P L D 1966 Supreme Court 854 (PLP)

CORNELIUS, C. J.‑This judgment relates to 20 Civil Appeals in each of which the Province of East Pakistan is the appellant and the respondents are members of the Electoral College of Pakistan Constituted under the Electoral College Act, 1964, who have succeeded in obtaining from a Full Bench of five learned Judges of the Dacca High Court (Sattar, J. dissenting) writs to quash notification by the appellate Government constituting Union Councils or Union Committees or Town Committees, being the primary Basic Democracies in Pakistan of which these persons thereby became members. The Electoral College of Pakistan is constituted under Chapter 2 of Part VII of the Constitution of 1962. The provisions of this Chapter will require examination in detail. To explain at this stage the nature of the order made by the High Court, it will be sufficient to say that under subsection (4) of Article 158, members of the Electoral College are required to be invested with functions under law besides those of being the College for the election of the President and of the National and Provincial Assemblies. This subsection in particular enjoins that "provision may be made by law for conferring on members of the Electoral College functions in relation to matters of local Government." By section 57 of the Electoral College Act, effect is given to this mandate of the Constitution in the following terms :‑ "

57. Conferment of powers relating to Local Government, etc.‑For the purpose of conferring on the members of the Electoral College functions in relation to matters of Local Government, the Provincial Government shall‑ (a) arrange the electoral units in the rural and urban areas into groups so that each such group is a Union or, as the case may be, a Town; and (b) declare, by notification in the official Gazette, that the members for the electoral units within a Union or Town shall, with effect from such date after they have once performed their functions of electing a President and the members of the National and Provincial Assemblies as may be specified in the notification, constitute the Union Council or Committee for the Union or, as the case may be, the Town Committee for the Town." The petitioners before the High Court were members from their respective electoral units which had been grouped into Unions by notification under section 57 (b) above. The High Court granted to each petitioner a declaration that the Union Council or Union Committee of which he by virtue of notice became a member was constituted without lawful authority and the constitu tion is therefore of no legal effect. In a number of cases, relief had also been sought in respect of the election of Chairmen of these Union Councils or Union Committees, and in these cases the High Court has also granted a declaration that such elections were without lawful authority and of no legal effect. The principal judgment in the case is that delivered by the Chief Justice. It declares that section 57 of the Electoral College Act is ultra vires of the Constitution and that all acts done thereunder are without lawful authority. With reference to the election of Chairmen, the learned Chief Justice has found that the relevant rules, namely, the East Pakistan Union Councils and Town and Union Committees (Election of Chairmen) Rules, 1965, are ultra vices and consequently elections thereunder are without lawful authority. Two other learned Judges, namely, Salahuddin Ahmad, J. and A. M. Abdullah, J., who concurred as to the result of the petitions with the view of the learned Chief Justice added their opinions on constitutional questions arising under Articles 131 and 132, dealing with the law‑making powers of the National and the Provincial Assemblies. Mr. Justice Sattar in his dissenting judgment found section 57 aforesaid to be intra vices of the Constitution and equally that the Election of Chairmen Rules were intra vires. It should be mentioned that earlier a Special Bench of three learned Judges of the same High Court headed by Sattar, J., dealt with 19 writ petitions challenging the constitution of Unions and Committees, and unanimously held that section 57 aforesaid was intra vices of the National Assembly, and was not vitiated, in respect of efficacy as law, by the rule of excessive delegation. The judgment here under appeal reverses the findings of the Special Bench. The legality and propriety of such an action by the High Court will be considered in due course. No proper understanding of the administrative complex that has been declared to be devoid of basis in law by the judgment under appeal can be formed without a statement of the entire background of the system of Basic Democracies which was introduced in Pakistan in the year 1959 during the Martial Law k regime, by a supra‑constitutional Presidential Order known as the Basic Democracies Order, 1959. It is a matter for regret that in the judgment of the learned Chief Justice the statement: of this background is contained in a passage covering no more than 19 lines. The total number of Union Councils and Town and Union Committees constituted under section 57 aforesaid is in excess of 4300. These are the primary democracies and the area included within these democracies appears to cover virtually the whole territory of East Pakistan except for 10 mauzas contained in a single Union in Rajshahi District. Under the Basic Democracies Order, the method by which these Councils and Committees were constituted was the following. Under Article 8, the Commissioner was required to divide urban and rural areas into Unions or Towns, these being the primary Basic Demo cracies. Article 8 required that he should do so in the prescribed manner, i.e., as prescribed by Rules. Two Rules were made by the Provincial Government for the guidance of Commissioners in this matter. These are rules 4 and 5 of the Basic Democracies Conduct of Election Rules, 1959. They are of a strikingly simple character. Rule 4 required that regard should be had to the following matters, namely, population, national boundaries and local convenience, in demarcating these small areas of Local‑self Government. Rule 5 had reference to Article 11 of the Order whereby Commissioners were required to decide what number of elected members there should be in each Union or Town. It laid down that there should be one elected member for every 1000 of population, but gave the Commissioner a wide discretion in this matter by adding that he could fix "such other number of members as may be expedient." This rule further laid down that the number of elected members in each Council or Committee should ordinarily be 10, but here too, in order to meet special or local requirements, the number could be varied by the Commissioner in such manner as he considered expedient. The elected members were to be returned by votes and the Commis sioner was required to divide the area of each Union or Town into a number of wards equal to the number of elected members which he had already fixed. Thereafter, an Electoral Roll was to be prepared according to certain rules, and by a process of election for which detailed provision was made, each ward was to return a member that is to say, a Basic Democrat. The area having already been demarcated, of which the persons so elected were to constitute a Union Council (if it were a rural area) or Town Committee (if it were a town) or a Union Committee (if it were part of a Municipality), each Council/Committee was then to elect a Chairman, and this was to be done according to rules to be made. It should be mentioned that in the relevant Articles of the Order, the requirement of prescription by Rules is express. There is also in the Order an Article, via., Article 89 of a general character conferring the rule‑making power. This was in two sections. Section 1 empowered the Government to "make rules to carry out the purposes of this Order". Section 2 opening with the words "in particular and without prejudice to the generality of the foregoing power" provided that such Rules may relate to "all or any of the matters enumerated in the Sixth Schedule and all matters incidental, consequential and supplemental thereto." In this Schedule, item 5 read as follows:‑ "Election of Chairmen" but there was also a residuary item, viz., 25, in the following words :- "Any other matter required under any of the provisions of this Order to be prescribed." A double precaution to save the validity of any Rules made to carry out the purposes of the Order, against invalidation by reference to the specified items in the Schedule, clearly appears. Later in the judgment, it will be necessary to take support from this conclusion. Elections under the Order took place in January 1960. Areas having already been demarcated for Unions and Committees the process of elections for Chairmen, etc., and the assumption of civic functions was set in train. On the 4th of February 1960, all the Basic Democrats in both the Provinces in Pakistan, numbering some 80,000 in all, participated in a referen dum held under the Presidential (Election and Constitution) Order, 1960. The majority vote approved of Field Marshal Muhammad Ayub Khan, N. Pk. H. J., being President of Pakistan and also empowered the President to give the country a Constitution. Thereafter, the Basic Democrats were engaged in their normal civic functions, while the Constitution was in process of being formulated. It was promulgated on the 1st March 1962. In this Constitution certain important provisions were made in Chapter 3 of Part XII, under the heading "Transitional and Temporary Provisions". Article 226, laid down that Field Marshal Muhammad Ayub Khan, N. Pk., H. J., was to be the first President of Pakistan under the Constitution on the "commencing day", (which was the 8th June 1962) and would hold office for three years and 60 days from that date. This provision for duration was amended in 1964, to bring back the terminal date to the 22nd March 1965, that is some 4 months shorter than the period originally provided. By an earlier Article, viz. 165, it was provided that the election for the office of the President shall be decided by the votes of the members of the Electoral College constituted under Chapter 2, Part VII, which has already been mentioned. By Articles 160 and 161, it was further provided that the members of the Electoral College should be the voters for election of members of the Central and the Provincial Assemblies. In 1962, the Electoral College had not yet been constituted. According to Article 226 aforesaid, there was no necessity for a fresh election of the President, but a scheme was required for the first elections of members of the National Assembly and the Provincial Assemblies, and this was provided by Articles 228 and 229 of the Constitution. The Chief Election Commissioner appointed under Article 147 was required as soon as possible after the 8th June 1962, to take necessary steps for holding of these elections. By Article 229, it was expressly provided that the Electoral College for the purpose of these elections should be composed of persons who were "elected members of Union Councils, Union Committees and Town Committees under the basic Democracies Order" together with a few persons chosen in a manner to be decided by the Chief Election Commissioner to be representatives of areas which had not been brought under the Basic Democracies Order. In other words, by Article 229, the Basic Democrats were inducted into the scheme of the Constitution to replace for the first elections, the Electoral College which was yet to be constituted. Accordingly, the Basic Democrats aforesaid joined in the elections to the National and Provincial Assemblies held in April and May 1962, which elections were regulated by a Presidential Order, No. 4 of 1962. These Assemblies were by Article 230 to hold once for a period of three years from the date of the first meeting of each Assembly. The Constitution of 1962, it may be added, came into full force with effect from the date of the first meeting of the National Assembly elected by this method, which date was the 8th June 1962. Thereafter, the Basic Democrats, i.e., the elected members of Union Councils, and of Town and Union Committees, performed no further function in regard to elections except perhaps by way of bye‑elections to fill vacancies. In 1964, the Electoral College Act was passed, of which section 57 has been declared in forthright terms in the judgment of the majority to be ultra vires of the Constitution. A careful examination of the provisions of the Electoral College Act, 1964 will show that each of its provisions is in direct implementation of the Articles contained in Chapter 2, D Part VII of the Constitution. By Article 155, it is required that each Province shall be "divided into not less than forty thousand territorial units, which shall be known as electoral units". Sections 4, 5 and 6 of the Electoral College Act provide for delimitation of these electoral units. Section 4 repeats that there were to be forty thousand electoral units in each Province; section 5 enables the Chief Election Commissioner to appoint Delimitation Officers, and section 6 empowers Delimitation Officers to perform their duties under the superintendence and control of the Commissioners, and adds that each electoral unit should be delimited with regard to territorial unity, and also so far as practicable, with regard to distribution of population and administrative convenience. Power for examination of records, a procedure for publishing a preliminary list of electoral units as drawn by the Delimitation Officer after inviting objections, power for treatment of such objections and finally power to publish lists of electoral units were provided by section

