P L D 1964 (W (PLP)

MUHAMMAD IQBAL, J.‑This is a petition under Article 98 (2) (b) (ii) of the Constitution of the Republic of Pakistan for an order requiring respondent No. 3 to show under what authority of law he claims to hold the office of Vice‑President, Cantonment Board, Lahore, and for his removal from the said office.

2. The facts, which are relevant for' the purpose of this petition are that one Mian Rafi‑ud‑Din, Vice‑President of the Lahore Cantonment Board, was removed from his office by the Central Government, after a non‑confidence motion was passed by 2/3rd majority of the elected members of the Board at a meeting specially convened for that purpose. The Government of Pakistan, in exercise of the powers vested in it, under sub section (3) of section 21 of the Cantonments Act, 1924, vide letter No. 65/5/G D‑5 (e)/61, dated the 4th of November 1961, declared the seat vacant. A special meeting was, therefore, convened on the 20th of November 1961, for a fresh election of the Vice‑President, under section 20 of the Cantonments Act, 1924. The Vice‑President, under subsection (3) of section 20 can be elected only by the elected members and from among their number. There were only seven elected members and all of them attended the meeting. The name of Mian Rafi‑ud‑Din was proposed by one Muhammad Husain, and was seconded by Babu Faqir Muhammad, while Dr. Aziz Ahmad Beg proposed the name of the respondent, which was seconded by Qari Abdul Hamid. The respondent objected that the name of Mian Rafi‑ud‑Din could not be proposed under Regulation No. 10 of Business Regulations, as three months had not elapsed since the first resolution of non‑confidence was passed against him. The objection was upheld by the President. Mian Rafi‑ud‑Din, thereafter proposed the name of the petitioner as a candidate for election. The respondent objected to this proposal as well and claimed that after the rejection of the nomination papers of Mian Rafi‑ud‑Din, he was the only candidate left in the field, and the President, therefore, should forthwith declare him, under sub rule (3) of rule 3 of the Cantonment Board (Election of Vice President) Rules, 1961, duly elected. The President adjourned the meeting for ten minutes, and during this interval consulted Mr. M. A. Qureshi, Deputy Director, Military Lands and Cantonment, Government of Pakistan, and after explaining the position, sought his advice. The Deputy Director advised that as the proposing of the name was in progress, the President was competent to permit the proposal of the name of Mr. Khan Muhammad Khan the petitioner. These facts are discovered from a letter, dated the 15th of January 1962, from the Executive Officer, Lahore Cantonment to the Director, Military Lands and Cantonment, Government of Pakistan, Ministry of Defence, Rawalpindi. The President, thereupon, gave a ruling that the name of the third candidate could be proposed. The name of the petitioner was consequently proposed and seconded. Instead of voting by secret ballot, as required by sub‑rule (4) of rule 3 of the aforesaid rules, the voting was done by show of hands. The petitioner got four votes as against three votes polled by the respondent, and as such was declared duly elected as Vice‑President. The petitioner thereafter functioned as Vice‑President of the Board, and consequently as an Ex‑officio Member of the District Council, Lahore, under the Basic Democracies Order, 1959.

3. Being aggrieved by the decision of the President, the respondent filed a representation to the Central Government, dated the 16th of December 1961, and prayed that the election of the petitioner should be declared null and void, and he be declared instead as having been elected unopposed Vice‑President of the Lahore Cantonment Board in consequence of the rejection of the candidature of Mian Rafi‑ud‑Din. The Government accepted the representation, and issued a letter to the President Cantonment Board, Lahore, (Annexure "E"), dated the 19th of February 1962, which for convenience of reference is repro duced:-- "The representation has been considered. In accordance with the relevant rules, the Presiding Officer after ruling out the candidature of Mian Rafi‑ud‑Din, under Regulation 10 of the Business Regulations, should have declared Malik Abdul Hamid Khan as duly elected. In fact, there was no scope for inviting fresh proposals after the stage of scrutiny had passed, and the President had no other alternative but to declare the only person remaining in the field duly elected. (2) Malik Abdul Hamid Khan may, therefore, be declared as duly elected Vice‑President of the Cantonment Board, in supersession of the previous declaration‑" This item was fixed for consideration in a meeting which was scheduled for the 28th of February 1962, and a supplementary Agenda (Annexure "D") was issued for the purpose.

