P L D 1957 Dacca 342 (PLP)

ISPAHANI, J. ‑

The petitioner before us is Mr. A. K. NM. Fazlul Quader Chowdhury, who has filed this petition for a Writ of mandamus under Article 170 of the Constitution of the Islamic Republic of Pakistan. He has challenged the validity of the Electorate Act, 1956, and has prayed for the issue of a writ of mandamus or a writ of the like nature or other appropriate writ to direct the respondents, the Govern ment of Pakistan and the Secretary to the Government of Pakistan Ministry of Law, Karachi, to stop the operation of the Electorate Act, 1956 (Act XXXVI of 1956), and all other activities incidental or consequential thereto, and to refrain from proceeding with the delimitation work or any other matter. The petitioner alleges that he is a citizen of Pakistan having his residence within East Pakistan and he is also a member of the East Pakistan Provincial Assembly and is interested in the subject‑matter of this petition because his personal right or interest is affected by the Electorate Act passed by the National Assembly of Pakistan holding its sitting at Dacca, in violation of the provision of Article 145, of the Constitution. He alleges that the Constitution has guaranteed certain fundamental rights to the citizens of Pakistan and has provided for the guidance of the State policy and carrying out the legislative function for the Legislature and the Executive function of the Government in accordance with the provisions of the Constitution. He alleges further that the Constitution also authorised Parliament by Article 145 to decide the principle of electorate by an Act. The said Article is as follows: "Parliament may, after ascertaining the views of the Provincial Assemblies and taking them into consideration, by Act provide whether elections to the National Assembly and Provincial Assemblies shall be held on the principle of joint electorate or separate electorate, and may in any such Act provide for all matters incidental and consequential thereto." Pursuant to the provisions of Article 145, the Provincial Assembly of West Pakistan expressed its view in favour of separate electorate, while the East Pakistan, Assembly expressed its view in favour of joint electorate. The National Assembly of Pakistan in its session at Dacca passed a bill providing for separate‑ electorate for West Pakistan and joint electorate for East Pakistan and the same, having been assented to by the President on 30th October 1956, has become an Act of Parliament, namely, the Electorate Act, 1956 (Act XXXVI of 1956). Section 3 of the said Act is as follows:‑ "Principle of electorate‑ (1) Elections to the National Assembly shall be held‑ (a) as to constituencies in East Pakistan and candidates for election for those constituencies, on the principle of joint electorate; and (b) as to all other constituencies and candidates for elec tion for those constituencies, on the principle of separate electorate. (2) Election to the Provincial Assemblies shall be held in East Pakistan as provided in clause (a) of the preceding subsection and in West Pakistan as provided in clause (b) of that subsection." The petitioner alleges that the Electorate Act is void, ultra vires and inoperative for the following reasons:‑ (1) The said Act is beyond the legislative competence of the Parliament, being in contravention of the clear and unambiguous provision of Article 145 of the Constitution. (2) The said Act runs counter to the spirit and provisions of the Constitution and is calculated to disrupt the parity and unity between the two Provinces of Pakistan and to drive them to change their national outlook in two different directions and for growth in a different manner. (3) The said Act discriminates between the citizens of West Pakistan and the citizens of East Pakistan inasmuch as it classifies the citizens of the State into three groups in contravention of Article 5 of the Constitution. (4) The said Act is not bona fide and was passed arbitrarily with ulterior motive. It is further alleged that, in accordance with the provisions of Article 145, the Act must either provide the principle of joint electorate or separate electorate for holding elections to the National Assembly and the Provincial Assemblies and the said provisions must be uniform all over the country. The petitioner states that the Government of Pakistan has expressed the intention to hold the General Election shortly after the delimitation of constituencies has been made. The Delimitation Commission constituted by the President of Pakistan is doing the delimitation work for the purpose of holding General Elections to the National Assembly and the Provincial Assemblies in terms of the said Electorate Act and the said Commission has actually delimited constituencies in East Pakistan on the principle of joint electorate in terms of clause (a) of subsection (1) of section 3 of the Electorate Act by which the petitioner has been injured and prejudiced. On these allegations, the petitioner has come before this Court for a writ of mandamus or any other appropriate writ or direction to direct the respondents to stop the operation of the Electorate Act and all other activities connected thereto and to refrain from proceeding with the delimitation work or any other matter. An affidavit in opposition is filed on behalf of the Govern ment of Pakistan and from the papers filed before us and from the arguments advanced on behalf of the respective parties, the questions that arise for decision are: (1) Whether the petitioner has any legal right to come to this Court for the issue of a writ of mandamus or whether the petitioner has any personal immediate interest in filing this petition apart from the general interest that he may have with hundred or thousand others arid whether the petitioner's personal right has been affected by the impugned Act; (2) Whether the petitioner has any other alternative specific legal remedy for enforcing such a right: (3) Whether this Court has jurisdiction to issue a writ, as prayed for, against the Government of Pakistan having its permanent seat at Karachi, which is