7. Article 156 of the Constitution required the making of electoral rolls for each unit and Article 157 laid down the qualifications of persons, who were to be so enrolled. Detailed provisions for the making of electoral rolls are contained in sections 7 to 13‑A of the Electoral College Act. Article 158 of the Constitution provided comprehensively for the constitution of the Electoral College of Pakistan. Subsection (1) required that the persons on the electoral roll should elect from a among their number a person to be known as the Elector for that unit, i.e., the member of the Electoral College from that unit. Provision for these elections is contained in sections 40 to 48 of the Electoral College Act. Subsection (2) of Article 158 laid down that the electors from all the electoral units in both Provinces should jointly constitute the Electoral College of Pakistan and should be known as members of the Electoral College. For this, precise provision was made in section 51 of the Electoral College Act, and it should be mentioned that two preceding sections 49 and 50 which related to meetings of voters, etc., were subsequently omitted. I mention this to show how completely and how closely in proper order the sections of the Electoral College Act carry out the dictates of Article

158. Subsection (2‑A) of Article 158 lays down that an Electoral College shall continue for five years from the date on which it is deemed by law to be constituted and on the expiry of that period shall stand dissolved. Provision for this also is contained in section 51 of the Electoral College Act. Subsection (3) of Article 158 requires that the conditions on which electors shall remain members of the Electoral College shall be prescribed by law, and detailed provision for carrying out this, purpose, i.e., the question of qualifications, etc., is contained in section 53 of the Electoral College Act with which may be read sections 54, 55 and 56 relating to vacancies caused by disqualifications, by death or by resignation. The intervening section 52 of the Electoral College Act implements Article 159 of the Constitution which requires each elector upon being elected to take an oath for which a form is provided by the Constitution. The oath is designed to ensure that in casting a vote in the elections in which he was to participate, each member of the Electoral College, should make his choice in full realization of his high responsibility, i.e., he should give his vote, "honestly, without regard to personal gain or interest, without fear or favour, affection or ill‑will," in favour of that candidate who in his honest judgment "has the greatest concern for the solidarity, integrity, well‑being and prosperity of Pakistan, is the most honest, reliable and conscientious in his personal affairs and is most to be trusted to act in the public interest". This oath takes no account of the duties of local administration, but it is to be remembered that under the Basic Democracies Order (Article 23) each elected member, before taking his seat, is required to take a special "oath of office" in a different form. In other words, it would be a mistake to infer from the mere form of the constitutional oath that importance is not placed by the Constitution upon the investment of these members of the E Electoral College, with powers of Local Government. That becomes clear at once on reference to subsection (4) of Article 158, which was implemented by section 57 of the Electoral College Act. The rest of the Electoral College Act, comprising 31 sections, relates to "Election Disputes," "Offences, Penalty and Procedure" and to miscellaneous matters. Section 57 has already been cited above. The marginal note describes it as providing for "conferment of powers relating to local government, etc.," but does not confer any such powers directly. What it does is to require the Provincial Government firstly to constitute Unions and Towns by grouping together a number of electoral units from which members of the Electoral College had been elected, and thereafter to notify that in each Union or Town so created, members of the Electoral College elected from the electoral units in the Union or Town should on the date of the notification "constitute the Union Council or Committee for the Union, or, as the case may be, the Town Committee for the Town." By definition in item 25 of section 2 of the Act, the expressions "Union," "Town," "Union Council," "Union Committee" and "Town Committee" not being separately defined in section 2, were to have the same meanings as were applied to them by definition in the Basic Democracies Order. A particular point to notice in clause (b) of section 57 is that this constitution of members of the Electoral College into Union Councils and Union and Town Committees was to take place "after they have once performed their function of electing a President and members of the National and Provincial Assemblies". Points of difference clearly appear between the scheme of section 57, and that which had been implemented under the Basic Democracies Order. As has been pointed out, after their election under the Basic Democracies Order in January, 1960, whereupon they became immediately constituted into Councils and Committees by virtue of the relevant provisions in the Basic Democracies Order, and therefore charged with functions of local Government under the Order, the Basic Democrats participated in the referendum of February 1960. Thereafter, until April and May, 1962, they continued to discharge their functions of local government under the Order, with no other function to perform. After they had participated in the elections to the first National Assembly and Provincial Assemblies as provided by Article 229 of the Constitution, they resumed their functions of local administration. By section 57, however, the two functions, namely, of election and of local administration, were clearly and precisely separated from each other. The newly‑elected members of the Electoral College were to engage first m the election of the President and then of the National and Provincial Assemblies, and during the period required for this purpose, they were not to have any duties in regard to local government. Functions of local government for that period continued to be discharged by the Basic Democrats, who had been elected in January 1960. Provision was made for this in the Basic Democracies Order by amendment of Article

22. This Article originally fixed five years from the assumption of office by ‑a Union Council or a Union or Town Committee as the term of its office, but by Central Ordinance 2 of 1965, it was expressly provided that the earlier Union Councils were to continue in office until the constitution of new Union Councils and Committees under section 57 aforesaid. The new Electoral College was by notification in the official Gazette, deemed to have been constituted on the 21st November 1964. In January 1965, the members participated in the election of the President. In April 1965, and May 1965, they joined in the elections for National and Provincial Assemblies. It was thereafter, on the 16th August 1965 that in East Pakistan, a set of notifications was issued by the Provincial Government declaring the Unions and Towns that had been constituted by grouping of electoral units as authorised by section

57. It is necessary here to refer to a certain document placed before this Court, which apparently was not brought to the notice of the High Court. This is a letter issued by the Provincial Government on the 27th January 1965 to all Commissioners, asking for their proposals as to the grouping of the electoral units into Unions and Towns "for declaring the members for these units as constituting Union Councils/Committees or Town Committees." This is a printed document, and shows that it was widely circulated also to all Deputy Commissioners, to the Deputy and Assistant Directors of Basic Democracies and to all Sub‑Divisional Officers. It was produced by the Advocate General and its authenticity has not been questioned before us, nor does any reason appear why the slightest doubt should be entertained that this circular letter was indeed issued by the Government. The contents of this letter are of the greatest significance, and it seems regrettable that they were not brought to the notice of the Full Bench in detail. It should, however, be mentioned that in the judgment of the learned Chief Justice, there is an observation which indicates that even if this letter had been placed before the Court, it would have had no effect on the view formed in this respect by the majority, for the learned Chief Justice has made the following observation "The legality of the provision (i.e., section 57) is not to be judged by what in fact has been done by the Provincial Government, but by what is possible to be done under the powers created by law." The learned Chief Justice was of the view that section 57 was vitiated by what is known as excessive delegation, i.e., that the subject‑matter of the legislation, viz., section 57 was such that it was a legislative imperative that the executive authority to which powers were being entrusted should be furnished with "norms, standards, directives, policies" for the carrying out of the intention of the Legislature, and in this case, there was no guidance whatsoever provided. Therefore, it appears that the learned Chief Justice was not concerned to view the actual and practical implementation of the dictate of the Constitution, but was concerned rather with an aspect of legal theory which in his view was of sufficient force by itself to undermine the validity of the law that was made. Whether, in the circumstances, such an approach can be regarded as appropriate for the exercise of the powers of the High Court derived from Article 98 of the Constitu tion is a question which will be considered in the sequel. In my view, it is entirely necessary for the purpose of gaining a correct appreciation of the full scope of the scheme of Article 158, subsection (4) of the Constitution as implemented by section 57 of the Electoral College Act, that the principles formulated and the general instructions which were issued by the Provincial Government should be stated and should receive due consideration. The matter of first importance mentioned in this letter is that the number of electoral units allotted to the districts had been greatly altered by the Delimitation Commission, i.e., against the number of wards into which the existing Unions and Towns had been divided by the Commissioners. A statement was added in detail showing that in the 17 districts, the variation between the number of elected members of existing Unions and Town Committees and Councils and the number of electoral units allotted by the Delimitation authorities varied between a plus figure of 205 and a minus figure of 172, there being no case of exact correspondence and the smallest plus figure being 3 while the smallest minus figure was

50. With reference to 28 Town Committees, it was shown that there was a difference between the number of elected members and the number of electoral units relating to those Towns, in every case except one in the case of Union Committees, in 29 Municipalities, whose number totaled 197, only in the case of 10 Municipalities was the number of elected members of Union Committees equal to the number of electoral units. Re‑adjustment was clearly necessary for this reason, and for an additional reason, namely, that by 1964, owing to increase in the population, a unit had to be provided per 1250 of the population. There had been earlier instructions for combining two or more small units so as to get a minimum population of 7,000, and correspondingly to split up more populous units, but these had not been carried out, with the result that under existing conditions the number of elected members varied between 4 and 18 in the case of Union Councils, between 4 and 16 in the case of Union Committees and between 4 and 10 in the case of Town Committees. "Broad principles" were laid down to carry out the work of re‑adjustment and re‑formation of proper groups. The first instruction was that there should be no over‑lapping of Thana boundaries, although this direction was hardly necessary for simple reason that by the terms of the Basic Democracies Order, which in this respect were left unaltered by section 57, Chairmen of all Union Councils and Town Committees in a Thana were ex officio members of the Thana Councils, within which their Unions or Towns were situated and to have a Union or Town divided between two Thanas would create a difficulty. The second general principle was that electoral units formed by splitting up a single mouza were to be grouped under one particular Town or Union, that is to say they were not to be divided between two Unions or two Towns. The maximum number of electoral units to be grouped in the rural areas should be 12 and the minimum 6, and the existing rural Unions were to be adjusted to conform as far as possible to this standard, but in exceptional cases there could be varia tions. In urban areas, the minimum number of electoral units in a group should be 4 and the maximum 12, and the existing Unions and Towns were to be adjusted to conform to these standards, but again in exceptional cases, the limits could be exceeded. It was stated as another principle that subject to such adjustments where necessary, "there need not be any large‑scale revision of existing boundaries of any rural or urban Union or any Town." There were special provisions with respect to Municipalities, which included Union Committees. The maximum number of Union Committees in the Dacca Municipality was fixed at 100, but it was stated that preferably it should be less than