4. The petitioner filed Writ Petition No. 194 of 1962 on the 27th of February 1962, and prayed that: "(a) A writ of mandamus or any other appropriate writ be issued to the President of the Board, and to the Government of Pakistan, not to give effect to the letter directing the Board to reconsider the question of the election of the Vice -President; (b) the Cantonment Board should continue to treat the petitioner as duly elected Vice‑President of the Board."

5. The meeting of the Lahore Cantonment Board was held as scheduled on the 28th of February 1962, and this letter (Annexure "F") was considered, and the following resolution was passed :‑ "Resolution to be considered in the next Cantonment Boar meeting. (15) To note Government of Pakistan, Ministry of Defence, Rawalpindi/Camp Karachi, letter No. 65/5/D5 (c)/61, dated 19‑2‑62, in respect of accepting the representation of Malik Abdul Hamid with regard to the election of Vice‑President and declaring him as duly elected Vice‑President of the Cantonment Board, Lahore, Cantt. Resolution.‑Considered. In compliance of the Government of Pakistan, Ministry of Defence, Rawalpindi, Letter No. 65/5/G/D5 (c),/61, dated 19‑2‑62, Malik Abdul Hamid is declared as duly elected Vice‑President in supersession of the previous declaration. M/s. Rafi‑ud‑Din, Muhammad Hussain, Babu Faqir Muhammad and Khan Muhammad Khan gave a note of dissent which is attached." It may be noticed that the persons who gave a note of dissent were the same, who earlier had voted for the petitioner. This clearly demonstrated that the petitioner enjoyed the confidence of majority of the elected members.

6. The writ petition was heard on the 17th of May 1962, and the relief claimed in (a) above, that the letter, dated the 19th of February 1962, should not be considered by the Board had by then become infructuous. Various contentions were raised, but the Court did not deem it necessary to examine them in view of the fact that they found themselves in agreement with the contentions raised by the learned Deputy Attorney‑General to the effect that the voting had been by the show of hands, and not by secret ballot with the result that the petitioner could not be declared to have been validly elected. The petition eras, there fore, dismissed on this ground alone.

7. The petitioner then filed the present petition and claimed the following reliefs :‑ (a) That an order be made under Article 98 (2) (b) (ii) of the Constitution requiring the respondent Malik Abdul Hamid show under what authority of law he claims to hold the office of the Vice‑President, Lahore Cantonment Board, and to enjoy other ex‑officio advantages ; (b) The illegality affecting his assumption of office is continuing one and against the law and public interest. He may be removed from the said office. It was objected on behalf of the respondent that the present writ was barred by the general principles of res judicata for the reason that earlier a petition for a writ of mandamus filed by the petitioner had already been dismissed on the same facts. It may, however, be noted that in that petition, the prayer of the petitioner "that he had duly been elected as Vice‑President" was refused on the ground that the election on which he had based his claim, being in violation of sub‑rule (4) of rule 3 of the Rules was void ab initio. The Court did not feel inclined to determine any other point. The relief claimed in this petition is, obviously. of the kind which is granted in a writ of quo warranto and, in fact, in the earlier petition no relief in the nature of quo warranto was claimed against the respondent. The writ petition, moreover, was filed on the 27th of February 1962, when the petitioner himself was acting as the Vice‑President, and the respondent had not assumed office, which could warrant a prayer for quo warranto against him. The petitioner, as a matter of fact, had no cause of action for this relief against the respondent when he filed the first petition for a writ of mandamus. The petitioner, moreover, could not be granted a relief in the nature of a writ of quo warranto in those proceedings. A proceeding for a writ of quo warranto is initiated to test the validity of an appointment to a public office, and a petitioner does not seek to enforce any right of his as such, nor does he complain of non‑performance of any duty towards him. What is in question is the right of the respondent to hold an office of public nature. In R. v. Rickets ((1838) 3 Nev. and P K B 151), it has been held that where a town councillor has been struck off the burgess roll for non‑payment of poor rates, but continues to exercise the duties of the office, the Court will not grant a mandamus to the mayor of aldermen to proceed to a new election, but will leave the parties to their remedy by writ of quo warranto. In R. v. Winchester Corpn. ((1837) 7 Ad. & E 215), it was held: The persons declared to be elected as town councillors by the Mayor or ward alderman, at a municipal election, and who had accepted the office and made the proper declaration, can only be removed from office by a quo warranto information and, therefore, a mandamus does not lie to admit other candidates who had the majority of votes. Further in Frost v. Chester Corpn. ((1855) 5 E L & B 1531), it was observed: It is an inflexible rule of law that where a person has been de facto elected to a corporate office and has accepted and acted in the office, the validity of the election and title to the office can only be tried by proceeding on a quo warranto information.

