P L D 1956 Federal Court 1 (PLP)

CORNELIUS, J.‑

This is an appeal by Crown against an order of the learned Judicial Commissioner of North‑West Frontier Province (now merged in the West Pakistan Province) whereby a petition in the nature of Habeas Corpus moved on behalf of the respondent Muhammad Afzal Bangash was allowed, and it was ordered that the respondent should be released from detention under an order purporting to be made by the Governor of the Province, under the North‑West Frontier Province Public Safety Act, 1948. The order is dated the 23rd July 1954, and directed that Muhammad Afzal Bangash should be detained for the period of one year. That period expired on the 22nd July, 1955. Muhammad Afzal Bangash was actually released in compliance with the order under appeal, which is dated the 2nd December, 1954. This appeal has been brought before the Court on the basis of a certificate granted by the learned Judicial Commissioner under section 205, Government of India Act, 1935. No question has been raised before us as to its competence, nor could any such question be raised in view of the clear decision on the point by the Privy Council in the very similar case reported as King‑ Emperor v. Sibnath Banerji (721 241 at. p. 256). It may be added that Mr. Manzur Qadir appearing for the appellant conceded that after the expiry of the full period of the detention order, after it has once taken effect i.e., by the actual arrest and detention for a considerable period of the respondent, he was nod in a position to claim any validity for that order at the present time whether actual or latent, in the sense of being capable of being revived by an order of any authority. He nevertheless desired that the appeal should be heard in order that the correctness of the grounds upon which the learned Judicial Commissions had proceeded in making his order under appeal should be examined and pronounced upon by this Court. The present case is very closely analogous to that which presented itself before their Lordships of the Judicial Committee in the case of Sibnaih Banerji already cited. The conclusions reached in that case are indeed so directly decisive of every point which was raised before the learned Judicial Commissioner that the absence of mention of that case in the order under appeal must necessarily furnish an occasion for considerable surprise. This is the more so as we find that the learned Judicial Commis sioner not only had the assistance of counsel for the detenu, as well as the Advocate‑General on behalf of the Province, but had also, as appears from his order, himself been at pains to search among the relevant authorities for guidance. It seems regrettable that these researches should have reached only as far as the judgment of the Federal Court of India in the case of Sibnarh Banerji (AIR1943FC75) which was over‑ruled some two years later by the Privy Council. The learned Judicial Commissioner was thus led to guide himself by certain observations contained in the judgment of the majority of Judges of the Federal Court, from which a clear dissent had been expressed by the Judicial Committee. In view of the direct nature of the assistance derivable from the judgment of the Judicial Committee in Sibnath Banerji's case, our task in the present case is greatly shortened. As regards the facts it will be sufficient to say that we accept the conclusion of the learned Judicial Commissioner that the decision as to the detention of the respondent was made by the Chief Minister of the Province upon the recommendation of the Chief Secretary. Proceeding upon that basis, the learned Judicial Commissioner opined that in respect of so important a matter as the liberty of the subject, the responsibility of curtailing that liberty by executive order was intended by the Constitution to rest upon a combination of individuals, namely the Governor and his Ministers and riot upon any single individual. He noted that the duty of, being satisfied regarding the existence of the conditions necessary for the making of an order of detention under the Provincial Act in question, rested upon the Provincial Government, and asked himself the following pertinent questions, which lay at the root of the whole case namely, (1) what is meant by "Provincial Government, and (2) who in law is entitled to exercise the authority of the Provincial Government ? He concluded as to the first question that the Provincial Government "is the Governor conducting the affairs of the Government of a Province including those of the executive nature as aided and advised by a Council of Ministers". It appears that the learned Judicial Commissioner derived support for this conclusion from an observation by the majority of the Judges of the Federal Court in the case of Sibnath Banerji cited above, which may be reproduced with advantage. The expression " Provincial Government " which was defined by these learned Judges in the following terms : ‑‑ " It means the Governor acting in his discretion (in which case his Ministers are not entitled even to tender their advice to him), or the Governor exercising his individual judgment (in which case he must give his Ministers the opportunity of tendering advice but is under no obligation to accept that advice) or the Governor acting on the advice of his Ministers. In each case, it must be the Governor who acts. The learned Judicial Commissioner then noticed certain judgments of Courts in India, without however being able to agree with their conclusions on the point relevant to the case before him. In addition, he referred to certain published judgments of his own Court but these it is not necessary to deal with in detail, and it will be sufficient at this stage to state the final conclusion on the second question which he stated in the following terms :‑ "The above discussion then amply proves that‑in all matters concerning the executive authority of a Province or the functions of the Governor, it is the Governor who should act although with the aid and advice of his Ministers, and not the Ministers. Preventive Detention is as has not been denied by the learned Advocate‑General an executive act of the Provincial Government, and it is therefore only the Governor although aided and advised by his Ministers who can exercise such tremendous polder, as to take away the liberty of a subject of a free state for preventive detention. Since in the case before me this action has been taken, if it can be said that it was taken by him at all, by Honourable the Chief Minister and not the Governor, it is without jurisdiction and ultra vines." The case for the Crown before the learned Judicial Commis sioner was that under the Rules of Business of 1951, made by the Governor under section 59, Government of India Act, 1935, the subject of preventive detention was placed in the Chief Secretary's department. Further, acting under the same section, the Governor had allocated this