40. In the case of all other Municipalities, the maximum was fixed at 30, but preferably the number was to be kept down below

20. The minimum number of units for a Municipality was fixed at 15 with a object of securing that at least three members should be elected to the Municipal Committee. There are certain further instructions of a general character, e. g., advice with reference to a particular town that its units should be so grouped as to enable subsequent formation into a Municipality, and that certain areas, which were specially mentioned, might be considered for declaration as Towns, presumably because urbanization had proceeded there to a noticeable extent. It may be mentioned here that with reference to Municipalities there was included in Article 8 of the Basic Democracies Order a provision that in demarcating areas which were to be units within Municipal or Cantonment bodies, the number of such units should not exceed

50. In the new instructions, the limit of 50 appears to be exceeded only in the case of Dacca Municipality, where too the injunction was that the number should be kept down to 40, if possible. These then were the basic principles upon which the Provincial Government acted in carrying to the mandate of section 57 of the Electoral College Act, which itself was enacted in implementation of the dictate of Article 158 (4) of the Constitu tion. There was clearly need for re‑adjustment of the boundaries of Unions and Towns to adapt to the new delimitation of electoral units under the Electoral College Act and the rise of population. For the purpose of treating these pockets of local government out of the new electoral units the Provincial Government decided to exercise its power in such a way as to interfere, as little as possible, with the demarcation of Unions and Towns that had been made five years earlier by Commissioners under Article 8 of the Basic Democracies Order. Where there was need for variation, guidance was given to subordinate officials for framing of proposals to effect such changes, which proposals would be considered and a decision taken by the Government. From statements made at the Bar in the course of the hearing of those appeals, it became evident that there were in all probability only two cases where electoral units which were not directly contiguous bad been joined together in a Union. One was a case from Dacca, which finds mention in the earlier judgment of the Special Bench to which reference has been made, and before the Special Bench an undertaking was given by the Government that this error which had occurred through oversight would be corrected. The other case of this kind is where certain electoral units are divided by a broad river and as to this the information given by the Government was that these units lay within the same Thana and in consequence could not be combined with other Unions to which they may be contiguous. The only other complaint which was made was that of inclusion of certain areas previously designated as rural, within Union Committees which formed part of Municipalities. This may have reference to the instruction mentioned above by which the subordinate officers were directed to take notice of the process of urbanization. Mr. Farid Ahmad, who appeared for the respondents in a number of cases seemed to be concerned as to the effect of inclusion of such areas as Urban: Unions within a Municipality, without being included within the boundaries of that Municipality. The position would appear to be somewhat like this. If an area included within Municipal boundaries were included in a rural Union, then since under section 19 of the Municipal Administration Ordinance, a Municipality may only delegate its functions to a Union Committee, municipal functions within such area would continue to be performed by the Municipality and could not be delegated to the Union Council. The elected members of such a Union Council would not be entitled to participate in the election of a person to become a member of the Municipal Committee, but their Chairman would go to a Thana Council. In the opposite case, if an area adjacent to, but outside Municipal boundaries was included in a Union Committee, the powers of the Municipality would not be applicable to such an area, but powers of local government under the Basic Democracies Order would be exercisable by members of the Union Committee, and these members would be competent to join in electing a person to be a member of the Municipal Committee. There may be a measure of anomaly in these results, but where a scheme providing for local administration in small pockets was being laid over the entire territory of the Province. It was impossible that there should be no anomalies. To set aside the whole of the scheme by reason of a few anomalies of this kind which were said at the Bar to exist in no more than six cases is of course inconceivable. It has been seen that clause (b) of section 57 of the Electoral College Act expressly lays down that the notification of members of the Electoral College to be members of Unions and Councils under the Basic Democracies Order was to be postponed until after they had performed their functions of electing the President and the two Assemblies. This clause made it clear that the members in question were to be constituted as a Union Council or a Union/Town Committee only after they had performed their electoral functions. It has been seen also that this was in direct implementation of Article 158 of the Constitution. The Electoral College Act became law on the 17th April 1964. It was not until the 19th August 1964 that the National Assembly passed the National and Provincial Assemblies (Elections) Act, 1964 making provision for the elections of these three Assemblies through the Electoral College of Pakistan. The Act providing for election of the President, namely, the Presidential Election Act, 1964 was passed even later on the 30th August 1964. Thus, by means of these three Acts provision was made in comprehensive form for all the functions which Article 158 of the Constitution had laid down should be entrusted to the members of the Electoral College. The process was a long one, but it is important to note that it was in the first of the three Acts that were passed that priorities inter se were laid down as respects these functions. This too is in line with the wording of Article 158 (4), for it speaks of members having functions of local government in addition to their electoral functions under the Constitution in a manner indicating that there was to be subsequence. It is evident that the task of implementing Chapter 2 of Part VII of the Constitution in its entirety was undertaken and was intended to be undertaken by the Central Legislature. It was natural indeed that this should be so, since the election of the President and of the National and Provincial Assemblies is a subject which is placed by the Third Schedule to the Constitution within the exclusive legislative competence of the Centre. But among the provisions to be made, under the mandate of the Constitution, there was one which did not relate directly to electoral functions and that was the investment, of the members of the Electoral College with functions of local‑self government. Now, local‑self government connotes an extraction from among the plenitude of the powers of the Provincial Government, of certain powers at a suitably low level to be entrusted for exercise to the local representatives within their respective areas. The administration of the Province in all its branches is in its totality the responsibility of the Provincial Government. As an aid to the dissemination of democratic ideas and practics, there has been in vogue in the sub‑continent from the last quarter of the 19th century a process by which administrative responsibilities have been entrusted to subordinate bodies constituted under law, in the field of local‑self government. Such were the District Boards and Municipalities found all over Pakistan and in East Pakistan, the Local Boards and Local Unions established under the Bengal Village Self‑Government Act. It is significant to note that in the matter of division and distribution among subordinate officers and bodies, of its administrative functions, Provincial Governments do not appear to lie or ever to have lain under any legislative fetters or even guidance. Thus, the demarcation of Divisions or Districts is not known to be governed by any principles laid down under any law. Undoubtedly, when a case arises for creating new Commissioner's Divisions or new Districts (both such occasions have arisen in East Pakistan in recent years) the Provincial Government has not, to my knowledge, acted in that behalf in accordance with legislative instructions or guidance, although it assuredly would make extensive enquiries and consult local opinion in a compre hensive manner before taking any action. Equally, for demarcating the boundaries of a Thana, that is Police Station, the Provincial Government is expected to act on an examination of local conditions such as matters of population, public and administrative convenience and contiguity, but there is no legislative guidance laid down for performing this function. For the Legislature to provide in detail for the great number of considerations that would require to be scrutinised, balanced and harmonized on occasions when a new Thana or a new District or, much more so, a new Division has to be created, would seem to be impossible. I mention these administrative provisions, because in East Pakistan the Basic Democracies are organized in five tiers. At the lowest level are the Local Councils and the Town and Union Committees. The Chairmen of these Councils and Committees are ex‑officio members of their respective Thana Councils, which include also other members who are representative officials or nominated persons. Above the Thana Councils, there are the District Councils, and above the District Councils, Divisional Councils. All of these bodies operate in the field of local‑self government under the Basic Democracies Order, and are collectively referred to as Local Councils. It is a question of consideration whether legislative guidelines are really indispens able for marking out the smallest pockets of territory in which local representatives are to exercise powers of self‑government, when it is seen that no such guidelines have been thought necessary by Legislatures at any time, for demarcation of the territories in which the higher tiers of Local Councils are to operate. At first sight it would seen clear that it is really for the Provincial Government, which has long and wide experience of administrative matters throughout its territories, to decide what should be the size of a pocket of local‑self‑government at the primary level, in a particular region having regard to density of population and other questions such as contiguity and public and administrative convenience. The learned Chief Justice in his judgment under appeal has left no one in doubt that in his opinion, it is a legislative imperative, that is to say, it is obliged by the nature of the matter to be dealt with or the res as it mi ht be described, that the Legislature should "prescribe norms, standards, directives, policies in relation to any scheme" of the comprehensive type here in question. I have mentioned the Bengal Village Self‑Government Act of 1919 under which the Provincial Government was empowered to constitute unions which among the institutions of the past are the nearest in kind to the Union Councils here in question. By section 5 of this Act, the Provincial Government was empowered to constitute a new Union after consideration of the views of the District Board and the Local Boards, if any. In fact, since the year 1958, when they were abolished, there had been no District Boards or Local Boards in East Pakistan, so that if action were to be taken under the Bengal Village Self Government Act, 1919, in the year 1965, to implement Art. 158(4) in respect of Unions, it would have to be taken by the Provincial Government without consultation with any local re presentative body at all. That is to say, such action would have been in the unfettered discretion of the Provincial Government. Unions under the Act of 1919 were charged with powers of local government. Another similar example is to be found in the Bengal Local Self‑Government Act, 1885, in regard to the creation of Local Boards. The Provincial Government was empowered to establish a Local Board for a sub‑division of a district, or for a group of sub‑divisions. The law laid down no guidelines for the Provincial Government to follow in regard to such grouping. By section 38 of this Act, the Provincial Government was empowered to constitute any village or a group of villages as a Union, and also to prescribe the number of members of such Union. Again, no guidelines were provided. But, to ascertain what indeed is the legislative imperative in the present context, the most direct indications would naturally be found in the Basic Democracies Order. This Order passed in 1959 repealed all laws relating to subordinate representative bodies in local self‑government below the level of Municipalities. District Boards and Local Boards had already been abolished. It has been seen that Article 8 of the Basic Democracies Order, which empowered the Provincial Government to mark out local areas to be Unions and Towns respectively, required that officers should act in the prescribed manner, but in Article 2 of this same Order, there is a power given to the Provincial Government to except any similar area from the operation of all or any of its provisions, by reason of unsuit ability of such provisions for application in such area. Here no guidelines were provided. The Government was to act on its own judgment as to suitability or otherwise. By Article 37, the Provincial Government was given unguided powers to make an order at any time, and irrespective of anything else in the Order or any other law, by which an institution or service maintained by a Local Council would be transferred to the management and control of the Government or vice versa. Again, the Basic Democracies Order makes a clear distinction between urban areas and rural areas. The provisions relating to these areas are distinct, yet by definition a rural area is any area which is not an urban area, and an urban area, while its general meaning is confined to areas within the jurisdiction of a Municipality or a Cantonment Board, includes also "any other areas which the Government may by notification in the official Gazette declare to be an urban area for the purposes of the Order". Here, power is entirely unguided, except presumably by the requirement that in the exercise of the power anything approaching patent absurdity or non‑correspondence with visible facts should be avoided. Thus, in November 1959, the Provincial Government declared the area covered by the Bhera railway colony in the district of Mymensingh to be an urban area. Again, by definition in the Order a Thana means a Police Station, but it also includes "any area declared by the Government to be a Thana for the purposes of this Order". In exercise of this power, the Government made an order in January 1960, declaring each of the three sub‑divisions of the District of Chittagong Hill Tracts, which presumably include many more than one Police Station, to be a Thana for the purposes of the Order. In April 1960, three such Orders were made each combining two Thanas in a particular district into one for the purposes of the Order. These are direct examples of the exercise by the Provincial Government of a power given to it by the Order in completely uncontrolled terms, to demarcate the area within which a Local Council under the Order was to exercise its powers of local Government. If the attention be confined to the Basic Democracies Order and to the pre existing Acts, namely, the Bengal Local Self‑Government Act, 1885, the Bengal Village Self‑Government Act, 1919, the impression is unavoidable that where a Government delegates its powers down to a subordinate administration, legal provisions delimiting its power to define the territory for the exercise of the delegated functions are far to seek. In the course of arguments in these cases, reference was also made to the Bengal Village Chowkidara Act, 1870, where the District Magistrate is given by section 4, unguided power to declare any local area or any group of dwellings to be a village for the purposes of the Act. Presumably, a District Magistrate would not act, in such a matter on his own responsibility, and would seek approval of the Provincial Government, since administra tive power was to be delegated, but the absence of guidelines is sufficient, even from this aspect. The Legislature always appears to have acted on the basis that with its very wide and long continued experience of administrative problems, the Provincial Government could be trusted when, in aid of Self‑Government, it delegates its own administrative functions to local representa tive, to fix the area within which the delegated functions were to be exercised with due regard to the nature of the terrain, to the density of its population, and to considerations of general and administrative convenience. What it was necessary for the Legislature to prescribe when it was empowering Commissioners directly was wholly unnecessary in relation to the Provincial Government itself, and it would indeed have been extraordinary to find that whereas in the Basic Democracies Order, the empowerment of the Provincial Government was always in direct and absolute terms, yet when by legislative dictate of the National Assembly, carried out under the constitutional mandate of Article 158, the Provincial Government was being empowered to mark out the smallest areas of local Government for the primary units of Basic Democracies the necessity should have been felt of providing guidelines to control the Provincial Govern ment's actions. The instructions of the 27th January 1965 to which reference has been made above, show by their clarity and comprehensiveness, that the trust imposed in the Provincial Government by the terms of section 57 was well‑founded. And a point can also be made of the fact that for the National Assembly, to specify how the Provincial Government was to carry out so large and detailed an operation, lying entirely in its own exclusive executive field would be extraordinary indeed, if not ultra‑constitutional. In truth, the marks of a legislative imperative, such as has been conceived by the learned Chief Justice are indeed very far to seek. On the other hand, it is evident that in enacting section 57 of the Electoral College Act, the National Assembly was doing) no more than to include, in one of a set of statutes, which had to be passed in implementation of Chapter 2 of Part VII of the Constitution, express provision for carrying out the firm and) visible intention expressed in Article 158 (4). A number on observations have been made by the learned Chief Justice in his judgment concerning the nature of section

