P L D 1964 (W (PLP)

ORTCHESON, J.‑On the 12th of July 1963, Mr. Mubin‑ul‑Haq Siddiqi, who claims to be still Speaker of the Provincial Assembly of West Pakistan (hereinafter referred to as the Assembly) filed a Writ Petition, No. 693 of 1963, against Mr. Muhammad Iqbal, Secretary of the Assembly as respondent No. 1, and Mr. Muhammad Ishaq Khan Kundi, Senior Deputy Speaker as respondent No. 2, praying that the respondents be directed by this Court to assist him in the performance of his duties and exercise of his rights and privileges as Speaker and should not interfere with his functioning as such. It was further prayed that respondent No. 2 be directed to show the authority by which he claims to act as Speaker of the Assembly.

2. The petition came up for hearing before a Division Bench of this Court, which, on the 18th of July 1963, passed the following order :‑ "Two questions fall for determination in this writ petition (1) whether the proceedings which took place in the meeting of the West Pakistan Assembly at 11‑20 a.m. on the 4th of July 1963, was (sic) a proceeding in the Assembly within the ambit of Article 111 of the Constitution, and (2) whether this Court has jurisdiction to go into this matter. Since the question of jurisdiction involved in this case is of general importance, we request the learned Chief Justice to nominate a larger Bench for its hearing, if possible during the summer vacations." The present Full Bench was constituted accordingly.

3. It may also be mentioned here that at the first hearing by this Bench on the 7th of October 1963, Mr. Mahmood Ali for the petitioner drew our attention to an application made on the 17th of July praying that Ch. Muhammad Anwar, who was subsequently elected Speaker, and all the other Members of the Assembly be added as respondents and, further, that the petitioner be allowed to amend the petition so as to challenge specifically the legality of the meeting held on the 4th of July at 11‑20 a.m. The first prayer was granted and Ch. Muhammad Anwar was directed to be added as respondent. The second and third prayers were rejected, it being held that the grant of the third was implied in the order admitting the writ petition to full hearing, while it was not considered necessary at that stage to pass any order impleading the Members.

4. The facts as alleged by the petitioner are that he was unanimously elected Speaker of the Assembly on the 12th of June 1962, a notification to that effect being published in the Gazette of West Pakistan, Extraordinary, of the same date. On the 10th of June Mr. Nabi Bakhsh Khan Zahri, a Member of the Assembly and Deputy Leader of the Conventionist Muslim League Assembly Party, gave notice of his intention to move the following resolution :‑ "This Assembly resolves that Mr. Mobin‑ul‑Haq Siddiqi having lost the confidence of an overwhelming majority of the Members of the Provincial Assembly, being unfit for the office which he at present holds having lowered the prestige of the Assembly in the eyes of the general public in the way he has conducted the proceedings having misused his official position generally, is removed from the office of the Speaker of the Provincial Assembly of West Pakistan."

5. The above resolution was entered in the Orders of the Day for the 4th of July 1963, being placed at No. 1 after the question hour. On the date fixed the petitioner came to the Assembly before 8‑00 a m., the hour fixed for the opening of the sitting and, according to the usual practice, remained in his Chamber awaiting information regarding a quorum. The bells were rung at 8‑00 a.m., the usual signal that Members should attend in the House. The petitioner contends that several times between 8‑00 and 9‑ 0 a m., a quorum was formed, but was promptly broken by the ministerial group. At about 9‑00 a.m. the petitioner was informed by the Deputy Secretary that the House was in quorum, but before be could don his robes he was informed that the quorum hid again been broken.

6. After waiting in his Chamber till about 9‑45 a.m. for intimation of the quorum the petitioner entered the Assembly Hall and took the chair, but two Members, Malik Qadir Bakhsh, the acting Law Minister, and Nawabzada Iftikhar Ahmad Khan Ansari, raised the point of order that there was no quorum. The petitioner accordingly adjourned the House till 8 00 a.m. on Friday, the 5th of July and returned to his Chamber, where he remained until about 1‑30 p.m.