beyond the jurisdic tion of this Court, and against the second respondent, who is also a resident of Karachi; (4) Whether the impugned Act violates the provisions of Article 145 of the Constitution and whether the said Act is illegal, void and ultra vires of the Constitution. It will be convenient to take up the first two points together. The learned Advocate for the petitioner has con tended that his client has a legal right to come before this Court for the issue of a writ of mandamus because he has a personal interest which has been affected by the passing of the impugned Act, although the general public are also interested. As a citizen of Pakistan, it is argued, the petitioner is entitled to stand for election to the fast Pakistan Assembly and to the National Assembly of Pakistan. The impugned Act has affected the right of the petitioner, because it has provided for the principle of joint electorate for elections to the East Pakistan Provincial Assembly and to the National Assembly of Pakistan. The learned Advocate informed us that the petitioner belongs to the Muslim League Party and is a believer in sepa rate electorate and has expressed his views in favour of the principle of separate electorate for elections to the East Pakistan Provincial Assembly and to the National Assembly. By such expression of his views, he has lost the sympathy of the Hindus and, if the election to the Provincial Assembly of East Pakistan is held on the principle of joint electorate and if he be a candidate for the same, he will not receive the votes of the Hindu voters and his chances of success will be entirely lost. If the election is held on the principle of separate electorate, the Muslims will vote for him and the Hindus will vote only for the Hindu candidates in the Muslim and Hindu constituencies respectively; and, therefore, his chances of success to be elected will be cent. per cent. The delimitation under the impugned Act has taken away some Muslim voters and brought in some Hindu voters and the interest of the petitioner has, therefore, been jeopardized. The Hindu voters, it is contended, have become entirely antagonistic to him because he is a believer in the principle of separate electorate and he has given public expression to his views. Thus, it is argued, by the passing of the impugned Act, the petitioner's prospect of standing as a candidate for election to the East Pakistan Provincial Assembly and to the National Assembly in the future has been affected seriously. In answer to the arguments advanced on behalf of the petitioner, learned Attorney‑General for the Government of Pakistan has argued that the petitioner has no present legal right or interest to come to this Court for the issue of a writ of mandamus and, assuming he has any right or interest, he has other specific legal remedy for the enforcement of such a right. He has contended that the provisions of Part VIII of the Constitution have still to be implemented and that the right of the petitioner to stand as a candidate or vote in the General Election to be held has not yet accrued, because the electoral laws under Article 144 have not been passed yet. He has urged further that the petitioner had ample opportu nity to seek relief by way of a declaratory suit with a prayer for injunction in the Civil Court after the first petition filed by him was rejected by the Vacation Bench in October last. We may quote certain passages appearing in Halsbury's Laws of England, Volume 9, Second edition: At page 744, Article 1269 is as follows:‑ "The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior Court, requiring him or them to do some particular thing therein specified which apper tains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice and, accordingly, it will issue to the end that justice may be done, in all cases, where there is a specific legal right and no specific legal remedy for enforcing such right, and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial and effectual." Article 1270 is as follows:‑ "The grant of a writ of mandamus is, as a general rule of right and it is not issued as a matter of course . . . . . ." At page 768, Article 1303 is as follows:‑ "The applicant for a writ of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought. In order, therefore, that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposes a legal duty. It is only in respect of a legal right that mandamus will lie. The Court will not, therefore, enforce an equitable right by this remedy." At page 770 in Article 1305, the following passage occurs:‑ "the mere fact that a person is interested in the performance of a duty as a member of a class of persons, all of whom may be regarded as equally interested, but himself having no particular ground for claiming such performance, or that he has some ulterior purpose to serve, but no immediate interest on his own or any other person's behalf, will not be sufficient grounds for granting a mandamus." In this connection, it will be apt to quote Carlsbad Mineral Water Mfg. Co., Ltd. v. H. M. Jogtiani (A I R 1952 Cal. 315), in which J. P. Mitter, J., laid down some conditions precedent to the issue of mandamus, they being (i) that the applicant for a writ of mandamus must show that there resides in him a legal right to the performance of a legal duty of the party against whom the mandamus is sought; (ii) the Court will not interfere to enforce the law of the land by the extraordinary remedy of a writ of mandamus in cases where an action at law will lie for complete satisfaction. In order, therefore, that a mandamus may issue to compel something to be done, it must be shown that the statute imposes a legal duty; (iii) the writ is only granted to compel the performance of duties of a public nature; (iv) the Court will, as a general rule, and in the exercise of its discretion, refuse a writ of mandamus when there is an alternative specific remedy at law which is not less convenient, beneficial and effective, (v) when mandamus is refused on the ground that there is another special remedy, it is a remedy at law that is referred to. Judged