. Jan‑e‑Alam and in which Mr. A. W. Chaudhry the Vice- Chairman was also present, a programme of the election was drawn up fixing the final date of polling as the 30th of November 1966. The scrutiny of nomination papers was done by Mr. Jan‑e‑Alam and the poll held on 30‑11‑1966. The final result of the election declaring the appellants and the two respondents aforesaid as the successful members was notified in the official Dacca Gazette (Copy Annexure F) on December 20, 1966 by Mr. Muhammad Jan‑e‑Alam as the Chairman and Mr. A. H. Karim Ullah as the Secretary of the Council. It will thus be seen that Mr. Jan‑e‑Alam figures and is described as the Advocate‑General and ex‑officio Chairman of the Council in the proceedings connected with the election. This was because Mr. Israr Hussain, the incumbent of the office of the Advocate‑General of the East Pakistan Province was away to Geneva in connection with the arbitration case before the Rann of Kutchh Tribunal for the period between the 12th of September 1966 to the 18th of July 1967. In between he had returned to Dacca on two occasions and attended to his duties as Advocate‑General from 12‑1‑1967 to 21‑1‑1967 and again from 5‑4‑1967 to 20‑4‑1967. On 10‑9‑1966 a note was recorded by the legal Remembrancer to the Government of East Pakistan that "the Advocate‑General, East Pakistan, will be away to Geneva from 12th September 1966. Senior Government Pleader, High Court, will remain in charge till further orders". This was followed by a formal order by the Government of East Pakistan on the 27th of September 1966 to the following effect "I am directed to say that the Governor of East Pakistan has been pleased to order that Mr. Muhammad Jan‑e‑Alam, Senior Government Pleader, High Court, Dacca, will remain in charge of the office of the Advocate‑General, East Pakistan in addition to his own duties during the absence of Mr. Israr Hussain, Advocate‑General, East Pakistan, in connection with his duty with the Rann of Kutchh Tribunal at Geneva." It was in the context of this situation that the respondent raised the objection in the High Court that Mr. Jan‑e‑Alam had merely been put in charge of the office of the Advocate- General, the real incumbent of which was Mr. Israr Hussain. Mr. Jan‑e‑Alam not having been appointed as the Advocate -General or even as acting or officiating Advocate‑General, could not under the law become the ex‑officio Chairman of the Council to conduct the election which is therefore illegal for that reason. The learned Judges of the High Court have upheld this contention and have further found that Mr. Muhammad Jan‑e‑Alam was disqualified to be appointed as the Advocate General as according to the records of the Court he was above 60 years of age. Reference in this connection is made to Article 85 (1) of the Constitution which reads: "The Governor of the Province shall appoint a person who is qualified to be appointed as a Judge of the High Court to be Advocate‑General for the Province." Under Article 94 of the Constitution the retiring age o a High Court Judge is fixed at 60 years after which he ceases to hold office. A person above 60 years of age cannot be appointed a Judge of the High Court nor by reference to that disqualification as the Advocate‑General of a Province. Constitutionally, therefore, the appointment of Mr. Muhammad Jan‑e‑Alam was irregular and it does not seem to be the appellant's case that he was ever so appointed. It was conceded by Mr. Brohi, the learned counsel for the appellants that there is no provision in the Constitution for the acting or officiating appointment of an Advocate‑General like it exists in the case of other Constitutional appointments e. g. acting Speaker, acting Chief Justice etc. His argument before the High Court which he has repeated before us is that the Governor who is the appointing authority for the, advocate‑General had entrusted to Mr. Jan‑e‑Alam the performance of all the duties and functions of the Advocate‑General in the absence of Mr. Israr Hussain and he was therefore the de facto although not the dejure Advocate‑General, and consequently the de facto Chair man of the East Pakistan Bar Council. The question that really calls for determination in this case is; has the parti cipation of Mr. Jan‑e‑Alam in the election, allowing that he was not the legally constituted ex‑officio Chairman of the Council, in any way affected the result of the election to the Council? It may be stated here that no objection was taken by any one at any stage during the election to the validity of the assignment of Mr. Jan‑e‑Alam as the Advocate‑General or to the performance by him of the functions as the ex‑officio Chairman of B the Council. Nor is it shown that the election was in any manner prejudiced because Mr. Jan‑e‑Alam had acted as the ex‑officio Chairman of the Council in the conduct of the election. The minutes of the meetings of the Council referred to above make it clear that the election was convened under a resolution of the Bar Council itself and not under the authority of Mr. Jan‑e‑Alam. No doubt "the rules framed delegated this function to the Chairman of the Council but it cannot be said that the Bar Council became "denuded of the powers after the delegation". It is well settled that a delegate can assume the exercise of delegated powers unless in the meantime