7. At about 10‑50 a.m. the petitioner heard the bells ringing, and on learning that this bad been done under the orders of the Secretary, sent a written order to the latter to stop the bells, the House having already been adjourned the Secretary, however, failed to comply with the order.

8. At about 11‑10 a.m., the Secretary entered the petitioner's Chamber and asked him to preside over the meeting of the Assembly as the quorum was complete. The petitioner repeated to the Secretary that the House had been adjourned and that he should inform the Members present accordingly. This verbal intimation was followed by a written order, but both were disregarded, and the petitioner subsequently learned that respon dent No. 2 had been asked to preside over the meeting. He accordingly sent a note to the respondent informing him that no meeting could be held in view of the adjournment and that he should not preside over the illegal meeting. He also directed the Sergeant‑at‑Arms to clear the hall, but the order was not complied with. On the contrary, respondent No. 2 gave a ruling that the House could not have been adjourned by the petitioner and that the meeting was valid. The following day the petitioner learnt through the press and a Gazette Extraordinary dated the 4th o f July that the Members of the Conventionist Muslim League Assembly Party, purporting to act as the Assembly, had passed a resolution removing the petitioner from the office of Speaker, and that respondent No. 2 had taken over as acting Speaker. It was further reported that at the above meeting 102 members voted in favour of the resolution and 2 against it.

9. The petitioner challenges the proceedings at which the above resolution was passed on the following grounds :‑ (a) That in adjourning the meeting he acted strictly in accordance with Article 110(2) of the Constitution of the Republic of Pakistan (hereinafter referred to as the Consti tution) which, according to him, gave him an unfettered discretion either to adjourn the meeting or to suspend it. (b) & (c) That under rule 18 of the Rules of Procedure of the Assembly a sitting shall commence and end at such hours as the Speaker may appoint. The commencing hour had been fixed by the petitioner at 8‑00 a.m., while his order of adjournment at 9‑50 a.m. amounts in law to the appointment of that hour for the conclusion of the sitting on the day in question. (d) That the so‑called meeting held at 11‑20 a.m. was not called by a person competent to call it and was consequently wholly illegal and unconstitutional. (e) That the provisions of rule 10(4) of the Rules of Procedure were subject to the provisions of the Constitution and of the other rules. The rule in question runs "if there is an item relating to the removal of the Speaker or a Deputy Speaker in the agenda of a sitting, the sitting shall not be adjourned until the resolution has been disposed of." (f) That as the petitioner was present in his Chamber in the Assembly, respondent No. 2 could not preside over the meeting on the date in question, the 'petitioner being neither absent nor unable to preside. (g) That as there is no specific provision for the situation where there is no quorum for so long a period as one hour and fifty minutes, the petitioner acted with authority in adjourning the House. (h) That as no meeting of the Assembly could be held till 8‑00 a.m. of the 5th of July (not the 5th of June as given in the petition) the alleged meeting presided over by respondent No. 2 was ultra vires of the Constitution and of the Rules of Procedure. ' (i) That even assuming, without conceding, that the decision of the petitioner to adjourn the House was not strictly correct in law, it was not open to the respondents or any other person to override it. (j) That no notice of the meeting held at I1‑20 a.m. had been given as required by law. (k) That respondent No. 1 acted illegally in publishing the results of the votes of no‑confidence. (l) That respondent No. 2 acted illegally, without authority and against the provisions of the Constitution and the Rules of Procedure in presiding over the alleged meeting of the Assembly and in announcing the results of the vote of no confidence. (m) & (n) That respondent No. 2 had no authority to claim to be the acting Speaker of the Assembly, there being in law no such office.

10. The petitioner further contends that even if the meeting in dispute be held to be otherwise valid, the proceedings are vitiated by the fact that the secrecy of the ballot was not observed. This argument rests on the admitted fact that both the ballot papers and the counter‑foil in the stub book bore numbers.