by the above principles, we find that the present application must fail on this preliminary point. In our opinion, the applicant has failed to show that he has an existing right to apply for a writ of mandamus or he has an immediate interest of his own which has been affected or threatened to be affected by the impugned Electorate Act in question. Learned Advocate for the petitioner in his arguments before us has practically admitted that his client has no present right, but has what he calls a potential or inchoate right. He has argued that by the passing of the Electorate Act, the prospects of his client to stand as a candidate in the ensuing General Elections to the East Pakistan Provincial Assembly and to the National Assembly have been seriously prejudiced because the Hindu voters will not vote for him as he has already antagonized their sympathies by his declaration in favour of separate electorate and, as such, it is contended, the petitioner's personal interest has been affected. If we have understood the learned Advocate right, the petitioner has no present right or immediate interest of his own which has been affected or threatened to be affected to enable him to invoke the extraordinary jurisdiction of this Court by way of a writ of mandamus. The prospective right of franchise of the petitioner is said to be involved in this case and such a prospective right is not enforceable by invoking the extraordi nary jurisdiction of this Court. The petitioner's right to C stand as a candidate for elections either to the East Pakistan Provincial Assembly or to the National Assembly has not yet accrued, because no Electorate Laws, as contemplated in Article 144 under Chapter VIII of the Constitution, have yet o been enacted. Thus the petitioner's right at present is non existent and is potential and inchoate. To enforce such a right, the extraordinary powers of this Court cannot be invoked. We may state that the petitioner has filed the present application on the ground that he is a citizen of Pakistan and, as such, he should see that the constitutional provisions are adhered to and laws are enacted in accordance with the provisions thereof. He has not stated any where in his application that he has any present immediate right or interest and that right has been infringed by the passing of the impugned Act. In Charanjit Lal Chowdhury v. The Union of India and others (A I R 1951 S C 41) it was held inter alia that no one except those whose rights are directly affected by a law can raise A the question of the constitutionality of that law. In re: P. Ramamoorthi, petitioner (A I R 1953 Mad. 94) it was held that it is not within the Province of High Court to interfere, either suo moto or at the instance of any person, whenever there is any disregard or violation of any of the provisions of the Constitution. Its power under Article 226 of the Constitution can only be invoked at the instance of a person who has a personal grievance against any act of the State in its executive capacity which inflicts a legal injury on him, since the right which is the foundation of a petition under Article 226 of the Constitu tion or a corresponding provision is a personal an individual right. It was held further that a person either as a member of the Legislature or a citizen has no such personal and direct interest in the matter of the nomination of a member to the legislature as to enable him to invoke the provisions of Article 226 of the Constitution. It was held further that the political rights, if any, cannot come into play in a Court of law unless such rights have the character of a legal right. Having regard to these decisions, with which we entirely agree, we must hold that the petitioner has totally failed to satisfy us that he has any immediate legal right or interest which has been infringed or threatened to be injured by the impugned Act for the enforcement of which he can come to this Court to invoke its extraordinary jurisdiction. There is another side of the picture. It seems to us that the petitioner has not filed this petition in good faith and that he has filed it for some indirect purpose or with ulterior motive. The petitioner in his application alleges that he has come to this Court with this application because as a citizen of Pakistan he should see that the constitutional provisions are adhered to and that the laws are made in conformity) with the constitutional provisions. At the hearing, however, the learned Advocate tried to make out a case that as the personal right or interest of the petitioner has been jeopardized because of the passing of the Electorate Act, he has invoked the extraordinary jurisdiction of this Court for the issue of a writ of mandamus. We are asked to hold that by personal right or interest the petitioner means the prospective right of franchise, which has not been alleged in the petition. Being confronted with the objection raised on behalf of the Government, the learned advocate has raised the question of such personal right. When questioned, the Learned advocate for the petitioner admitted that the petitioner would have no objection to the passing of the Electorate Act if the principle of joint electorate was also provided for election to the Provincial Assembly of West Pakistan. We fail to understand how the interest of the petitioner as a prospective candidate for election to the East Pakistan Provincial Assembly and to the National Assembly of Pakistan would be jeopardized. If his fears that the Hindus would not vote for him as he is a staunch believer in separate electorate and has alienated the sympathy of the Hindu voters be genuine, then the same fear will remain if the principle of joint electorate was also provided for election to the West Pakistan Provincial Assembly. It follows then that the petitioner has no real legal right or interest which has been affected or is threatened to be injured by the passing of the Electorate Act. We may here mention some of the case‑law on the subject: In The Queen v. The Guardians of the Lewisham Union (L R (1897) 1 Q B D 498), it was held that an applicant who