the delegates has already exercised the powers under his delegated authority. The unauthorized presence of Mr. Jan‑e‑Alam as the Chairman of the Council in the meetings held in connection with the election did not affect the validity of the decisions taken in the meetings in view of the protective provisions of section 20 of the Act which reads: "No act done by a Bar Council or any Tribunal or committee thereof shall be called in question on the ground merely of the existence of any vacancy in or any defect in the constitution of such council, tribunal or the committee." At the worst for the appellants it can be said that the meetings of the Council and the Election Committee were conducted in the absence of Mr. Israr Hussain and under the President-ship of a person who was not a valid Chairman. This would merely create a defect in the constitution of the Council or the Committee that took the decisions with regard to the election but this defect is in consequential in view of the coverage provided by this section. The objection to Mr. Jan‑e‑Alam's unauthorized participation in the election proceedings as Chairman ends in futility by yet another reason. The elected Vice‑Chairman, Mr. A. W. Chaudhry was present at almost all the stages of the election proceedings and had concurred in the decisions taken therein. Even if Mr. Jan‑e -Alam's presence in the election meetings was that of an intruder it can conveniently be ruled out. Under rule 2 of Chapter 5 of the Rules in the absence of the Chairman, Mr. A. W. Chaudhry, the Vice‑Chairman would be deemed to have assumed responsibility and the powers of the Chairman. The proceedings of the Council and of the Election Committee, thus had the approval of the Vice‑Chairman and were valid. The only prejudicial action attributed to Mr. Jan‑e‑Alam and which has been seriously pressed is that he had accepted the nomination papers of certain persons who were disqualified to be the candidates for the election and whose participation in the election has rendered the entire election as void. This objection is relevant to the second contention of the respondent raised in the writ petition as already formulated to the beginning of this judgment. But before entering on its dis cussion it must be stated in fairness to Mr. Jan‑e‑Alam that this objection as to the alleged disqualification of the appellants and the two respondents afore‑mentioned was not taken before him at the time of the scrutiny of the nomination papers and he had thus no occasion to pronounce his decision thereon. The learned Judges of the High Court have held that out of the 5 allegedly disqualified persons no material was supplied by the respondent against Salim‑ul‑Haq Milky, but it was proved against the others that they were detained sometime or the other under the East Bengal Public Safety Ordinance and, therefore, stood disqualified under section 5 of the Order. They have further held that the result of the election might have been different, if these disqualified candidates had not been in the run. This conclusion requires an examination of the scope and purview of the Elective Bodies (Disqualification) Order of 1959 (President's Order No. 13 of 1959‑hereinafter des cribed as the. Order) under which the High Court has upheld the disqualification of these persons to be members of the Council. The Order was promulgated on the 7th of August 1959. Under subsection (3) of section 1, it was to remain in force until the 31st day of December 1960, whereupon it stood repealed. Section 5 of the Order provided for its prospective operation in the following terms: "(a) Notwithstanding anything contained in this Order or any other law a person shall stand disqualified until the 31st day of December 1966 from being a member or a candidate for the membership of any elective body. (b) If an order under section 3 of the Security of Pakistan Act, 1952 or a similar order under any other law relating to the prevention of acts prejudicial to the defence or the external affairs or the security of Pakistan or any other part thereof or to the maintenance of supplies and services whether to the community or the maintenance of public order has ever been made against him." Elective body is defined in section 2 (b) as follows: "Elective body means any assembly, board, committee or similar other body by whatever name called established or to be established by or under any law of which the consti tuent members are wholly and partly chosen by means of election and in the case of the Legislature a municipal corporation, a municipal committee, a cantonment board, a district board, a notified area committee, a town area committee, a sanitary or any other local body or electoral college formed for election to the Legislature." It is clear enough that this Order was of a limited duration and provided for its automatic repeal on the 31st day o December 1960. The disqualification of certain persons who came within the mischief of section 5 was to last until the 31st day of December 1966, so that on the expiry of that date they were to shed their disqualification and became eligible for election to any elective body which may have been established before the Order or during the lifetime of the Order or thereafter. The argument of Mr. Khundkar that qua the candidates who suffered from a disqualification