11. Written statements were submitted by the original two respondents and by Ch. Muhammad Anwar. The following preliminary objections were raised :‑ (i) That this Court has no jurisdiction to entertain the writ petition or, in any case, to grant the relief sought for in view of the clear provisions of Article III of the Constitution. (ii) That respondent No. 1 cannot help the petitioner in the performance of his so‑called duties and enjoyment of his so‑called privileges there being already a Speaker in office, respondent No. 1 having consequently no power to obtain for the petitioner that which the House would not or does not permit him to enjoy. (iii) That the relief claimed against respondent No. 2 is infructuous, the Deputy Speaker only performing the functions of Speaker in the absence of the latter. (iv) That as an overwhelming majority of the Members of the Assembly have expressed their opinion that they have no confidence in the petitioner, this Court should not come to his aid. (v) That even if this Court granted the petitioner the reliefs sought, its order could be set at naught by the House immediately thereafter, a writ being consequently ineffective. (vi) That this Court should not grant any relief to a person who has attempted to thwart the democratic process and has not come to Court with clean hands.

12. On the merits it is contended that at 8‑45 a.m. on the 4th of July the Deputy Secretary of the Assembly was directed to inform the petitioner that a quorum had been formed, but that respondent No. 1 was told by the Deputy Secretary that the Speaker was busy in conversation with some Members of the Assembly and had paid no been to the message. A second unsuccessful attempt wav then made to convey the information. It is further stated that although convention required that the Speaker should enter the House in procession, the petitioner rushed unceremoniously into the Chamber, immediately adjourned the meeting without observing the parliamentary formality of a recitation from the holy Qur'an by, the Qari of the Assembly, and rushed back to his Chamber in spite of the fact that two Ministers had made a statement that the House was in quorum. Reliance is placed in this connection on Annexure `R‑A' to the written statements, a copy of the proceedings which took place at 9‑40 a m. on the 4th of July. (According to this document, however, only the Minister of Agriculture is described as having stated that the House was in quorum).

13. The respondents urge that in view of rule 10 (4) of the Rules of Procedure the petitioner had no authority to adjourn the sitting, and that consequently, after consulting the Law Officers of the Government and others and obtaining an opinion to that effect, the meeting was held at 11‑20, the Deputy Speaker, respondent No. 2, giving a ruling that the proceedings were legal, the petitioner having refused to preside over the meeting. The resolution relating to the removal of the petitioner was then taken up and put to the vote. The allegation that the secrecy of the ballot was violated is denied, and it is further contended that as the petitioner raised no objection at that time to the manner of voting, he is estopped from doing so now. It is further denied that any notice of the meeting was necessary.

14. Respondent No. 3 adds that he was duly elected Speaker of the Assembly at a meeting held on the 16th of July, the Assembly thus reaffirming its action in removing the petitioner from office.

15. Although Mr. Mahmood Ali for the petitioner argued the petition at very great length, the case is essentially simple, the petition meriting dismissal on three separate grounds, the first of which is that this Court has no jurisdiction to entertain it.

16. Article 111(1) of the Constitution lays down that the validity of any proceedings in an Assembly shall not be questioned in any Court. A comparison of this Article with Article 89 of the Constitution of 1956 further reveals that the two provisions are in effect identical, the only difference being that Article 111 of the present Constitution has introduced anew clause (clause (5)) to the effect that no process issued by a Court or other authority shall, except with the leave of the Speaker of the Assembly, be served or executed within the precincts of the place where a meeting of an Assembly is being held. This clause is, however, totally irrelevant to the present case.