8. The writ of quo warranto is a common law process of great antiquity; a writ of right for the King against one who claimed or usurped any office, franchise or liberty, to inquire by what authority he asserted a right thereto in order that it might be determined. As regards `office', English Law originally confined it to cases of usurpation upon the Crown directly. But later on the remedy was held to apply equally to an office of a permanent character held at pleasure, provided it was of a public and substantive character, created by the Constitution itself, or by statute or as held in R. v. Marlin ((1851) 17 Q B 149), by statutory powers. The office of the Vice‑President is one which is filled by the exercise of statutory powers. The leading case on the point is Rex v. Speyer ((1916) 1 K B 595 at p. 608) and we cannot do better than to quote from the judgment of Lord Reading, C. J. "In early times the writ of quo warranto was in the nature of a writ of right for the King against any subject who claimed or usurp; d any office, franchise, or liberty, to inquire by what authority he supported his claim in order to determine the right: Blackstone's Commentaries, 8th Edn., Vol. 3, p.

262. It was a civil writ at the suit of the Crown Rex v. Marsdon 3 Burr. 1817. Originally the writ had to be returned before the King's justices at Westminster, but after wards only before the justices in eyre by virtue of the Statutes of Quo Warranto, 6 Edn. 1 (Statute of Gloucester) and 18 Edn. 1, statute

2. The writ of quo warranto, however, fell into disuse and led to the substitution of proceedings by way of information in the nature of quo warranto. Whatever the immediate cause of the change or whenever it was brought about is not ascertainable : Tancred on Quo Warranto, p. 2 ; but the practice of filing informations by the Attorney‑General in lieu of these writs is very ancient : Darley v. The Queen 12 Cl. & F