57. For their proper understanding, it is desirable that I should reproduce here the short passage from his judgment dealing with the background of this very extensive legislative and administrative exercise covering some of the highest operations of the State over the entire area of Pakistan. This is all that the learned Chief Justice had to say on this part of the case:‑ "It is useful to state the background of these petitions. In the year 1959 a revised system of local government was introduced, in a graded hierarchy, in order to constitute the `grass‑roots' of the political government of this country. At the base, elected bodies were formed which, together with higher gradations of graduated bodies, constituted the four tiers of `local councils,' generally known as such, in the concept of Basic Democracy. The basic tier, at the bottom, which supported the super‑structure of the rest of the three tiers, consists of, and are known as, Union Councils, Town or Union Committees and the other three tiers are called, Thana Councils, District Councils and Divisional Councils. These are, in their composite concept, known as `local councils' within the meaning of the order noticed above. With a view to prescribe a comprehensive and fairly exhaustive code for election and formation of such bodies and for conferment of functions of local government on them, the Order was promulgated in 1959." From what I have said already, it should be evident that a much more comprehensive statement of foregoing conditions was necessary for a proper understanding of the essentiality of section 57 in the Electoral College Act. The Basic Democracies Order, as has been said, swept aside all pre‑existing institutions and Boards of local government below the level of Municipalities, and introduced in their place an extremely thorough‑going system by which the entire Province was made into a honeycomb of small cells of local government, interlinking with each other so that with a very few exceptions, the entire area of the Province was covered by these small bodies known as Union Councils and Union and Town Com mittees. This was a change of the largest dimensions and of the most significant character and when the Basic Democrats were first elected there was nothing in the Order to indicate that their functions would include other duties than those of local government. As has been seen, one of the first acts which they were called upon to perform was to join in the Presidential referendum of February 1960, and thereafter they continued their function of local‑self government. By reason of the quality of their performance, or for other causes, in the formulation of this new Constitution, the President was pleased to give them the further function of electing the first National and Provincial Assemblies before the coming into full force of the Constitution. That duty performed, the Basic Democrats continued with their local duties, for a period of over three years before they were replaced by Members of the newly. constituted Electoral College. It is a reasonable inference that it was during the years of experience from 1960, onwards that the opinion was formed that a system of election of local representatives in small communities of 1000 population, to perform for an extended period (now five years) among their fellow‑men, the duties of local administration, was well designed to provide such a quality and degree of responsibility in such representatives, as rendered them suitable, in the eye of the Constitution‑maker, for one of the most responsible functions of the State, namely, to join in the election of the President as well as in the to the National and Provincial Assemblies. The fact that these persons were elected not only to be an Electoral College that was what by Article 229 they were deemed to be in relation to the first elections to the assemblies‑but also to stand before their fellow‑citizens in Union or Town areas as custodians of the public interest, and functionaries in local administration was, it seems, regarded as basic to their utility as Electors or members of the Electoral College. Viewed in that light, it will be seen that section 57 of the Electoral College Act was not a mere irrelevant or alien provision in a statute which along with the other two statutes mentioned above, was designed for implementation of the new system of representation which was being introduced to fill the offices of Chief Executive and the principal legislators. The learned Chief Justice has in a considerable number of places in his lengthy judgment indicated that the view he had formed was almost precisely to the opposite effect. He speaks of section 57 as standing "isolated as a solitary section" in an Act "which is obviously and patently another kind of legislation." This section is described as being "lodged amidst strange bed fellows" and to emphasise this further, it has been asserted that between the duties of local government and the discharge of election functions there is no nexus beyond the mere fact of membership of the Electoral College. In one place, the learned Chief Justice has observed that the Electoral College is a con stitutional body " to which the Constitution itself has specifically assigned only functions of elections". That observation, it is to be said with due respect, ignores the plain language of Article 158 (4) and overlooks entirely the whole of the back ground by which the possession of functions of local government appears visibly to have been prescribed as a necessary and concurrent qualification for the conferment of the electoral responsibilities, It is by that light that the learned Chief Justice was finally led to the conclusion that section 57 was not only enacted in contravention of what he has described as the legislative imperative applicable to delegation of functions of local government, but also that it was a legislative misfit. And the learned Chief Justice has further held on a consideration of the relevant Articles in the Constitution, namely, Articles 131, 132 and 133, that the Central Legislature had no power to make law such as that contained in section 57 of the Electoral College Act. On the point of vires, the view taken by the earlier Special Bench was that power to make the law contained in section 57 was derivable in favour of the National Assembly with reference to item 49 in the Third Schedule read with item