under the Order the words "to be established" in the definition of the elective body were intended to have reference to all elective bodies that were established or may be established regardless of the point of time suffers from an obvious fallacy. The disqualification under the Order attached to certain persons, for election to elective bodies and when that dis qualification itself was intended to disappear on a certain date, there is no point in the argument that the disqualification was to persist in respect of the bodies that may be established even after the cessation of the disqualification. Plainly enough, the Council that was established on the expiry of the life of the old Bar Council on 1‑1‑1967 is immune from the mischief of the Order. The appellants and the two respondents who suffered from a temporary disqualification under the Order were free from its taint and could validly have sought election to a body which was to come into existence after that date when their disability was over. Since in my view the Bar Council in not an elective body even generally as defined in section 2 (b of the Order having been established after the operative period of the Order came to an end, it is not necessary to deal with the other argument advanced by Mr. Brohi with great force that in construing the Penal Provision of section 5 of the Order, a restrictive definition of the elective body should be adopted to confine it only to bodies posses sing political and semi‑political franchise such as are illustrated in the definition clause itself and a Bar Council evident is not one of them. Nor is it necessary to decide the other argument of Mr. Brohi challenging the vires of section of the order on the ground of its conflict with Funda mental Right No. 4 which is unsuspended as it seeks to provided a greater and a different penalty from the one originally prescribed by the law under which detention of the persons concerned had taken place. As the conclusions reached by me go contrary to those of the learned Judges of the High Court on both the con tentions on which the writ petition was grounded it is not neces sary to say more except to accept this appeal. However, there is another matter which was strenuously argued at the Bar and which may be profitably noticed. Mr. Brohi for the appel lants contended that the respondent Siraj‑ul‑Islam had no locus standi to file the writ and at any rate his bona fides as a relator were questionable and a writ of quo warranto should not have been issued at his instance. It is pointed out that his name was not entered in the electoral roll of the Bar Council although he alleged that it existed at SeriA No.

282. It is also submitted that Mr. Siraj‑ul‑Islam was acting merely as a tool in the hands of M/s. M. H. Khundker, Shafiq‑ur‑Rehman and A. N. Chaudhry, all of whom are his Advocates, who were defeated at the election to the Council Some of the defeated candidates had filed election petitions under rule 15 of the Pakistan Bar Council Rules which are still pending. It is further submitted that the petition suffered from laches having been filed on the 12th of September 1967 almost 10 months after the announcement of the result of election. Under Article 98(2) (b) "any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority". On that account it cannot be doubted that Mr. Siraj‑ul‑Islam did have, the locus standi to file the petition. But the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue, as a matter of course on sheer technicalities on a doctrinaire approach. In the present case, considering all the circumstances I cannot escape the feeling that Mr. Siraj‑ul‑Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition not so much for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations. The delay that has occurred in the filing of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief. The election of the appellants and the other members of the Council was duly notified on the 20th of December 1966. They have been in office discharging their duties since the 1st of January 1967. The writ petition in the High Court was filed 9 months later on the 12th of September 1967. The alleged disqualification of the appellants and the two respondents which formed the main basis of the writ, was of an artificial and ephemeral character, which vanished on the date when those members took charge of their functions. They did not suffer from an inherent disqualification of any sort. In the circumstances I feel very strongly that it was not at all fit case for the issuance of a writ of quo warranto by the High Court. Mr. Khundker, the learned counsel for the respondents has also contended that since the High Court has exercised its discretion in favour of the respondents this Court should stay its hands and not interfere with that discretion. This Court does not and will not interfere where the High Court has exercised its discretion on sound judicial principles, but it will certainly intervene where ff it finds that the discretion has been exercised in a manner which diverts the law into wrong channels by the formation of conclusions which are unsustainable in law. In the result I would accept this appeal and recall the writ issued by the High Court. The respondents will beat the costs of the appellants in this case. K. B. A. Appeal accepted.