537. At a later period of the King's corner commenced the practice of exhibiting information of quo warranto at the instance of private persons, but this power of the King's corner was much restrained by the Statutes 4 and 5 Will. & Mar. c 18, which was passed to prevent malicious in formation at the suit of private persons being filed by the King's corner. In Rex v. Hertford Corporation 1 Ld. Raym. 426 it was decided that informations in the nature of quo warranto were within the purview of this statute, and thereafter the King's corner did not file informations without the order of the Court. Subsequently, the statute of 9 Anne, c 20, was passed to render informations in the nature of quo warranto more speedy and effectual and for the more easy trial of the rights of offices and franchises in corporations and boroughs. Since that time there has been a tendency to extend the remedy, subject to the discretion of the Court to grant or refuse informations to private prosecutors according to the facts and circumstances of the case, and hence it is that it becomes so difficult to reconcile many of the decisions, as was pointed out by Lord Brougham in Darley v. The Queen 12 Cl. & F 537." It is necessary to add that since the decision in Rex v. Speyer, the remedy against usurpation of office has been further simplified in England. Under section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938 (1‑2 Geo. VI, Ch. 63, informations in the nature of quo warranto have been abolished. The High Court now grants an injunction restraining any person from acting in an office in which he is not entitled to act. In our country also the High Courts were given powers to issue writs in the nature of quo warranto for the first time by the Government of India (Amendment) Act, 1954, whereby section 223‑A was inserted in the Government of India Act, 1935. The position under the Constitution of 1956 was substantially the same, and Article 170 empowered a High Court to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs, in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part 11 (i.e., the fundamental rights) and for any other purpose. From the language of the Article it seemed to be perfectly clear that the power of the High Court was not limited to writs in the strict English form, but extended to the making of orders restraining or directing any authority or Government which may be discharging executive functions in the Constitution. The Constitution of 1956 was abrogated by a proclamation issued in this behalf on the 7th of October 1958, and in pursuance thereof the President of Pakistan promulgated Laws (Continuance in Force) Order, 1958, and the Supreme Court and High Courts under clause (4) of Article 2 were given the "power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari". The omission of the words "direction, orders" or "in the nature of habeas corpus etc." which figured in Article 170 of the late Constitution was of significance. It was obviously intended to restrict the powers of the Superior Courts to issue such writs as were once issued by King's Bench Division. The Constitution of the Republic of Pakistan, 1962, is conspicuous by an absence of reference to any writs. Under Article 98 (2) (a) and (b) only direction and declaration can be issued. Instead of a writ of quo warranto, a High Court is empowered under Article 98 (2) (b) (ii) to "make an order requiring a person in the Province holding a public office to show what authority of law he claims to hold that office". This direction is obviously in the nature of a writ of quo warranto. The words "quo warranto" seem to have been omitted for the reason that no such writ can be issued in England today, because as observed earlier an information in the nature of quo warranto had been abolished under section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, and the High Court of England, in pursuance of that Act, can instead grant an injunction restraining any person from acting in an office in which he is not entitled to act". In substance, however there is no difference. The provision made in the Constitution is almost analogus to the provisions of "Adminis tration of Justice (Miscellaneous Provisions) Act, 1938, and we are in no doubt that in a direction under Article 98 (2) (b) (ii), we have to bear in mind the principles which were once applicable to the issuance of a writ of quo warranto.

9. To apply for direction under Article 98 (2) (b) (ii) it is, therefore, not necessary that the petitioner must necessarily claim a right in himself. In R. v. Speyer the appointment of a Privy Councillor was allowed to be questioned by a private person who had no personal interest in the matter. The petitioner has not claimed any relief towards vindication of his personal right, and if he had done so, we would not have hesitated to disallow the same, his earlier petition based on personal right having been already dismissed. The petitioner under the Constitution is not precluded from filing this petition against the respondent and the general principle of res judicata invoked by the respondent is not applicable to the present case.

10. It was contended on behalf of the petitioner, that since the earlier petition was decided on the ground that the election whereby the petitioner was elected, was void, the Court had impliedly held that the respondent had not been declared by the Central Government in its letter dated the 19th of February 1962 (approved by the Cantonment Board in its resolution, dated the 28th of February 1962) to be the Vice‑Chairman, because they could not have considered the question of validity of the election if in their opinion the respondent had already been duly elected as Vice‑Chairman. No such assumption is warranted for the reason that the petitioner was dismissed on the sole ground that the petitioner could not be granted any relief claimed in the petition, The Court, under the circumstances, did not feel the necessity to adjudicate upon other contentions raised before it.