35. Item 49 reads as follows:‑ "Matters incidental or ancillary to any matter enumerated in this Schedule." It has already been seen that item 35 relates to elections to the office of the President and to the three Assemblies. The learned Chief Justice in the judgment under appeal has overruled this view by a single rhetorical question, viz: "How can `local government' be a matter incidental to election" and has gone on to observe that between two matters there is no nexus whatsoever. It may be agreed that the expressions `incidental' and 'ancillary' are indicative of things of lesser o or subordinate degree or of consequential nature. But in the views I have taken above, not only is the requirement in Article 158 (4) not of lesser or subordinate degree or of consequential nature, but it seems to prescribe, as an essential qualification of a person who has become a member of the Electoral College, that so long as he holds that office, he shall also concurrently perform functions of local government. Therefore, while on the one hand the view taken by the Special Bench would seem to minimise the importance placed on the concurrent performance of functions of local government by members of the Electoral College, that of the learned Chief Justice appears, speaking with due respect, to proceed on complete disregard of the entire background of this provision and ignores altogether the real basis of this constitutional requirement. If the matter had been looked at in the light indicated in this judgment, it would have been seen that the essentiality of section 57 falls rather within section 48 of the Third Schedule reading as follows viz:-- "Matters which under this Constitution are within the legis lative competence of the Central Legislature or relate to the Centre." As has been seen, the entire business, a very large res as has been stated already, of providing for the constitution of the Electoral College and thereafter for the election of the President and of the three Assemblies was a matter entrusted directly to the National Assembly, which it undertook in the year 1964, and passed the three principal statutes, namely, the Electoral College Act, the National and Provincial Assemblies (Elections) Act and the Presidential Election Act. These Acts were passed in performance of the duty cast upon the National Assembly by Chapter 2, Part VII of the Constitution, and therefore even at first sight, it would appear that to provide for functions of local government to be conferred upon the Electoral College, as required by Article 158 (4) which falls in that Chapter, was also a matter within the legislative competence of the Central Legislature, by intention of the Constitution. As has been seen, in one most important respect, namely, the order of priority in which these functions were to be performed, section 57 expressly states the will of the Legislature, namely, that the members of the Electoral College should be charged with functions of local government after they had performed their electoral duty. This was a matter not of Provincial impor tance, but of importance to the country as a whole, and it was entirely proper that it should be dealt with by the National Assembly. Another reason why the National Assembly may have rightly felt obliged to legislate for the implementation of Article 158 (4) may be found in the wording of that Article itself. While it directs in mandatory terms that members of the Electoral College were to have other functions under law besides their electoral duty, the reference to functions in relation to matters of local government is couched in less definite terms, i.e., that "provision may be made by law for conferring on members of the Electoral College functions in relation to matters of local government." Now, if the matter be looked at only from the point of view that the conferment of such functions was a matter within the jurisdiction of the Provincial Legislatures primarily, there might well have been entertained more than one view whether the expression "provision may be made by law" should be understood in less than a manda tory sense, leaving it as a matter of option to the Provincial Legislatures, whether or not they would invest the members of the Electoral College with functions of local government. On the other hand, the duty of providing for an Electoral College for the conduct of the elections in question is placed upon the National Assembly and such a matter of importance as that the Members of the Electoral College should, as a matter of concurrent qualification, also have duties .of local government could not be left by the National Assembly and therefore should not be " understood to have been intended to be left to be provided for by the two Provincial Assemblies, which in their law‑making power are not controlled by the National Assembly in any way. A further reason thus appears why it was incumbent upon the National Assembly, an upon that Assembly alone, to make the provision in question and it did so by an enacting section 57 of the Electoral College Act. Therefore, it seems to me that on a true appreciation of the entirety of the constitutional provision relating to the Electoral College, it must be held that the task of making law for obliging conferment of functions of local government on the members of the Electoral College was one that the Constitution intended should be performed by the National Assembly. On the wording of Article 158 (4), it is possible to argue that the National Assembly being charged with the implementation of the provisions of this sub section may have felt free either to provide for conferment of powers of local government or not to do so. But in the view that I have taken, resting upon the developments by which the system of indirect elections was made operative by the Constitution of 1962 throughout the country under the Basic Democracies Order, I entertain no doubt that in con struing the reference to functions of local government in Article 158 (4) as being of obligatory nature, the National Assembly understood that constitutional provision rightly. In the field of political experimentation, it was a new concept that the men of the Electoral College should not only be chosen for supposed capacity to render public service at basic level, but should also be required to engage in public service throughout the period of their incumbency. That concept had to be realised. If, then section 57 relates to a matter which by the wording of the Constitution was placed within the legislative competence of the Central Legislature, then indeed it becomes unnecessary to consider whether it is or it is not within the special terms of Article

131. It is desirable, however, that I should state my view on this point, since it has been discussed at considerable length in the judgment under appeal. The learned Chief Justice has expressed the view that, on the wording of Article 131 which relates to "Central law‑making powers" it is not possible to say that "the Central Legislature cannot in any circumstances legislate in respect of an item not enumerated in the Third Schedule" and there is "no inherent in competency to legislate in a field outside the Third Schedule." I am in respectful agreement with that interpretation. But the learned Chief Justice has then gone on to say that if the Central Legislature legislates on a matter outside those enumerated in the Third Schedule and not falling within sub sections (3), (4) and (5) of Article 131, it can only do so in circumstances mentioned in subsection (2) of that Article, that is, where in the national interest of Pakistan, it is necessary so to legislate to secure the following objectives, viz.: "(a) the security of Pakistan, including the economic and financial stability of Pakistan; (b) Planning or co‑ordination; or (c) the achievement of uniformity in respect of any matter in different parts of Pakistan." Further, in order to gain power to legislate under this sub section, it is necessary that the Central Legislature should make a positive and express election that it "must pre‑empt to remove the subject‑matter to its exclusive legislative field." What is more, in the view of the learned Chief Justice, once an election of this kind has been made, the subject is removed into the exclusive legislative field of the Centre so that the Province is deprived thereafter of power to legislate in that field. It is on this basis that the learned Chief Justice has found it inexplicable that the Province of East Pakistan should legislate by Ordinance dated the 2nd October 1965 to amend the Basic Democracies Order, after the National Assembly had passed Act No. 16 of 1965 which also extensively amended the Basic Democracies Order and came into operation by assent of the President on the 12th August 1965. In enacting the last‑mentioned Act, the National Assembly had expressly declared that the amendments were being made in the national interest of Pakistan for the sake of uniformity, and, with reference to the later Provincial amendment, the learned Chief Justice posed the question "where is the uniformity claimed by the Central Legislature?" On this point, the earlier Special Bench had declined to pronounce, relying upon subsection (2) of Article 133 which provides that "The validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law," In the judgment of Sattar, J., in the present cases, as well as in the judgment of the learned Chief Justice and the two learned Judges who agreed with him, this subsection is con sidered and references are made extensively to observations made in the judgments of members of this Court in the well known case of Fazlul Quader Chowdhury (P L D 1963 S C 486). Seemingly support is sought to be derived from various observations for each of the varying views taken in the judgments under appeal. Since I have come to the conclusion that the subject‑matter of section 57 is, on its true construction, to be regarded as a having been placed directly within the legislative competence of the Centre, it would be to some extent an academic exercise for me to attempt an exposition of the various Articles in the Constitution which make provision for the legislative competency of the Centre and of the Provinces respectively. I consider that Article 131 is not to be understood as placing the legislative competence of the Centre within a strait jacket constituted by its express terms. Subsection (1) of this Article states that matters in the Third Schedule are within the "ex clusive power" of the Central Legislature. It does not say that the power of the Central Legislature does not extend p beyond these matters. I draw that conclusion from the fact that Article 132 when it declares that a Provincial Legislature shall have power to make laws, but only for its own Province, and with respect to matters other than those enumerated in the Third Schedule, does not make that power exclusive. There is to be seen here a marked variation from the corresponding provisions in Chapter 1 of Part VI of the Constitution of 1956 where the exclusive power of Parliament (i.e., the National Assembly) is limited to matters enumerated in the Federal List in the Fifth Schedule and the Provincial Legis latures were given exclusive power to make laws with respect to matters not contained in that list (Article 109) as well as exclusive power to make laws in respect of matters enumerated in the Provincial List. There was in addition a Concurrent List of subjects on which the National as well as the Provincial Assemblies were empowered to make laws. There was thus in the Constitution of 1956 a far more closely defined demarcation of mutually exclusive powers between the Centre and the Provinces in the legislative field than is to be found in the present Constitution. The provisions of the 1956 Con situation follow closely those contained in Chapter 1 of Part V of the Government of India Act, 1935, where, however, the wording employed to express exclusiveness of power was slightly different. The mutual exclusiveness was expressed by the follow ing formula, viz.: "The Federal Legislature has and a Provincial Legislature has not power to make laws." with respect to enumerated matters in the Federal Legislative List and "The Provincial Legislature has and the Federal Legislature has not power to make laws for a Province" with respect to matters in the Provincial Legislative List. There was also provision for a concurrent Legislative List in which field all Legislatures could legislate. In the present Constitution, the exclusiveness is reserved to the Centre in respect of matters specified in the Third Schedule, but no exclusive legislative powers are reserved to the Provincial Legislatures. Although by subsection (2) of Article 131, the Central Legislature is empowered, where certain conditions exist to make laws in matters outside the Third Schedule, I do not construe this provision as requiring any express declaration to the effect that the Central Legislature is satisfied of the existence of one or more of the necessary conditions. By Article 133 (1), the "responsibility of deciding whether a Legislature has power under this Constitution to make a law is that of the Legislature itself." I conceive that the pre sumption of having acted responsibly thus raised sufficiently sustains the conclusion that, in making any law, the National Assembly has satisfied itself that it is within its legislative competence, by virtue of any necessary conditions being satisfied. No expression to that effect is necessary to give validity to such law. Moreover, no law of the National Assembly can be invalidated by repugnancy to any Provincial law, vide., Article 134, and the result must be that, in effect, the National Assembly is never under the apprehension of legislating ineffec tively in any field. Nevertheless, the National Assembly is to act with a sense of responsibility, bearing in mind the direc tions of the Constitution in respect of these extremely important matters. The opinion of the learned Chief Justice that by expression of an opinion under Article 131 (2), the subject in question is with drawn into the exclusive legislative field of the Centre is not, in my view, a tenable conclusion. Article 131 (3) provides that upon the passing of a proper resolution by a Provincial Legislature, the National Assembly has power to legislate for that Province in a field outside the Third Schedule, but as an exception to the operation of Article 134, such a law can later be amended or repealed by the Provincial Legislature. The mere fact that the Central Legislature once legislates on a certain subject does not render that subject reserved forever to the Central Legislature. 5 It remains within or without the Third Schedule, according to its nature. The learned Chief Justice's conclusion seems to me to allow the Central Legislature to defeat the division of legislative functions laid down in the Constitution by a mere act of legisla tion. In other words, by such act, the Constitution could be amended in a most essential respect. Such a result cannot, in my view, be allowed to be reached, on any reasonable interpretation of the Constitutional provisions. Speaking generally, the view I have formed of the intention underlying Articles 131 to 134 of the Constitution is that the validity of laws made by the various Legislatures is not to be tested by reference to power derived from these provisions, as a theoretical proposition. A law made in proper form is to be r accepted as a fact, and is to prevail, unless its operation is frus trated, by reference to one or snore of the accepted rules by which conflicts of laws, under a Federal Constitution, are to be resolved. There is, for instance, the rule of "pith and substance", which is applicable to the protection of an exclusive legislative power. Recourse could be had to this rule if a Provincial Legislature were to legislate substantively and directly on a subject reserved to the Centre by the Third Schedule, for the Centre's power is declared to be, in that field "exclusive". In such a case, there would be no occasion for application of the rule of the "occupied field".' But where the Centre has legislated on a subject outside the Third Schedule, a Provincial law on the same matter would risk invali dation for repugnancy, not only through being in an "occupied field", but also by reason (1) of the superiority conferred on Central legislation by Article 134, and (2) that no exclusive powers are reserved to the Provinces. A third rule is that which validates a law of a Legislature making incidental and necessary encroachments on the exclusive powers of another Legislature. I conceive that a law of a Province making such incidental and necessary encroachments into the exclusive legislative fields of the Centre could claim the benefit of this rule, unless the field were ` already occupied by a Central law. There are other rules of construction applicable to such conflicts between laws made by Legislatures with disparate and unequal jurisdictions, besides those mentioned above, which may also be called in aid. What I have had to say is to be understood to be said in support of my view that, within the meaning of the Constitution, the validity of any law properly made by a Legislature is not to be judged wholly by reference to the source of power to make that law, as indicated in the Constitution, but for the most part, by reference to other existing laws, and by application of well‑accepted rules by which conflicts between laws are to be resolved in a Federal Constitution. I say "for the most part" because I think respect must be given to the exclusive power of the Centre by reference to the Third Schedule, and, on this aspect, considerable interest centres round Article 142, to which reference has been made in some of the judgments under appeal. By Article 142, there is an express check placed upon the law‑making power of a Province with respect to Inter Provincial trade, as well as trade and commerce with countries outside Pakistan. Item 5 in the Third Schedule has the effect of reserving within the exclusive legislative power of the Centre, "trade and commerce between the Provinces and with other countries". A question may well be asked why, in view of this clear provision, it was necessary to enact such prohibitory provision? A Province which legislates to prohibit or restrict the entry into the Province of any goods or imposes discrimina tory taxes on goods made outside the Province, coming within the Province, would be legislating substantively and directly in the exclusive Central legislative field. I apprehend that Article 142, while it may be enacted ex majori cautela to prevent altogether all possibility of discriminatory legislation in the field of trade and commerce by one Province against another or against goods manufactured outside Pakistan and it may also have been intended to strengthen the authority of the Central Legislature in that particular field, has also the effect of excluding even incidental encroachments into this field, by a Province, however necessary they may be to the integrity of the statute in question. This article also makes it clear that a law made in contravention of iv provisions can be challenged through the Courts despite the provisions of Article 133 (2), on the ground of total absence of power. In that view, it may be understood as an exception to the latter Article, if it be understood in the sense I have indicated above. These are matters which could be more appropriately and with greater definition examined and pronounced upon in propel cases as they arise. In what I have said above, I must not be supposed to have dealt exhaustively with the construction of the pithy expressions in the relevant Articles of the Constitution. They are to apply over the whole range of possible legislation, and a comprehensive understanding of their true meaning can only be attained through the pragmatic process of application, with thoughtful care, to each new situation, in the legislative field, that comes under examination by the Courts. No question requiring to be resolved with reference to the provisions of Articles 131 to 134, excepting item No. 48 in the Third Schedule read with Article 131 (1), seems to me to arise in the present case, and as I have said already this statement of my views is made necessary only because of the extensive discussion applied to the question in the judgments under appeal. Having found that the subject‑matter of the legislation repre sented by section 57, when regarded against the background of the Basic Democracies Order and the larger background of the legislative technique employed since at least 1885 in giving power to the Provincial Government to delegate its functions of local administration in small pockets, is not such that it was imperative for the National Assembly to lay down principles, policies or norms according to which the Provincial Government should act in making the delegation, it becomes therefore unnecessary for me to examine at length the validity of the numerous observations contained in the judgment of the learned Chief Justice concerning "excessive delegations" of power by the National Assembly to an executive authority. The learned Chief Justice has construed section 57 as if it amounted to the National Assembly saying "I authorise an extraneous authority to do all that is required" or "I remove myself and bring in some body else for the purpose of doing everything which is required". In fact, what was being done was to charge an authority much higher than a Commis sioner, namely, the Provincial Government itself, to constitute Unions or Towns, within which its own powers, as the Provincial Government, would be exercised by the Union Councils and the Union and Town Committees. It is important to remember here that there was a precise provision in the Basic Democracies Order to the effect that the Provincial Government could withdraw powers from the Local Councils at will and equally, could invest them with powers, vide., Article