comes before the Court for a writ of mandamus should have a legal specific right to enforce the performance of legal duties for the interference of the Court. It was observed by Bruce, J., that the Court has never exercised a general power to enforce the performance of statutory duties by public bodies on the application of any body who chooses to apply for a mandamus. This authority has been followed in many Indian decisions. In the matter of J. M. Sen Gupta v. H. E. A. Cotton and others (I L R 51 Cal. 874), the facts are that an application under section 45 of the Specific Relief Act for an order directing the Hon'ble Mr. H. E. A. Cotton, President of the Bengal Legislative Council, to decide on the admissibility of a certain motion, being item No. 6 in the List of Business to be brought forward at the session of the Bengal Legislative Council, which was to commence on the 7th July 1924, at 3 p.m. and to disallow the said motion or to forbear putting the same at the said session of the Bengal Legislative Council, and for such further or other order as to the Court might seem fit and proper and for an order that the said Mr. Cotton and the other respondents do pay the costs incidental to the applica tion. It was observed that an applicant for a writ of mandamus must show that he has a real and special interest in the subject‑matter under specific legal right to enforce and that right must not be enjoyed by the applicant with thousand others. On the facts of that case it was found that there was no injury threatened to the petitioner and the application was dismissed. In Indian Sugar Mills' Association v. Secretary to Government, Uttar Pradesh Labour Department (A I R 1951 All. 1 (F B)), it was held that Article 226 of the Constitution is not intended to provide an alternative method of redress to the normal process of a decision in an action brought in the usual Courts established by law. The powers under this Article should be sparingly used and only in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him. In the same volume at page 228 appears the case of Chotey Lal. v. The State of Uttar Pradesh and others (A I R 1951 All. 228 (F B)), in which it was held that the Courts in India have no jurisdiction to interfere with the proceedings of Legislatures. It was held further the mandamus is neither a writ of course nor a writ of right, but it will be granted if the duty is in the nature of a public duty and specially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to, whom it is issued must be either under statutory or legal duty to do something or not to do something, the duty itself being of an imperative nature. In the Bangalore District Hotel‑Owners Association (A I R 1951 Mysore 14), it was held that under section 45 of the Specific Relief Act an application for the issue of a writ must be made by an aggrieved party. Thus, an association, although registered under the Societies Registration Act, has no locus stand to make an application under the Article for the personal and individual‑ grievance of some of its members and not of the association itself. Lastly, in Sheoshanker v. State Govt. of Madhya Pradesh and others (A I R 1951 Nag. 58 (F B)), it was held inter alia that a petition for the examina tion of the constitutionality of an Act does not lie even under the wide powers conferred by Article

226. It was held further that in no country is the constitutionality of a statute examined on a mere petition to a superior Court. In other words, advisory opinions or declaratory judgments on the constitutionality of legislation cannot be given apart from some concrete injury or controversy. We agree with the decisions arrived at in the above cases. There is no doubt in our minds that the petitioner has come before us for some indirect purpose and ulterior motive and the petition is not filed, therefore, in good faith and this, is also another ground on which we hold that the petition is not maintainable. Assuming that the petitioner has some right to be enforced, even then our opinion is he has an alternative legal specific remedy to enforce such a right. The matter before us has lost its urgency and is not urgent now as it was when the Electorate Bill was before the National Assembly at Dacca in October last year. It is conceded that the petitioner filed a petition for a writ of mandamus before the Vacation Bench in October last when the Electorate Bill was being debated in the Assembly. That petition was rejected after which the Electorate Act was passed and in pursuance thereof the Delimitation Commission has since finished the delimita tion work so far as the elections to the East Pakistan Provincial Assembly and for elections to the National Assembly from East Pakistan are concerned. If he had been so advised, the petitioner could have sought relief in a Civil Court by filing a declaratory suit with a prayer for injunction, because the provisions of Chapter VIII of the Constitution have not been implemented. Article 170 of the Constitution is not meant to provide an alternative method of redress to the normal process of decision in an action brought in the Civil Courts established by law. As already observed, the powers under the said Article should be sparingly‑ used and only in those cases where the rights of a person have seriously been infringed and he has no other f adequate and specific remedy. (A I R 1951 All. 1 (F B.) Assuming that the petitioner has any right of his own or that right has been affected or is threatened to be injured, he has an adequate and specific remedy available to him. That remedy! is not less convenient, beneficial and effective. The petitioner's case concerns questions of law and if a suit had been filed by him after the rejection of his first petition, by this time possibly the suit would have been heard and decided. There seems to be no urgency in the matter at present as it is not known when the General Elections will be held and when the Electoral Laws will be passed. We, therefore, hold that the preliminary objections raised on behalf of the Government of Pakistan as to the non- maintainability of this application at the instance of the petitioner are tenable and that the application is not maintainable. The other objection raised on behalf of the respondents appertains to the jurisdiction of this Court to issue a writ as prayed for. It was contended that as both the respondents were beyond the territorial jurisdiction, this Court has no jurisdiction to entertain the present application. This brings us to the consideration and the interpretation of Article 170 of our Constitution, which provides that notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises its jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part II and for any other purpose. This Article is practically the same as Article 226 of the Indian Constitution, except for the words "within those territories" appearing between the words "any Govern ment" and "directions" in Article