11. The point which arises for consideration, therefore, is whether the respondent has a right to hold office as Vice -President of the Cantonment Board. His own case is that in the meeting held on the 20th of November 1961, the name of Mian Rafi‑ud‑Din was proposed and seconded, and thereafter his name was proposed and seconded for election as Vice‑President, and that since his objection that Mian Rafi‑ud‑Din was not eligible to contest the election was upheld, the result was that he remained the only candidate in the field for election and under Rule 3 (3) of the Election of the Vice‑President Rules, 1961, he should have been forthwith declared elected. According to him, the President had no jurisdiction thereafter to accept a fresh proposal of the name of any candidate, and all the proceedings, which took place thereafter, were null and void. In order to appreciate this contention, the relevant rule is reproduced:‑‑ "(3) Manner of Election : (1) Any elected member of the Board present at the meeting may propose by name any other elected member for the office of Vice‑President, and if another elected member seconds the proposal, the person proposed shall be deemed to be a candidate for the office of Vice‑President: Provided that if none of the elected members present proposes the name of another elected member, any elected member may propose his own name and thereupon he shall be deemed to be a candidate: Provided further that if no proposal is seconded, the elected member proposed shall be deemed to be a candidate . . . . . (2) If there is only one candidate, the President shall forth with declare such candidate to be elected." So under the law, a person is deemed to be a candidate when an elected member of the Board proposes his name and another elected member seconds the proposal. If, however, none of the elected members proposes the name of another elected member, a person can propose his own name and in that case, he becomes a candidate notwithstanding the fact that no one has seconded his name. In case, there is only one candidate, it is obligatory on the President to forthwith declare such a candidate to be elected. In the instant case, after the objection of the respondent as to‑ the eligibility of Mian Rafi‑ud‑Din had been accepted, the name of the petitioner was immediately proposed, but the respondent asserted that no new proposal could be made and he should be declared duly elected under sub‑rule (3) of rule 3.

12. The President rejected the point of order raised by the respondent because according to him the claim of the respondent was untenable. The President was competent to do so under Business Regulation No. 5 framed by the Cantonment Board, Lahore, in exercise of the powers conferred by subsection (1) of section 44 of the Cantonment Act, 1924. The said Business Regulation reads as: "(5) The President shall decide all points of order and procedure which may arise and his decision shall be final. It shall not be permissible to disallow consideration of any matter, which has been properly brought before the Board. If the President rises when any member is speaking, the latter shall resume his seat. The items on the Agenda shall b dealt with in the order in which they appear ; provided that the President may give priority to any item or items irrespective of their order on the Agenda." The decision of the President rejecting the point raised by the respondent, therefore, under the law was final.

13. Notwithstanding the provisions of Business Regulation No. 5, the order of the President seems to be unexceptionable. The meeting was convened for the election of the Vice‑President. Only the elected members could participate in this election under subsection (3) of section 20 of the Cantonment Act, which is as follows:‑ "20. (3) In every Board, in which there is more than one elected member, there shall be a Vice‑President elected by the elected members only, and from among their number in accordance with such procedure, as the Central Government may by rule prescribe." The members obviously had come determined to contest the election and had no idea of unanimously electing any person. The names were proposed and seconded. There is no provision for the scrutiny of the nomination papers in the rules. It is, however, always implied that before a person can contest an election he must be eligible to do so, and it is, therefore, incidental to the practice of all elections that an objection as to the competence of a candidate to contest the election can be taken. The respondent, therefore, could object to the eligibility of Mr. Rafi‑ud‑Din. This, however, does not mean that such objection can be taken only after all the candidates have been proposed and seconded. If there had been a provision to the effect that the objections could be raised only after the nomination of all the candidates had been made, there would be some scope for the respondent to say that no fresh proposals could be made after it was decided by the President that the name of Mr. Rafi‑ud‑Din could not be proposed. Since there is no such rule, the objection could be taken at the time when the name of Mr. Rafi‑ud‑Din was proposed, or even thereafter, but before the proceedings for the election could be deemed to be concluded under the rules. Simply because the respondent had objected after his name was proposed and seconded, it would not mean that the proposals had been completed in the sense that there was a legal bar to further proposals. It was during the course of the proposals that the respondent had objected and his objection was upheld. The President could, therefore, entertain proposals of fresh names. The acceptance of the contention of the respondent by the President would have meant a violation of the basic and fundamental principles of election. Wherever, a provision is made for election, the intention is that the office should be occupied by a person, who enjoys the confidence of the electorates. In the instant case, it was all the more important for the reason that although there were as many as 16 members of the Cantonment Board, the authority to elect the Vice -President was restricted to the 7 elected members. The rules are to be observed in spirit and substance, and not in a manner which would negative the intention of the law‑makers. If there is only one candidate, the President under sub‑rule (3) of rule 3 has to declare him as duly elected. Ordinarily there is to be a proposer and seconder before a person can be a candidate for an election. This is provided in sub‑rule (1) of rule 3 as well, but to that a proviso is also added that in a case where an elected member does not propose the name of another, anyone of the elected members can propose his own name, and, therefore, he is to be deemed to be a candidate. The right, therefore, is conceded not only to the electorate to propose a name but also to an individual member propose his own name. It thus enables. every elected member who wishes to contest to do so even if there is no one to openly propose him. The intention of the law being, to have an elected Vice‑President would, therefore, have been completely negatived if the President, on a technical objection raised by the respondent had declared him duly elected under sub‑rule (3) of rule 3 of the Rules and given no chance to the elected members to exercise their right.