17. It could also, vide., Article 10‑A of the Order, now to be read with section 57, and Article 10‑B, divide Unions, or combine Unions, or alter the boundaries of Unions, free of all guidelines settled by these provi sions. It has been seen that legislative practice for a great many, years and in many fields has not required that when a Provincial) Government so delegates its authority and marks out pockets within which its subordinate administrative institutions should operate, it is to be provided with guidelines. The underlying, assumption seems to be that in the field of administration and, in particular, in the delegation of administrative functions which a Government itself exercises with efficiency and success, it can be trusted to see that no more power is delegated at any particu lar level or in any particular pocket than can be usefully and competently exercised by the delegate. Therefore, the legislative imperative being lacking there appears to me to be no question here of the Legislature abdicating any function properly belong in to it in the context and equally, the concept of excessive delega tion is seen to be irrelevant. While on this subject, it may be of advantage that I should state my view that the rule of "excessive delegation" which is derived from judge‑made law in a foreign jurisdiction, viz., the United States, and which is in process of losing much of its authority, even in that jurisdiction, must be applied in a country such as ours with the greatest circumspection. Laws of our Legislatures are made in continuation of pre‑existing Laws dating from the early nineteenth century, and are based on past administrative practice which is of even greater age. The Constitution contains a specific provision in Article 6, as to what laws are to be regarded as void, in their essence, for violation of principles and purposes which are delineated with particularity in the exhaustive statement of Fundamental Rights contained in Part I. Where the Constitution condones limitation on those rights, it requires that this should be by law, and that the restric tions should be reasonable, thereby bringing them into the field of judicial review. Such provisions are made, e.g., with reference to the Rights of Freedom of movement, assembly, association and speech. It is possible to test the validity of a law, in its essence, against the expressions used in Part II, and it is possible also to examine the nature of particular actions taken, in relation to those expressions, by reference to Article 2 of the Constitution, which affirms the right of every citizen and every person in Pakistan to "be treated in accordance with law, and only in accordance with law". The rule of "excessive delegation" which has been called) in aid for avoiding the law of section 57, is not within the meaning of any of the Fundamental Rights, as applied to the present cases. If at all it was to be applied, it should have been applied after the fullest consideration of the entire administrative and Legisla tive complex, not only as it exists after the making of the law in question, but with reference to the immediately preceding conditions,, and in relation to the technique employed, with reference to the established practice in the relevant respect over a long period of years. There are probably, on the statute‑book, a great number of similar laws empowering the Provincial Governments, and other administrative bodies, to take actions in specified circumstances, but which provide no norms or guidelines, such as are envisaged by the learned Chief Justice. It cannot be accepted that all such laws are rendered subject to avoidance by reference to the rule of "excessive delegation". So to contend would be to emend the Constitution by adding a new principle on which all laws, whether new or old, would be placed in jeopardy at the hands of the Courts. My own inclination is to maintain the constitutional restriction on the avoidance of laws properly made, i. e., to confine such avoidance to ‑ cases where there has been violation of Article 6, and where "excessive delegation" is pleaded, to require it to be established that thereby there has been a defeat of the requirement of "reasonable restriction" in relation to the exercise of a Fundamental Right, which is expressed, in the relevant respect, in qualified terms. The learned Chief Justice has then found that the amendments made in the Basic Democracies Order by the Central Act XVI of 1965 which purports in part to accommodate within the Order, action which the Provincial Government was enjoined to take by section 57, are not valid to produce the necessary result. In his view, the Union Councils and Union/Town Committees, for which detailed provision is made in respect of their functions of local government in the Order, are still the same Councils and Committees constituted as provided by the Order originally, and not those constituted afresh under section

57. Certain expressions used by the learned Chief Justice in his extensive discussion of this subject may be reproduced here to indicate the view which appealed to him. He described the Councils and Committees mentioned above as "seminal bodies, products of legal policies and rules" and observed that these had by operation of section 57 been substituted by "totally different bodies created by a mere executive fiat". In his view, the Basic Democracies Amendment Act, Central Act XVI of 1965, was a mere device to make the abdication (by section 57) complete, and he has used the following phrase in this context:‑ "The main task is to create a strait jacket under section 57 of the Act." In common understanding, a strait jacket represents a surround rather than a support, and with due respect, the meaning of this sentence seems far from clear. He has characterised the Amendment Act XVI of 1965 as a "compound brewed in the cauldron of an executive and legislative misalliance" in which the main ingredient is "the concoction of bodies which would replace the Union Councils, Union and Town Committees constituted by the Order under comprehensive provisions of law." Observing that the Amendment Act XVI of 1965 "does not even pretend to expressly confer functions of local government on the Electoral College," the learned Chief Justice has presented his view of the effect of that Act in the following sentence:‑ "It is sought to achieve that end by changing the labels of some of the carriages in a train which was designed to carry other kinds of wagons." The Amendment Act XVI of 1965, in the view of the learned Chief Justice was a "mere fitter" to fit into the "round holes of the Order the square pegs arbitrarily forged by the Provincial Government under section 57". These are strong expressions, and one would expect to find on examination of the effect produced in the Order by the Amendment Act XVI of 1965 that there had been some glaring mechanical misfits. What is found is indeed very different. The Amending Act XVI of 1965 is directly connected with the issue of notifications under section 57 by the provision in section 1, subsection (2) that it was to come into force on the date "specified in the notification under clause (b) of section 57 of the Electoral College Act, 1964," constituting the Union Councils, Town Committees and Union Committees under that Act. Since section 57 obliged the two Provincial Governments to declare by notification that the members of the Electoral College in a Union shall, from a date specified in the notification, constitute the Union Council or the Town or Union Committee, it is evident from the terms of section 1(2) of the amending Act of 1965, that the two Provincial Governments were required to issue their notifications on the same date, for otherwise the Act could not come into force in the whole of Pakistan on the same date. That is a further indication of the assumption by the National Assembly of the whole duty cast upon it by Chapter 2 of Part VII of the Constitution, including the important duty specified in Article 158 (4), which confirms the conclusion that the legislation represented by section 57 is one which by the Constitution was required to be undertaken by the National Assembly. With reference to Towns and Unions, the Amending Act XVI of 1965 directed that these expressions should from the date of the notifications issued under section 57 (b) be applied to Towns and Unions as arranged under section 57 (a) and the Union Councils and Union and Town Committees should henceforth be such Councils and Committees constituted under clause (b) of that section. Various other small changes were made to ensure that references to Unions and Towns as arranged under the Order and to Union Councils and Town Committees as constituted under the Order should be replaced by references to corresponding actions taken under section 57 or, where it was more convenient, should be omitted altogether. The provisions in Article 8 empowering the Commissioner to demarcate the areas of Towns and Unions were omitted. Article 9 in its original form enumerated various forms of Local Councils from a Union Council up to a Divisional Council and this Article was amended by excluding the reference to the requirement that these Councils should be constituted under the Order. There was a significant change in Article 10‑A, which enabled the Provincial Government to divide a Local Council into two or more Local Councils or to amalgamate two or more Local Councils into one Council or to alter the limits of any Local Council. This Article was amended by adding an explanation, namely, that the expression "Local Council" as used therein should not include a Union Council or a Town or Union Committee. This was obviously done with the object of reserving the power of the Provincial Government in this respect to be exercised under section