17. The question of the power of this Court to interfere in writ jurisdiction with the proceedings of Ail Assembly has been considered in Pakistan v. Ahmad Saeed Kirmani and others (P L D 1958 S C (Pak.) 397). The same matter between the same parties had been dealt with by a Full Bench of this Court in Ahmad Saeed Kirmani v. Ch. Fazal Elahi, Speaker, West Pakistan Assembly and others (P L D 1956 Lah. 807) and the learned Chief Justice had expressed the following view:‑ "I have formed the opinion that in a proper case, the writ jurisdiction of this Court could be legitimately invoked where, for instance, the so‑called proceedings in the Assembly, are really outside the purview of the Constitution Act." Commenting upon the above opinion, the learned Judges of the Supreme Court in the subsequent appeal remark: "This statement taken by itself is unexceptionable, provided it is clearly understood that any proceedings which can fairly be described as `internal proceedings' relating to the proper business of the House are wholly outside the corrective jurisdiction of the High Court. The means of correction which are contemplated by a Constitution providing for a form of Parliamentary Government are, in matters of this kind involving coercion or mala fides, exclusively of a political kind. The very high authority vested in a Provincial Legislative Assembly which can make and unmake law is to be exercised by the method provided in Article 88 of the Constitution, namely, by the method of decision `to be taken by a majority of the Members present and voting'. It appears to me to be unconceivable that a decision so taken, where the division of Members of the House is on party lines, can be subjected to examination and either confirmation or rejection by the Courts, without one of two extreme dangers arising to the integrity of the very fabric upon which the Constitution is based. Either the authority of the Legislative Assembly, which is to be asserted by the fact of a majority of the Members being in favour of a proposition, will be irretrievably destroyed in the process, should the Courts prevail, or in the alternative, the authority and the whole standing of the Courts will be incurably diminished and the high position which is given to them in the balance of powers within the Constitution, will be prejudiced in such a way, as to render their functioning nerveless and even possibly of danger to the body politic, were they ever to attempt to resolve disputes between con tending political parties inside the House, on the basis of justice, equity and good conscience. The Constitutional provision being that an Assembly shall function by the method of recording majority votes, and the recording of such votes being governed by statutory procedure which makes in entirely an internal proceeding of the House, it is to be regarded as a requirement of the Constitution that the manner of procure ment of such a majority within the House shall not become the subject of scrutiny and determination by the Courts."

18. Mr. Mahmood Ali attempted to distinguish the 'above decision, arguing that it was given on the basis of the. 1956 Constitution, which was in essence Parliamentary, whereas the present Constitution is described by Mr. Mahmood Ali as being of the Presidential type. He further contends that an examination of the ruling in question shows that the discussion is based on the historical background, which background has now been changed. I am not impressed with this argument. Since the relevant provisions of the two Constitutions are, as has been pointed out, identical, the onus lay heavily on the petitioner of showing that the principle off interpretation laid down by the learned Judges of the Supreme Court is no longer applicable, which he has entirely failed to do.

19. The learned Advocate‑General for the respondents advanced the proposition that this Court does not even possess the jurisdiction to go into the question whether any particular events taking place in the Assembly fall within the ambit of the word "proceedings" as used in Article 111 of the Constitution. Not only is this argument on the face of it untenable, but it stands disposed of by the same decision of the Supreme Court. Attention may be drawn to the following observation :‑ "In this view of the matter the question before the High Court, and which alone the High Court could properly investigate, was‑are the proceedings whose validity is impugned fairly within the meaning of the expression `internal proceedings of the Provincial Assembly'?"

20. In the present case I have no hesitation in answering the question posed above in the affirmative. Assuming for the sake of argument that any irregularity of procedure was com mitted, even an irregular proceeding is still a proceeding within the meaning of Article 111 of the Constitution.

21. In support of his contention that this Court has jurisdiction to issue a writ of quo warranto against the original respondent No. 2 and against Ch. Muhammad Anwar, the present Speaker, Mr. Mahmood Ali cited A. Nesamony v. T. M. Vorghese and another (A I R 1952 Travancore‑Cochin 60) in which a learned Judge pointed out the distinction between a writ of mandamus which, as he puts it, can only be brought by a person having a legal right to the performance of the alleged legal duty by the party against whom the application is made, and a writ of quo warranto, which, according to the learned Judge, can be brought by any person by virtue of his right as a citizen to see that the Legislature acts and transacts properly. Mr. Mahmood Ali has, however, failed to show that the provisions of the Consti tution of India are identical with the Constitution of Pakistan in this matter, quite apart from the fact that this Court is bound by the decisions of the Supreme Court of Pakistan.