14. It was next contended on behalf of the respondent that the order of the Chairman in refusing to declare him duly elected Vice‑President was set aside by the Central Government, which was competent to do so, and that being the case he had the right to continue in office by virtue of the Resolution of the Board of the 28th of February 1962, passed in pursuance thereof. Reliance in this behalf was placed on section 49 of the Cantonment Act for the exercise of such powers. The relevant section 49 is reproduced below :‑ "

49. If, on receipt of any information or report obtained under section 46 or section 47 or section 48, the Central Government or the Officer Commanding‑in‑Chief, the Com mand, is of opinion‑ (a) that any duty imposed oil a Board by or under this Act has not been performed or has been performed in an imperfect, inefficient or unsuitable manner, or (b) that adequate financial provision has not been made for the performance of any such duty, it or he may, direct the Board, within such period as it or he thinks fit, to make arrangements to its or his satisfaction for the proper performance of the duty, or, as the case may be, to make financial provision to its or his satisfaction for the performance of the duty: Provided that, unless in the opinion of the Central Govern ment or the Officer Commanding‑in‑Chief, the Command, as the case may be, the immediate execution of such order is necessary, it or he shall, before making any direction under this section, give the Board an opportunity of showing cause why such direction should not be made." The case of the respondent is that it was the duty imposed on the President to declare him as duly elected, and since he had failed to do so, the Government could direct the Board that such a duty should be properly performed. The provisions of section 49 come into operation only if the Board fails to perform the duty imposed on it. In the present case, the failure, if at all, was of the person presiding at the meeting and not that of the Board. It was, however, contended that in the term "Board", the Officers of the Board, including the President, are impliedly included, and, therefore, if the Board or any of them did not perform their functions properly, the Government was competent to give a direction as contemplated under section 49 of the Act. We see no warrant for such a proposition. The language is clear and the provisions of section 49 will be applicable only in cases where a duty is imposed on the Board and in no other case. They Government is to look into the affairs of the Board, and the Board is competent to look into the affairs of its own officers, including the President. The Central Government, therefore, could not, in the exercise of the powers conferred on it by section 49, pass the order dated the 19th of February 1962 in) respect of the decision taken by respondent No. 1.

15. Even if it is assumed that the Government could take notice of the action of the President of the Board and on an opinion formed by it that he had not performed the duty imposed on him, could validly give a direction to the Board for the proper performance of such duty the matter could have been considered only by the persons who were competent in law to do so. The election of the Vice‑President is restricted to the elected members and they alone could consider this matter. What, however, happened was that the whole Board consisting of 16 members considered the direction dated the 19th of February 196,2 of the Government in its meeting held on the 28th of February 1962. As already noticed, there are only 7 elected members. The resolution of the Board, dated the 28th of February 1962, shows that 4 members did not agree with the direction of the Government given in their letter, dated the 11th of February 1962, and had their dissent noted. If the letter of the Government, therefore, had been considered only by the elected members, the direction therein could not have been accepted. The respondent is acting only in pursuance of the resolution of the Board, dated the 28th of February 1962. This resolution having been passed also by the members, who were not elected members, was in contravention of rule 3 and is certainly without jurisdiction.

16. The respondent has not been able to show the authority of law under which he claims to hold the office of the Vice -President, Lahore Cantonment Board, and in the view of the matter we take, he has no right to enjoy that office. The office is declared vacant, and it shall be filled in due course by proper election held in accordance with the provisions of section 20 of the Cantonment Act, and the rules and the bye‑laws made thereunder. K. B. A. Petition accepted.