226. The learned Attorney General has contended that the emphasis is on territories and not the jurisdiction of the High Court, and, therefore, there was no need to use the words "within those territories" in Article

170. Those words, according to him, have been deliberately omitted as being redundant. He has pointed out that if this is the power of the High Court, then the power to issue writs is confined to those territories only. Thus the High Court cannot issue a writ against any person or authority including inappropriate cases any Government outside the territorial jurisdiction of the High Court and a writ can only issue against any person or authority including in appropriate cases any Government if they are within the territorial jurisdiction of the High Court. In the present case, he has contended, both the respondents are in Karachi and beyond the territorial jurisdiction of this Court and, as such, no writ, as prayed for, can issue against them. To support his argument, reference was made to decisions of many High Courts in India. As this point does not appear to have been agitated in any of the Courts in Pakistan and perhaps is the first time it has been agitated, no authority of any Court is available. The learned Attorney General made reference to the following decisions of High Courts in India:‑ In Ramesh Chandra Chatterjee v. Director‑General of Observatories and another (A I R 1953 Cal. 767), it was held that the Director‑General of Observa tories, New Delhi, cannot be said to be carrying on his normal activities within the State of West Bengal and, as such, he would not be amenable to the jurisdiction of the Calcutta High Court which cannot, therefore, issue a writ under Article 226 against him nor can it issue such a writ against the Government of India. In Krishna Khandelwal v. Director of Lands, Hirings and Disposals, and others (56 C W N 306), it was held that no relief can be granted under Article 226 of the Constitution as against the Union of India because the Union of India is not located within the Jurisdiction of the High Court. In Election Commission, India v. Saka Venkata Rao (A I R 1953 S C 210), it was held that the High Court of Madras cannot issue any writ under Article 226 to the Election Commission having its offices permanently located at New Delhi. At page 212 bottom, it was observed: "In the first place, the power is to be exercised `through out the territories in relation to which it exercises jurisdic tion', that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be within those territories, which clearly implies that they must be amen able to its jurisdiction, either by residence or location within those territories." At page 213, it was observed: "These writs were thus specifically directed to the persons or authorities against whom redress was sought and were made returnable in the Court issuing them and, in case of disobedience, were enforceable by attachment for con tempt. These characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the Court was asked to issue these writs should be within the limits of its territorial jurisdic tion. We are unable to agree with the learned Judge below that if a tribunal or authority permanently located and normally carrying on its activities elsewhere exercises jurisdiction within those territorial limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as `functioning' within the territorial limits of the High Court and being, therefore, amenable to its jurisdiction under Article

226. It was, however, urged by the respondent's counsel that the High Court had jurisdiction to issue a writ to the Commission at New Delhi because the question referred to it for decision related to the respondent's right to sit and vote in the Legislative Assembly at Madras and the parties to the dispute also resided in the State of Madras. The position, it was claimed, was analogous to the Court exercis ing jurisdiction over persons outside the limits of its juris diction, provided the cause of action arose within those limits. Reliance was placed upon the follow ing observations of the Privy Council in A I R 1943 P C 164 . We cannot accede to this argument. The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issue-able under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority `within the territories' in relation to which the High Court exercise juris diction . . . . . . . . . . . In K. S. Rashid & Son v. Income‑tax Investigation Commission and others (A I R 1954 S C 207), it was held that although Article 226 confers on all High Courts new and very wide powers in the matter of issuing writs which they never possessed before, there are only two limitations placed upon the exercise of these powers by a High Court under Article 226 of the Constitution; one is that the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court is empowered to issue writs must be "within those territories" and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is with reference to these two conditions thus mentioned that the jurisdiction of the High Courts to issue writs under Article 226 of the Constitution is to be determined. It was held further that the Punjab High Court has jurisdiction to issue writ to