57. The purpose was made more clear by a subsequent amendment of the Order by East Pakistan Ordinance No. IV of 1965, adding a new Article, viz., 10‑B which provides for certain consequential matters following upon division of Union into two or more Unions, or amalgamation of two or more Unions into one Union or alteration of the limits of a Town or Union "as a result of arrangement of the Electoral Units into groups under clause (a) of section 57," Articles 11 and 12 providing inter alia for fixation of the number of elected members in Union Councils and Town and Union Committees were amended so as to omit these provisions, but subsection (5) in each Article, requiring that these bodies should elect their Chairmen in the prescribed manner, was retained. One of the definitions in Article 3, namely, clause 24 which defines a Local Council as "a Council constituted under this Order" was left un amended, and from this circumstance, the learned Chief Justice has drawn the conclusion that the expression "Local Council," wherever it occurs, necessarily continues to have reference to Councils and Town and Union Committees, besides other Local Councils constituted under the Order, and has consequently held Articles 27 to 31 of the Order, which define the functions of the Local Councils in respect of administration, to be inapplicable to Union Councils and Town and Union Committees constituted under section

57. Now, a reference to Articles 27 to 31 will show that the entrustment of functions is not to Local Councils generally, but to particular Councils and Committees by designation. Thus, Article 24 defines not the civic functions of Local Councils, but the civic functions of Union Councils and similarly Article 28 defines the police and defence functions of Union Councils. Article 29 defines the duties of Chairmen of Union Councils in regard to revenue and general administrative functions, and Article 30 lays down responsibilities of Union Councils for work in the field of agricultural industry and community development. Article 31 provides for the performance by a Town Committee or a Union Committee of such functions as may be prescribed, and empowers these Committees to adopt such measures as may be necessary with the previous sanction of the Government for the purpose of national reconstruction, social uplift, family planning and promotion of civic consciousness. This Article also empowers the Government to invest Town or Union Committees with functions prescribed for Union Councils or for Municipalities or for Cantonment Boards. Article 31‑A, an addition of 1962, again refers specifically to Union Councils and Town and Union Committees. Therefore, it is plain that the omission to amend the definition of "Local Council" does not in any way affect the operative character of Articles 27 to 31‑A in the field of confer ment of administrative functions on Union Councils and Town and Union Committees, which by virtue of the altered definitions in Article 3 were to be understood from the 16th August 1965 onwards, to mean such Councils and Committees constituted under the Electoral College Act. The opposite view, maintained with some firmness, by the learned Chief Justice appears, speaking with due respect, to be one which is not in accord with the existing facts of the legislative processes which were carried out. It might appear to some minds that the amendments may have been carried out more suitably in some other form, e. g., rather than enact section 57, the National Assembly may well have made necessary alteration directly in the Basic Democracies Order. But, the mere injection of bodies constituted under one law into the fabric of another law for the performance of functions laid down in such other law, is not a technique unknown to modern legislation, and when it is practised, it must be given its due effect according to the recognised principles of statutory construction. As has been noted already by the effect of Article 229 of the Constitution itself, persons who were elected under the Basic Democracies Order, seemingly only for the purpose of discharging administrative functions at primary level, were injected into the machinery of the Constitution by being deemed to be the Electoral College for the first elections to the National and Provincial Assemblies. Be section 88 of the Electoral College Act, the provisions of the Act were given effect notwithstanding any thing to the contrary in any other law, e.g., in the Basic Democracies Order, which, after the 8th June 1962, had effect as a law of the Central Legislature, and for this reason, as well as by reason of its superior faculty of legislation, the authority of the Central Legislature to repeal provisions contained in the Order and to replace them by other provisions is not open to question Therefore, the mere fact that bodies created under section 57 were being injected into the Basic .Democracies Order by operation of express statutory law is not such a matter as to attract the strong condemnation of being "a compound brewed in the cauldron of an executive and legislative misalliance". The implications behind these forceful words are far‑reaching, and are totally devoid of all support from anything appearing in the record of the case. The East Pakistan Union Councils and Town‑ and Union Committees (Election of Chairmen) Rules, 1965, have been held by the learned Chief Justice to be ultra vires on two grounds. Firstly, the learned Chief Justice has referred to Article 89 of the Order which empowers the Provincial Govern ment to make rules to carry out the purposes of the Order, and has construed this provision to mean that the rules may carry out only those objectives which the Order itself provided for. After the amending Act XVI of 1965, only the Thana, District and Divisional Councils were constituted under the Order, but Union Councils and Union and Town Committees were in actual fact and under law constituted under section

57. Therefore, provision for those alien bodies, as the learned Chief Justice has regarded them, could not possibly be made under the power given by Article 89 to make Rules "to carry out the purposes of the Order". This argument is in line with the earlier view expressed by the learned Chief Justice, viz., that the Union Councils and Town and Union Committees constituted under section 57 were to be regarded as elements foreign to the scheme of the Basic Democracies Order and were not to be recognised for any purpose of that Order. It has been seen above that that view cannot be maintained, if regard be had to the duty of the Courts to enforce the laws as they are ill enacted by the Legislature, and following the recognised principles of statutory construction. In elaboration of this point, the learned Chief Justice has referred to the fact that in Articles 11 and 12 of the Basic Democracies Order, the first subsections which provided for the number of elected members of Union Councils and Town and Union Committees bad been repealed. From this circumstance, the conclusion was drawn that Union Councils and Town and Union Committees did not "require to be constituted any longer under the Order" and it was further concluded that the "question of electing Chairmen of the aforesaid bodies under the Basic Democracies Order does not arise at all. It is quite evident that the repeal of sub section (1) in each of Articles 11 and 12 of Basic Democracies Order was made, so that there should be no doubt that Union Councils and Town and Union Committees were henceforth, that is from the 16th August 1965, to be such Councils and Committees as were constituted under section