subject to the Chief Minister of the Province, and in proof of this reliance was placed upon a memorandum issued to all Secretaries to Provincial Government and all Heads of Departments, under the signature of the Secretary to the Governor. The learned Judicial Commissioner expressed the view that the words "business of the Provincial Government" occurring in section 59 (3) had a limited meaning, which he has defined ill the following terms :‑‑ " In my view the word " Business " implies the day to day and routine work of the Government. It is only with regard to this that the Governor is authorised to make the rules". That dictum must therefore be interpreted to mean that, in the view of the learned Judicial Commissioner, the exercise of "such tremendous power as to take away the liberty of a subject of a free state for preventive detention" could not be made the subject of a rule under section 59 (5), Government of India Act, 1935. As to the memorandum allocating the subject of preventive' detention to the Chief Minister, the learned Judicial Commissioner observed that it did not "even claim to emanate from the Governor much less that they were the rules framed under the relevant law", and concluded that the Chief Minister "could not acquire any jurisdiction in the matter on the basis of the memorandum even if he could be clothed with such powers by the Governor". With respect, we are unable to agree with the learned Judicial Commissioner in any one of these conclusions, and we feel no doubt that had the judgment of the Privy Council in the case of Sibnath Baneiji been brought to his notice, he could not possibly have reached these conclusions. That also was a case of preventive detention, albeit under the Defence of India Rules, and the question which arose there was very similar to that in the present case, namely whether the expression in the orders of detention that the Governor was satisfied regarding the necessity of detain ing the persons in question was not, in the eye of law, negatived by‑proof that the case had never been placed before the Governor but had been dealt with in the Secretariat at and below ministerial level. Their Lordships of the Judicial Committee cited in their judgment sections 49, 50, 52 and 59 of the Government of India Act as it then stood. Of these, sections 49, 50 and 59 are relevant under the present conditions, as section 52 related to certain special responsibilities of the Governor which no longer appear in the Constitution Act. The other three sections have also been amended, but not so as to affect their operation upon the questions in issue in any material respect. Briefly, the essential provisions of these sections are (1) that "the executive authority of .the Province shall be exercised by the Governor either directly or through officers subordinate to him" ; (2) that "there shall be a Council of Ministers to aid and advise the Governor in the exercise of his functions".; (3) that "all executive action of the Government of the Province shall be expressed to be taken in the name of the Governor" ; and (4) that "the Governor shall make rules for the more convenient transaction of the business of the Provincial Government, and for the allocation among the Ministers of the said business". The conclusions of their Lordships of the Judicial Committee are relevant to the present case. They observed that the majority of the Judges of the Federal Court had held that for the purposes of an order of detention tinder rule 26 of the Defence of India Rules, "the Governor must be personally satisfied as to the matters therein set out, and that in view of the admission by the Crown that none of the cases before them had the Governor himself considered the case, the orders for detention were not in conformity with the rule". As against this, the Chief Justice of India had held that notwithstanding any special provisions contained in the Defence of India Act, matters such as "those which fell to be dealt with by the Governor under rule 26, could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chapter Il of Part III of the Act of 1935, and, in particular, under the provisions of section 49, and the Rules of Business made under section 59." This conclusion was expressly affirmed by the Judicial Committee and it clearly leads to the following conclusion, namely, that a matter such .as preventive detention is capable of being dealt with under the Rules of Business under section 59, and that preventive detention is a matter a lying within the executive authority of the Province which may be the subject of action by the Governor, either directly or through officers subordinate to him, as provided by section 49, Govern ment of India Act, 1935. The contrary view of the learned Judicial Commissioner must therefore be overruled. In the same judgment, their Lordships of the Judicial Committee have also settled the question that a Minister is an officer subordinate to the Governor. The discussion on the point t will be found at pages 265 and 266 of the report already cited, and here it will be sufficient to reproduce only the final conclusion which is in the following terms: ‑ "While a Minister may have duties to the Legislature, the provisions of section 51 as to the appointment, payment and dismissal of Ministers, and section 59, subsections (3) and (4), of the Act of 1935, and the Business Rules made by virtue of section 59, place beyond doubt that the Home Minister is an officer subordinate to the Governor". Consequently, it would appear that the learned Judicial Commissioner was wrong in thinking that an order under the North‑West Frontier Province Safety Act, 1948 for the detention of a person under section 3, could not validly be made by the Chief Minister, assuming that the subject had been allocated to him. On the latter point also it seems clear to us that the learned Judicial Commissioner has fallen into error in disregarding the memorandum placed before him, whereby the orders of the Governor regarding the allocation of subjects among the Ministers were communicated by his Secretary to the proper Departments of the Provincial Government. It is not to be supposed that the Secretary to the Governor is devoid of status in the context of the relevant law and the instruments made thereunder. On the other hand, the maxim omnia praesumuntur rite essa acta requires that it should be presumed until the contrary is established that an official act was taken in proper form and with due regard to the requirements of law. It has not been suggested before us that the subject of preventive detention was not in fact allocated by the Governor of the N‑W. F. P, to the Chief Minister. On these grounds, the appeal of the Crown must be allowed, and it must be held that the order of detention made on the 23rd July, 1954 in respect of the respondent Muhammad Afzal Bangash was a valid order. There will be no order as to costs. A.H. Appeal allowed.