the Investigation Commission in Delhi under section 5 of Act XXX of 1947, the case of the petitioners who were the assessee within the U. P. State and whose original assessments were made by the Income‑tax authorities of that State, even though subsequent proceedings which would have to be taken in pursuance of the report of the Investigation Commission would have to be taken by the Income‑tax authorities in the U. P. and if a case would have to be stated it would have to be stated to the High Court at Allaba‑bad The case in A I R 1953 S C 210 was relied upon. In A. Thangal Kunju Musalliar v. M. Venkatachalam Potti and another (P L D 1956 S C (Ind.) 291), the same two conditions, namely, that writs cannot run beyond the territories subject to the jurisdiction of the High Court and the person or authority to whom the High Court is empowered to issue such writs must be "within those territories" was reiterated. The cases reported in A I R 193 S C 210 and A I R 1954 S C 207 were followed. On a consideration of the wording of Article 226 of the Indian Constitution it is clear that in order that a High Court may exercise its extraordinary jurisdiction and issue a writ, two conditions must be fulfilled as laid down in the decisions mentioned above. Learned Advocate for the petitioner has contended that the omission of the words "within those territories" from Article 170 can only mean that the High Court can issue writs against any person or authority outside its territorial jurisdiction including any Government, which is interpreted to include not only the Provincial Government but also the Central Government because it functions all over Pakistan. The deletion of tree words "within those territories", it is argued, is intcntion to get rid of 00 condition of residence. Reliance was placed on Maqbulunnissa and others v. Union of India and another (A I R 1953 All. 477 (F B)), The petitioners in that case applied to the High Court for a writ in the nature of mandamus or alternatively for directions or orders directing the opposite parties to forbear from giving effect to the order asking the petitioners to leave India or getting their order executed by their subordinate officers. The Full Bench upheld their con tentions and Held that the Union of India can be said to be within the territori jurisdiction of the Allahabad High Court as it has been given authority throughout the length and breadth of the Country. It was further held that the powers for issuing writs, orders or directions should not be utilized for giving what is in essence a declaratory relief. Learned Advo cate could not place before us any other decision to support the argument advanced by him. On a consideration of the wording of Article 170, the case law of the Indian High Courts and the arguments advanced, the position seems to be as follows: Although the words, "within those territories" do not appear in Article 170, as they do in Article 226 of the Indian Constitution, the meaning of Article 170 is the same as the meaning of Article 226 of the Indian Constitution. Those words are redundant, as argued by the learned Attorney‑General. Those words form the second condition mentioned in the indran authorities, namely, that the respondent must be within the territorial jurisdiction of the High Court to make him amenable to its jurisdiction either by residence or location. In spite of the omission of those words, the other condition remains, namely, that the power of the High Court is to be exercised throughout the territories in relation to which it exercises jurisdiction, that is to say, writs issued by the Court cannot run beyond the territories subject to its jurisdiction. We are unable to accede to the argument that because the cause of action, so to say, arose within this Province, this High Court can issue a writ against the respondents. The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and does not apply to writs which are issued under Article 170, which L makes no reference to any cause of action or where it arises. It is impossible to uphold the contention put forward on behalf of the petitioner that by the deletion of the words "within those territories" it was the intention to get rid of the condition of residence. If a writ is issued against a person or authority or any Government outside the territorial juris diction of the High Court, there is nothing to prevent such person, authority or any Government, to flout tie order of the High Court as, it is not amenable to its territorial jurisdiction. The Government of Pakistan is situated in Karachi and the office of the Secretary to the Government of Pakistan, Ministry of Law, is also located there. It does not follow that because the Central Government has authority all over the country, it can be said that it carries out all its normal functions throughout the country though some branches of the Central Government such as the Income‑tax Department, Customs, Radio Pakistan, Posts and Telegraph Department, etc., are located in this Province and this distinction cannot be ignored. If the Government of Pakistan or the Secretary, Ministry of Law, had its branch office in this Province, a writ against them could be issued in fit cases as they would not be outside the territorial jurisdiction of this Court. In that event, issuing a writ to any person, authority or any Government outside the territorial jurisdiction would not arise. We entirely agree with the decisions of the various Indian High Courts referred to on behalf of the respondents and, having regard to the facts of this case, we must hold that as both the respondents are outside the territorial jurisdiction of this Court, no writ, as prayed for, can be issued against them. This objection on behalf of the respondents must also be upheld. There now remains the interpretation of Article 145 as to whether the Constituent Assembly has delegated its power to the National Assembly to enact a law to provide for a uniform principle of election throughout Pakistan or to enact a law after ascertaining the views of the Provincial Assemblies whether the elections to