57. The finding of complete alienation between the Basic Democracies Order on the one hand and once the other, the Councils and Committees aforesaid as created under section 57 which is entirely contrary to the result plainly produced by the amendments carried out, appears to me, and say so with due respect, to be based on nothing more solid than sentiment. The learned Chief Justice has further referred to the fact that by the amending Act XVI of 1965, item 3 in the sixth Schedule of the Basic Democracies Order relating to election of Chairman has been repealed, and from this the con clusion has been drawn that no rules can be framed under that item and further that this item has been omitted because it had become redundant. The argument was accepted that this item had been "purposely repealed because in respect of the members of the Electoral College, upon which functions of local Govern ment are to be assigned, under clause (4) of Article 158 of the; Constitution, the election of a Chairman in respect of such group must be made by provisions of law," i.e., not by a mere statutory rule. That argument is obviously untenable, because a statutory rule has effect as law and the expression "law in the context of the present cases must be understood to include statutory rules. But with reference to the omission of item of the Schedule it falls to be observed that by Article 89 of Basic Democracies Order the power of making rules was clearly expressed to extend beyond the specific matters mentioned in the sixth Schedule. It has already been seen that by subsection (5) in each of Articles 11 and 12 of the Basic Democracies Order, Union Councils and Town and Union Committees were required to elect one of their members as their Chairman "in the prescribed manner". Reference to the Sixth Schedule of the Order will show that item 25 therein reads as follows:‑ "any other matter required under the provisions of this Order to be prescribed." There are thus several sources of power available for the making of Rules for the election of Chairmen so that the mere omission of item 3 in the Sixth Schedule whether it be by oversight or by intent, cannot operate to take away all powers to make Rules for the election of Chairmen of the respective bodies in question. Thus, on a full examination of all questions arising in these difficult and important cases, I have come to the result that none of the conclusions reached by the learned Chief Justice upon which he has found it possible to issue writs to avoid the whole of a vast administrative operation carried out under the law, can be sustained in reason, or on proper legal principles. I may here with advantage repeat what I have said at the outset of this judgment that in approaching a question as to whether in an administrative context action has been taken within lawful authority, the background of the affair under examination, ands the entire history of the earlier administrative arrangements and the laws on which they were based, should be fully digested before coming to a conclusion that there has been violation of legal limitations upon the exercise of public power. In the present case a single section in an elaborate statute has been brought under examination by the learned Judges not only of the Full Bench, but also of the Special Bench which considered the matter earlier, almost by itself, and in narrow perspective with a limited number of Articles of the Constitution and in the Basic Democracies Order. For a true appreciation of the case and the function performed by the Central Legislature in respect of the first regular elections to the office of President and to the National and Provincial Assemblies, it was necessary to com mence with examination of the radically new system which was introduced in the field of local government by the Basic Demo cracies Order and the employment of the local representatives elected under that Order as an Electoral College for the purpose of the referendum of February 1960 and of the first elections in April and May 1962. If that had been done the necessity for the new method of demarcation of Unions and Towns may have been better appreciated. As a result of viewing the matter in too narrow a light, an order has been made by the Full Bench whose effect is to break down to nothing a detailed and thorough going administrative exercise in local self‑government covering the entire Province of East Pakistan, in the manner of a honey comb. It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim ut res magis valeat, quam pereal, that is to say, that the affair should prosper rather than be brought to destruction. It may be that the maxim that was borne in mind was rather fiat justitia ruat coelum, that is to say let justice prevail though the heavens should fall. But this is not a case of dispensation of justice in the general sense, for the learned Chief Justice himself in his judgment has observed as follows, with respect to the question of mala fides, which meant no more than political motivation, that was raised before him:‑ "I am not, in this case, concerned with the third point, namely, whether alterations in the formation of Union Councils, Union and Town Committees, are in mala fide. If there are any such allegations in these petitions, which are under our consideration, there is hardly any evidence upon which such a question can even be examined by us." The inference may be drawn from this observation that no sense of any injustice having been done anywhere in the whole com plex, was carried by the learned Chief Justice. It has already been noted in this judgment in how small a number out of over 4,300 Unions and Towns that are affected by the judgment of the Full Bench, allegations have been made of inconvenient variations in the demarcation of the new Unions and Towns. What is involved here, indeed, is a conflict of opinion regarding the fundamentals of legislation between the relevant Legislature, namely, the National Assembly and a Superior Court. The observation I have to make on this aspect is that where the Court intends to find a Legislature of the country at fault and proposes to undo what the Legislature has ordered to be done, particularly in a matter of such high importance with direct impact upon the entire country, as in this case, the Court should make very sure of its ground by practising extreme thoroughness in exami ning the full background of the whole matter, and after that has been done to bear in mind in reaching its decision that the duty is so to act that the matter should be advanced, rather than it should be brought to an end. There remains one further matter, of no little importance, for consideration, namely whether it was in order for the Full Bench in this case to disregard the conclusions reached by the earlier Special Bench, on several of the questions of law on which the Full Bench has made pronouncements to the contrary effect. In a recent case decided on appeal from the High Court of East Pakistan, i.e., East Pakistan Province v. Dr. Aziz‑ul‑Islam (P L D 1963 S C 290), this Court indicated that where a Division Bench of the High Court is inclined to take a different view from that declared in an earlier judgment of a similar Division Bench, one course open to the Court was to "have expressed their doubts regarding the view taken in the precedent case, in a Court of co‑equal jurisdiction, while yet following that view, and left the matter to be raised in appeal before this Court". The alternative course, under the Rules of the Court, was to refer the matter to a larger Bench. A decision by a Bench of three Judges of a High Court is, by tradition and practice, invested with the highest authority. It is in the best interest of maintenance of the standing which the High Court possesses, by virtue of the position given to it by the Constitution, and the terms of the Letters Patent under which it functions, as well as its status, in the public eye, as a source of law, that the highest respect should be paid, and should be seen to be paid, by all concerned, to every decision proceeding from the High Court, and most of all to pronouncements on points of law by Benches composed of three or more Judges. It would have been more pleasing to find, in the judgment under appeal, some words to indicate that the need to reconsider the conclusions reached by the Special Bench had been felt in the course or after hearing arguments, and thereafter, a Bench of five Judges had been constituted for fuller examination of the questions arising. But, indeed, it cannot conduce to maintenance of the integrity of the High Court as a single source of law, or indeed, to harmony in the performance of their difficult duties by the Judges thereof, if overruling of a pronouncement on a point of law by a Full Bench were to become a mere matter of preponder ance of numbers in favour of the over‑ruling Bench. By clause 36 of the Letters patent of the High Court of East Pakistan, it provided that "any function to be performed by the High Court‑in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof, appointed or constituted for such purpose". The meaning plainly is that a decision given by a Single Judge or a Division Court possesses the full force of a decision of the High Court, and is subject only to modification or correction by proper appeal to the Supreme Court, except in the few cases where provision is made by the Letters Patent for an appeal or other mode of variation within the High Court in which case the later decision would possess the full force of a decision by the High Court, and would be amenable to appeal to this Court. Whether clause 36 of the Letters Patent can be thought to accommodate a system by which, on points of law, the High Court may over‑rule a decision already given, with the high authority possessed by a Full Bench, by the constitution of a larger Bench to reconsider that decision may perhaps now, have become a matter of practice. But, since the further appeal from such a decision now lies much closer at hand than it did H when the letters Paten were granted and the Rules were framed, at which time the only recourse was to the Judicial Committee of the Privy Council sitting in London, it becomes a matter for consideration whether the High Court, in the capacity of an Appellate Court and yet not the final Court of Appeal, should not adopt a procedure, in this important respect, which does not have, the appearance of rendering any decision of, say, a Full Bench, appealable within the High Court to a larger Bench. The question has been considered in detail, by the Court of Appeal in England. The Court of Appeal is a branch of the Supreme Court of Judicature, with the House of Lords at the apex, as the final Court of Appeal. It was pronounced upon in the case of Young v. Bristol Aero plane Co. (LR(1944)IKB718). The case was heard by all the Lords Justices, for the reason reproduced below:‑ "The question thus raised as to the jurisdiction of the Court to refuse to follow decisions of its own was obviously one of great general importance and directions were given for the appeal to be argued before the Full Court." That question was raised before a Division Court of three Lords Justices in the first instance. The following statement of the jurisdiction of the Court of Appeal, and its component Divisions, taken from the judgment, will indicate the closeness of the parallel with the corresponding provision in clause 36 of the Letters Patent already quoted above:‑ "The Court of Appeal is a creature of statute and its powers are statutory. It is one court though it usually sits in two or three divisions. Each division has co‑ordinate jurisdiction, but the full court has no greater powers or jurisdiction than any division of the court. Its jurisdiction is mainly appellate, but it has some original jurisdiction. To some extent its decisions are final (for example, in appeals in county courts), but in the majority of cases there is an appeal from its decisions to the House of Lords either with the leave of the Court of Appeal or of the House of Lords. Neither in the statute itself nor (save in two cases mentioned hereafter) in decided cases is there any suggestion that the powers of the Court of Appeal sitting with six or nine or more members are greater than those which it possesses when sitting as a division with three members. In this respect, although we are unable to agree with certain views expressed by Greer, L. J. In re Sheosmith (1938) 2 K B 637, 644 as will presently appear, we think that he was right in saying that what can be done by a full court can equally well be done by a division of the court. The corollary of this is, we think, clearly true, namely, that what cannot be done by a Division of the Court cannot be done by the Full Court." There had been earlier occasions when the Court of Appeal, sitting in Full Court, had differed from a previous decision by a Division Court, and these were considered in detail in the judgment, which proceeds to lay down that `the court is bound to follow previous decisions of its own,' subject to certain exceptions, formulated as below: "The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarize: (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam." It cannot be denied that these limitations are of the highest value not only for maintaining the place and authority of the Court of Appeal as a source of law, but also for ensuring that, in the performance of its functions, it should remain what it was intended to be, namely "one Court". They were approved in the House of Lords, by Viscount Simon, LC in the following words "One of the conclusions reached in the judgment of the Master of the Rolls, with which I agree, is that if the Court of Appeal, when sitting in one of its Divisions, has in a previous case pronounced on a point of law which necessarily covers a later case coming before the court, the previous decision must be followed (unless, of course, it was given per incuriam or unless the House of Lords has in the meantime decided that the law is otherwise), and that this application of the rules governing the use of precedents binds the full Court of Appeal no less than a Division of the court as usually constituted." Young v. Bristol Aeroplane Co., L R (1946) A C 1963 (H. L.) It would, in my view, have conduced very greatly towards the same result, viz., securing (1) that the High Court functioned as one Court. (2) that no appearance was given of an appeal being always available within the High Court, by constitution of a larger Bench to re‑consider the law laid down by an earlier Full Bench, (3) that due respect was paid to a decision by a Full Bench of three Judges, and (4) that being charged with the high function of interpreting and pronouncing upon the validity of laws, and being thus itself a source of law, the High Court should avoid giving a decision directly inconsistent with that given by itself earlier, I and thus speaking with two voices on a point of law, where no question arose of resolving inconsistency between two or more earlier decisions, If in the present case, the direction given by this Court, in the case already cited, East Pakistan Province v. Dr. Aziz‑ul‑lslam, had been followed, namely, that after having expressed such doubts as he felt concerning the correctness of the law declared by the earlier Special Bench, the learned Chief Justice and the three learned Judges who agreed with him, had decided the cases in accordance with the earlier authority. For the reasons already given, I would allow all these appeals and direct that the writs issued by the High Court should all be recalled. I have to add that I have read the judgment prepared for delivery in this case by my learned brother Muhammad Yaqub Ali, J, who has agreed that the appeals should be allowed. The reasoning in my learned brother's judgment proceeds on different lines from my own, and 1 think it is right that I should say, with due respect, that 1 am not able to support without qualifications a number of the conclusions which he has reached. S. A. RAHMAN, J.‑‑I ,,have had the advantage of seeing in advance the judgment proposed to be delivered in this case by my Lord, the Chief Justice. I fully concur in the conclusion reached by him and agree generally with the reasoning by which it is supported. No question of excessive delegation of legislative power can arise in this case, if the provisions of section 57 of the Electoral College Act are viewed in their proper perspective. I wish to add, however, that I do not find it necessary for the purpose of these cases to define the exact scope of Arts. 131‑133 of the Constitution and would leave that question to be dealt with on a more appropriate occasion. It was not a requirement of the Constitution that the Central Government, while legislating on a subject not included in the Third Schedule, should have made a formal declaration of its opinion that it was necessary to undertake such legislation, in the interests of achieving uniformity in respect of the matter, in different parts of Pakistan, within the meaning of sub‑clause (c) of clause (2) of Article