22. In view of my finding that this Court has no jurisdiction to entertain the petition before us, it is unnecessary to comment on Mr. Mahmood Ali's exhaustive analysis of the Rules of Procedure, except to the extent indicated below.

23. Two other aspects of the matter require consideration. The first is that there is considerable force in the contention of the respondents that any relief granted to the petitioner could be nullified by the Assembly in its next session. The result of the voting at the two meetings on the 4th and 16th of July respectively conclusively shows shat the petitioner had lost the confidence of the majority of the Members. Not only was the resolution for his removal passed almost unanimously (only two votes being cast against), but it was conceded by Mr. Mahmood Ali that at the meeting for the election of a new Speaker 86 Members cast their votes in favour of Ch. Muhammad Anwar. Moreover, if the petitioner considers that the tide has since turned in his favour, he should seek his remedy before the proper forum, namely, the Assembly itself.

24. The other aspect is that there is also prima facie much substance in the assertion of the respondents that the petitioner, having himself disregarded the established conventions and the Rules of Procedure, has not come into Court with clean bands. Attention has been drawn above to rule 10 (4) of the Rules of Procedure, which requires that if there is an item relating to the removal of the Speaker or a Deputy Speaker in the agenda of a sitting, the sitting shall not be adjourned until the resolution has been disposed of. It can thus be argued with a considerable show of reason that the action of the petitioner in adjourning the sitting instead of suspending it‑the only other alter native open to him under Article 110 (2) of the Constitution was illegal. Mr. Mahmood Ali strenuously urged that clause (1) (a) of Article 110, which lays down that the procedure of an Assembly shall be regulated by Rules of Procedure made by the Assembly, is subject to clause (2), but I am unable to agree in the sense in which Mr. Mahmood Ali understands the matter. The clear meaning of the Article taken as a whole appears to me to be that while clause (1)(a) requires that the whole procedure of the Assembly shall be regulated by rules, (2) imposes the limitation that no rule shall be framed providing for a quorum of less than forty Members. Subject to this limitation, however, it is within the power of the Assembly to pass a rule or rules laying down in what circumstances a meeting consisting of less than forty Members shall be adjourned and in what circumstances it may be suspended. The petitioner himself in ground (i) of paragraph 19 of his petition appears to have same doubt as to the legality of his action, stating: "That even assuming without conceding that the decision of the petitioner to adjourn the House till 8 a.m. on the 5th of July 1963, was in law not strictly correct * * * *".

25. The respondents have also drawn attention to the requirement of rule 154 of the Rules of Procedure that before finally adjourning the Assembly till the next day, the petitioner should first have adjourned it for fifteen minutes. The rule runs: "If at any time during a sitting of the Assembly the attention of the Speaker is drawn to the fact that less than forty members are present he shall adjourn the Assembly for fifteen minutes, and if on a fresh count being taken after that period it is found that there still is no quorum, he shall adjourn the Assembly till the next working day. It is not asserted by the petitioner that the above procedure was followed, and taking all the circumstances into consideration, including the omission of the customary recitation froth the holy Qur'an it is difficult to resist the conclusion that the petitioner was so eager to defer at all cots the consideration of the resolution against him that he deliberately flouted the accepted conventions and rules. Such conduct on his part, in my opinion, disentitles him to any relief.

26. For the above reasons I would dismiss the petition with, however no order as to costs. MUHAMMAD YAQUB ALI KHAN, J.‑I agree. MUHAMMAD IQBAL, J.‑I agree K. B. A. Petition dismissed.