the National Assembly and Pro vincial Assemblies shall be on the principle of joint or separate electorate. Learned Advocate for the petitioner has harped on the word or in Article 145 and has contended that there cannot be one principle of electorate in one wing and another principle of electorate in another wing. He has contended that Article 145 does not empower the National Assembly to enact one principle for one wing and another principle for another wing. The Article, it was contended, provides that Parliament may only ascertain the views of the Provincial Assemblies and was not bound to accept that opinion and, if the opinions of the two wings differed, it was left to the National Assembly to come to a decision, as to which principle of electorate would be adopted for the National and Provincial Assemblies. It was further argued that the National Assembly had gone beyond the powers delegated to it by the Constituent Assembly. Both sides agree that the words appearing in Article 145 should be given their plain meaning and the Courts should not go beyond the plain words used. In Robert Wigrom Crawford v. Richard Spooner (1), Lord Brougham, inter alia, observed as follows:‑ "We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Statute: we cannot add, and mend, and, by construction, make up deficiencies which are left there. if the Legislature did intend that which it has not expressed clearly, much more, if the Legislature intended (1) 4 Moore's I A 179, at page 187 something very different, if the Legislature intended some thing pretty nearly the opposite of what is said, it is not for Judges to invent something which they do not meet within the words of the text . . . . It is not for them so to supply a meaning, for in reality, it would be supplying it; the true way, in these cases, is to take the words as the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered; and, therefore if any other meaning was intended than that which the words purport plainly to import, then let another Act supply that meaning, and supply the defect in the previous Act . . . . . . ." In Nokes v. Doncaster Amalgamated Collieries, Limited (L R 1940 A C 1014 ,at page 1022), Viscount Simon, on, C., observed as follows:‑ "The golden rule is that the words of a statute must prima facie be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous lave for the purpose of a large part of our statute law is to make lawful that which would not be lawful with out the statute, or conversely, to prohibit results which would other wise, follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations, the narrower of which fails to achieve the manifest purpose of the legisla tion, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result." In Hoani Te Heuheu Tukino v. Aotea District Maori Land Board (A I R 1941 P C 109), it was held that it is not open to the Court to go behind what has been enacted by the legislature, and to enquire how the enactment came to be made, whether it arose out of incorrect information, or, indeed on actual deception by some one on whom reliance was placed by it. The Court must accept the enactment as the law unless and until the Legis lature itself alters such enactment, on being persuaded of its error. The Courts of law cannot sit in judgment on the Legislature, but must obey and give effect to its deter mination. The learned Attorney‑General also is of opinion that the words of Article 1.45 are plain enough but he has put a different construction on the same to show that the impugned Act in no way is ultra vires of Article

145. He has contended that the Constituent Assembly, instead of itself deciding what principle of electorate should be adopted for the National Assembly and the Provincial Assemblies of the two wings, delegated its power to the Provincial Assemblies to come to a decision thereon and the National Assembly, after ascertaining those views, was by Act to provide that elections to the National Assembly and the Provincial Assemblies shall be held on the principle of joint electorate or separate electorate. He has argued that after ascertaining the views of the Provincial Assemblies, the National Assembly could not have enforced its own views regarding the principle of electorate on either of the two wings. Article 145 uses the words "joint electorate or separate electorate" and not the words "either joint electorate or separate electorate." Three different elections are contemplated by the Article and the words "joint electorate or separate electorate" are used, the one not excluding the other. The meaning of Article 145 is that the Constituent Assembly instead of deciding what principle would operate in regard to the elections to East Pakistan Assembly, West Pakistan Assembly and the National Assembly left the question to be decided by an Act to be passed by the Parlia ment. The rights of the National Assembly were co‑extensive with the rights of the Constituent Assembly and, by the passing of the impugned Act, the National Assembly gave effect to the wording of the Article and to the powers delegated to it by the Constituent Assembly and did not go beyond the delegated powers. Inasmuch as at the time there was controversy regarding the principle of election to be adopted in the two wings, it was deemed fit, therefore, to delegate that power to the National Assembly to pass an Act after ascertaining the views of Provincial Assemblies. If there was only one Assembly, the interpretation sought to be placed on the words of Article 145 would have some meaning. We have to consider elections to three Assemblies each of which was to be on the basis of joint or separate electorates. If the National Assembly had forced its views and passed an Act providing for one principle of electorate in both the wings After ascertainment of the views of the Provincial Assemblies that would have amounted to a denial of democracy which the Constitution envisages. In spite of the fact that the Pro vincial Assembly in East Pakistan wanted elections to be on the basis of joint electorate, the National Assembly could not force its views and enact a law contrary to the opinion of the Provincial Assembly. The question before us may be explained by an example: A tells B to give X, Y and Z apples or pears. B will give X, Y and Z apples or pears according to what they want. X may take apples, Y may take pears and Z may take apples. It does not mean that A asked B to give X, Y and Z either apples or pears. Similar is the case before us. Article 145 contemplates the holding of elections to the National Assembly and the Provincial Assemblies on the principle of joint electorate or separate electorate after ascertaining the views of the Provincial Assemblies and not on the principle of either joint electorate or separate electorate, as contended on behalf of the petitioner. The above is our considered view regarding the interpretation of Article

