P L D 2019 Lahore 174 (PLP)

SHAHID JAMIL KHAN, J.

Petitioner, being elected Vice-President of Cantonment Board Gujranwala ("the Board"), has assailed special agenda for No Confidence Motion ("NCM"), against the petitioner, carried through impugned letter dated 08.09.2018 for tabling it in an Ordinary Board Meeting.

2. Learned counsel for the petitioner read subsection (3) of Section 21 of The Cantonments Act, 1924 ("Act of 1924") to submit that a special meeting was required to be convened for the purpose of NCM against an elected Vice-President. By referring to Notice dated 06.09.2018 (Annex-B), he supported the fact that the meeting, in which NCM was placed, was an Ordinary Board Meeting, already convened for 08.09.2018. Rana Amir Iftikhar, Advocate, representing the respondent Board, did not controvert the fact that the NCM was placed in an already scheduled Ordinary Board Meeting, without providing sufficient time to convene a Special Meeting for this purpose. He apprised; though the NCM was carried but the petitioner was not de-notified in view of interim relief granted.

3. On Court's query, learned counsel for the petitioner submitted that the Federal Government, under Section 280, is required to frame rules to carrying out the purpose of the Act of 1924 and every Cantonment Board has to frame by-laws under Section 282 of this Act. Such rules, dealing with the meetings of the Boards or by-laws, are not found to have been framed. He apprised that under some Statutes like Cooperative Societies Act, 1925 and Companies Ordinance, 1984 (substituted by Companies Act, 2017), Federal Government framed skeleton by-laws (Model By-laws) which are to be adopted by the Statutory Entities created under these Statutes, with necessary amendments permissible under these Statutes. Responding to this quarry; Rana Amir Iftikhar, Advocate for the Board submits that there are some by-laws framed, however, by-laws relating to the meetings were not framed, which have been prepared and being sent to Federal Government for approval.

4. Heard. Record perused.

5. In presence of the admitted position that the NCM was placed before an already convened Board Meeting, the following referred provision from Section 21 of the Act of 1924 is examined:- "

21. Term of office of vice-president. (1) (2) . (3) A vice-president may be removed from his office by the Central Government at any time during the term of his office if a no-confidence motion is passed against him by a two-third majority of the elected members of the Board at a meeting specially convened for this purpose, and on such removal the office shall become vacant." [emphasis supplied] The spirit of 'specially convened meeting' is apparent from the words of law, which envisages sufficient notice to the parties for the purposes of resolution of NCM. Such procedure has to be regulated, either by framing rules under the Section 280 or by-laws under the Section 282, absence of which gives room to arbitrary exercise of power or desecration, like has happened in this case.

6. The proposition, whether any provision of law is self-executing, not requiring subordinate legislation to carry out its purpose, was examined by this Court in Nestle Pakistan Limited and others v. The Federal Board of Revenue and others (2017 PTD 686). After discussing Apex Court's judgment in Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595) and a passage from 10th, Edn. of NS Bindra's Interpretation of Statutes, it was held:- "7 It is recapitulated that a provision is self-executing if rights granted or duties imposed are enforceable in absence of any supplementary legislation; in other words if manifest intention is found in language of the provision that power conferred should go into immediate effect and no ancillary legislation is necessary, then the provision is self-executing. The provision is not self-executing if it indicates merely a line of policy or principles, without giving means by which such policy or principles are to be carried into effect, or it is directed in the provision for framing of Rules through delegated powers to enforce the rights, duties or powers given therein." Structuring of discretion, even under a self-executing provision was held imperative keeping in view the law laid down by August Supreme Court of Pakistan. Relevant excerpt is also reproduced:- "

9. Nevertheless, the discretionary powers, even under a self-executing provision, need to be structured to ensure just, fair and transparent exercise of discretionary powers, because it has so been ordained by Apex Court of this Country in Amanullah Case (supra), Government of NWFP through Secretary and 3 others v. Majee Flour Mills (Private) Limited (1997 SCMR 1804), and Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, lslamabad and others (2015 SCMR 630), which in view of Article 189 of the Constitution is declared law of the land...." The guidelines as enshrined in Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance Islamabad (PLD 1990 SC 1092) were reiterated, to direct framing of rules to ensure transparency and to achieve high quality of justice, in following words:- "Doctrine of structuring discretion was explained in Amanullah Khan's case, in following words:-- "structuring discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice." Seven instruments were highlighted, which are useful to structure discretionary power i.e. "open plans, open policy statement, open rules, open findings, open reasons, open precedents and fair in formal procedure". Framing of Rules to regulate the discretionary power was emphasized. The expression of Hon'ble Court is reproduced:-- "the wide-worded conformant of discretionary powers of reservations of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statement or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times." [emphasis supplied] The law and direction in the Nestle Pakistan's Case (supra) for structuring of discretion through rule making, ibid, has been upheld by the August Court through a recent judgment in Commissioner of Inland Revenue, Sialkot and others v. Messrs Allah Din Steel and Rolling Mills and others (2018 SCMR 1328).

7. As the NCM against the petitioner through impugned letter dated 08.09.2018 was against the spirit of Section 21(3) of the Act of 1924, therefore, is declared without lawful authority, rendering the consequent resolution as ineffective. Taking notice, during proceedings, of the fact that necessary rules for regulating the business of Cantonment Boards are not framed, the Federal Government, through Secretary Defence, is directed to ensure framing of Model By-Laws for running the affairs and business of the Cantonment Boards, to bring certainty and uniformity in procedure and proceedings. The petition is allowed. MWA/M-5/L Petition allowed.