P L D 1966 Dacca 176 (PLP)

MURSHED, C. J.‑This appeal raises a very simple point. Plaintiff was a member of the Provincial Legislature of East Pakistan prior to October 7, 1958. Under Article 193 of the Consti tution of 1956, the' President of Pakistan, by a proclamation, assumed the functions of the Government of the Province of East Pakistan and suspended the operation of various parts of the Con stitution which included those relating to the function of the Provincial Legislature. The Provincial Legislature was not dis solved. It can, at best, be said that the Provincial Legislature itself stood suspended. The said Legislature was dissolved on October 7, 1958, by a Revolution which is a matter of recent history. Under para. 9 of the Fourth Schedule to the said Constitution, a member of a Provincial Assembly was entitled to receive such remuneration and other privileges which were admissible, imme diately before the day, to persons holding office when th6 said Constitution came into force. Para. 9 thereof reads thus: "

9. Until a Provincial Legislature by law otherwise provided, the remuneration and other privileges of persons holding offices mentioned in column 1 of the table below shall be the same as were admissible, immediately before the Constitution Day, to persons holding offices mentioned in the corresponding entries in column 2 of that table. Column 1 Column 2 "Member of a Provincial Assembly. Member of the Legislative Assembly of the corres ponding Province." In accordance with the aforesaid para. 9 of the .Fourth Schedule‑ to the Constitution, such member of the Legislature was entitled to receive the remuneration which under a law, prior to the Constitution Day, such member was entitled to receive. Plaintiff received salary for a period of two months following the 25th of June 1958, and prior to the dissolution of the Legislature on October 7, 1958. Sometime later the Provincial Government demanded a refund of the amount paid to him by way of ‑salary for two months as stated above. This was resisted by plaintiff who instituted‑the present suit for a declaration that he was holding office as a member of the East Pakistan Provincial Assembly till the dissolution on October 7, 1958. 'The suit was contested by defendants. The learned Munsif who had tried the suit, gave a declaration in favour of plaintiff. On appeal, the judgment and decree passed by the trial Court were affirmed by a Subordinate Judge of Chittagong. Hence this appeal. At the hearing of this appeal under Order XLI, rule 11, of the Code of Civil Procedure it was argued that the judgment and decree passed by the learned Subordinate Judge could not be sustained in law. Mr. Jani Alam drew our attention to the provi sions of Article 193 of the Constitution which empowered the president to make the aforesaid proclamation. He then referrer to Article 221 thereof which had repealed the Government of India Act, 1935, as also the Independence Act. He then made 'a faint argument to the effect that since the salary of a member of the Provincial Assembly was fixed under a law owing its vires to provisions of the said constitutional enactments which stood repealed by the Constitution, there was no legal authority upon which the salary could be claimed by a member of the Legislature. The short answer to the point is that under the provision of para. 9 of the Fourth Schedule to the said Constitution the salary of the member which was fixed under the repealed Constitution, became the salary of a member of the Provincial Legislature, under that Constitution, namely, the Constitution of 1956. Mr. Jani Alani has next argued that inasmuch as the Legisla ture was suspended and was not actively functioning prior to its dissolution in October 7, it could not be said to be alive. This argument is wholly untenable. Can it be said that during such interregnum the Legislature was dead and that a member of such Legislature was not entitled to receive the remuneration allowed to him by law? There can be no manner of doubt whatsoever that until the Legislature is dissolved it is alive. If it is suspended its life would be in a state of suspended animation. The Consti tution of 1956, empowers the Provincial Governor to dissolve the Provincial Legislature but it was not so dissolved. If the Provincial Legislature has been alive, though in a suspended state, there is no escape from the proposition that a member of the said Legislature was entitled to receive such remuneration as was allowed by law.' Therefore, this appeal has no substance and it is dismissed under Order XLI, rule 11, of the Code of Civil Procedure. ABU MD. ABDULLA, J.‑I agree. K. B. A. Appeal dismissed.