145. That view is independent of any other consideration and finds full support by resorting to the opinions and motives of the legislators. In some instances the Courts have referred to debates of the members of Legislatures particularly where such debates are available when the law is being construed. Reference may be made to Tamizuddin r Khan's case (P L D 1955 F C 240). In that case, the Hon'ble the Chief Justice of Pakistan referred to the debates in the House of Commons on the Indian Independence Act. Thus, in the interpretation of Article 145, it is permissible to refer to the opinions and motives of the legislators before the Electorate Bill was passed by the Legislature. Odgers, on the `Construction of Deeds and Statutes', Second Edition, at page 199, observes as follows:‑ "If the words are plain, there is of course no difficulty and no necessity to invoke any canon of construction. What does create a difficulty (to be referred to later) is the question, when are the words plain? What is plain to one mind may be just the reverse to another. If the words are not plain, the first thing to do is to consider the object and scope of the Act . . . . . . . ." At page 223, the learned author states:‑ "As Lord Blackburn said: `In all cases the object is to see what is the intention expressed by the words used. But from the imperfection of language it is impossible to know what that intention is without inquiring further and seeing what the circumstances were with reference to which the words were used and what was the object appearing from those circumstances which the person using them had in view. For, the meaning of words varies according to the circumstances with respect to which they are used." We were referred to the official report of the Constituent Assembly of Pakistan debates, dated the 21st February 1956.1 The Hon'ble Mr. Abdus Sattar, one of the Ministers at the Centre, who moved the amendment to the original Article 153 of the Constitution, an amendment which is Article 145 now, stated in the Constituent Assembly: "Sir, as I have stated this gives the National Assembly an opportunity of ascertaining the views of a more representa tive house directly elected and also it can get an opportunity of deciding whether there should be different systems in the two parts of the country." Thus the opinion and motive of the legislators at the time when the original Article 153 was amended was whether there should be different systems of electorates in the two parts of the country if the Provincial Assemblies so decide. Crawford on the `Construction of Statutes', 1940‑Edition, A at page 404, observes:‑ "Where the meaning of a statute is in doubt, if the Legislature has indicated its construction of the language in question in other statutes where it has used the same language, the Court may properly resort to such legislative construction for assistance. Such construction, however, is not binding on the Court. It is, nevertheless, entitled to some weight, even if only of a persuasive nature . . . . . . " The first preamble to the impugned Act is identical with the words in Article

145. It is significant that the same members responsible for having the Constitution of the country passed including Article 145 sitting as the National Assembly inter preted Article 145 in the manner that they have done by enacting the impugned Act. If the intention of the Constituent Assembly was to have one system of electorate throughout Pakistan, be it joint or separate, the members of the Constituent Assembly, sitting as members of the National Assembly, would have embodied that principle clearly in the Electorate Act when it was passed. This also strengthens the opinion we have expressed above. On a consideration of the arguments advanced before us on the wording of Article 145, we are satisfied that the plain meaning of Article 145 is that the Constituent Assembly instead of deciding what principle should operate in regard to election to the East Pakistan and West Pakistan Assemblies or to the National Assembly left it to be decided by an Act to be passed by the National Assembly. The power was delegated to the National Assembly to pass an Act after ascertaining the views of the Provincial Assemblies providing for elections to the three Assemblies to the held on the principle :of joint electorate or separate electorate and not on the principle of either joint electorate or separate electorate. The Article left to the Assemblies concerned to arrive at a decision as to whether they would have elections on the basis of joint or separate electorate and that view has been incorporated in the impugned Act. We have found against the petitioner on all the points. In our opinion, this is not a bona fide application and it was filed with some ulterior motive. In these circumstances, this case is a fit and proper case where we should make the petitioner pay the costs. The Rule is discharged with costs, hearing fee being assessed at ten gold mohurs. Mr. Abdul Hakim, on behalf of the petitioner, asks for leave to appeal to the Supreme Court under clause (1) of Article 157 of the Constitution. As the case involves a substantial question of law as to the interpretation of the Constitution, the leave prayed for is granted. KHAN, J.‑

I agree. A. H. Petition dismissed.