P L D 1966 Dacca 331 (PLP)

When there is a partial repeal of some provisions of a statute and other provisions are left untouched, the principle is that the statute must still be construed as a whole and, to this end, the repealed provisions can and, in most cases, should be looked into to order to construe the meaning of the provisions which have been left un-repealed and unaltered. If, however, the context affords a clear indication that the terms used therein have a different sense from the one assigned to it by the interpretation clause, the index supplied by the context will control the meaning of the clause. It must be borne in mind that there is a difference between repealing an entire Act and repealing some of its provisions only. 7 he same would be the result when a substitution is effected in respect of some clauses only. If a clause is repealed it may be taken as if it had never existed; but where only some of the provisions of an Act are repealed, it cannot be said that the whole Act must be read as if the repealed clause had never been enacted. A repeal of a clause or a substitution in some of the clauses makes it permissible to use the repealed clauses in construing the meaning of the remaining portion of the statute, which has been left unaltered in the condition in which it had co‑existed with the repealed clause. Indeed, to interpret the unamended portion of an Act and to give it a proper meaning, it is necessary to look into the provisions which have been repealed. It is only thus, that is, by construing the unrepealed and unamended portion as a whole in the light of what had co‑existed with it, namely, what has been repealed, that the true meaning of a maiden section‑can be ascertained in order to gather the true intention of the enactment as it emerged in its pristine condition at its birth. No restriction has ever been imposed upon the interpreter in looking into repealed provisions in order to ascertain the correct meaning of an unrepealed section which had co‑existed with the repealed clauses. It is no doubt correct to say, as noticed above, that the moment the repeal takes effect, it would be taken as if the repealed clause had never existed on the statute, book; but what has been repealed can be used to give a different meaning to a different clause which has remained unamended, unrepealed and intact. Looking into the considerable bulk of the Articles enumerated in the Order, it would be seen that only a few sub‑clauses in the interpretation clauses has been replaced and that is the object of the 1965 Act. It is true that some adjustments have been made in some other articles, but they do not lead to an inference that the conferment of functions of Local Government stands transferred to the substituted bodies. All the sign‑posts, which point to a contrary direction, have been left intact. Nothing has been said to give the relevant Articles a new direction. The clauses which have been given a new meaning would receive such new meaning in a context which has been suitably altered; but with regard to Articles, which have been left unaltered and which constitute a part of the original Order, they must remain in force in the same condition as they had emerged in the statute. They must have the same meaning and effect as they originally had. When an Act survives, in its original form, with only a few alterations in some clauses, what remains has to be construed with reference to the entire Act. This is what is meant when it is said that a statute must be construed ex visceribus actus. The Court can, and often must, look into the repealed portion of an Act to see what is the meaning of what remains of the Act, otherwise, this consequence would follow that an Act would have different meaning at different times, even with regard to what remains in its original form. It is not enough to effect, as has been expressly done by the 1965 Act, a few changes in the definition clause in order to import a new meaning to such words which occur in provisions where the words have obviously a different meaning unless something else is indicated in the said provisions, which will make the changed definitions applicable to an unmodified context. While I am still on the subject of interpretation it is worth' while to remember that (a) the same words may be used in different senses in the same statute; (See Whitely v. Stumblles (1930 A C 544) where the word "premises" has been given different meanings in different parts of the same statute); (b) the same word may have different meanings in the same section (See River Wear Commis?sioners v. Adamson ((1877) 2 A C 743)). Now, it is well‑settled that repealed provisions can and when necessary, must be looked into in order to ascertain the meaning of an unrepealed provision (See Attorney‑General v. Lamplough ((1878) 3 Ex. D 214)). In this connection, I may quote a passage from Craies, "Statute Law", 6th Edition, page 413, which runs thus: "It must be borne in mind that there is a difference in effect between repealing an entire Act and merely repealing a single clause in an Act. It may no doubt be said that, if a clause. is repealed, `this clause is to lie taken as if it had never existed, but it cannot be said that 'where a particular clause in an Act is repealed, the whole Act must be read as if that clause had never been enacted'. For every Act of Parliament is in the first instance to be looked at as an entirety, and is to be construed ex visceribus actus. Therefore a Court of law is entitled to look at the repealed portion of an Act to see what is the meaning of what remains of the Act, otherwise this consequence would follow that an Act of Parliament, which at one time had one meaning, would by the repeal of some one clause in it have some other meaning'. In the same case Cotton, L. J. said: 'The effect of this (repeal) is that the portion of the Schedule (to 52 Geo. 3, c. 150) so repealed is no longer operative for the purpose of imposing any tax. But for the purpose of construing words of reference, that is, for the purpose of seeing what is meant by the words in the tail of the Schedule, 'all other waters', etc., I am of opinion that we must look at what goes before, though no longer operative. See Attorney‑General v. Lamplough (1878) 3 Ex. D 214; Kelly C. B. at p. 233 and Bramwell, L. J., at p. 227; Denning, J., in Chapman v. Kirke (1948) 2 K B 450, 455; Somervell, L. J.; in Smith v. London Transport Executive (1949) 2 A E R 295 (304)." I may also quote the following observation from Halsbury's Laws of England, Volume 31, Hailsham Edition, in paragraph 591 at page 477: "A definition section does not necessarily apply in all the possible contexts in which a word may be found in the statute. If a defined expression is used in a context to which the definition will not fit, it may be interpreted according to its ordinary meaning. (See Meuz v. Jacobs (1875 L R H L 481 (493)) )". I may now turn to another observation in paragraph 626 at page 493 of the same volume, which runs thus: "Mere amending provisions should not be interpreted so as to alter completely the character of the principal law, unless clear language is found indicating such an intention. (See Union of South Africa Minister of Railways and Harbours v. Simmer and Jack Proprietary Mines 1918 A C 591 (596))." If one pauses here for a moment, one is driven to the conclusion that if it had been intended that the altered definitions would become applicable to Articles 27 and 31 of the Order, it should have been clearly stated in the said Articles upon removing the sign posts pointing to a contrary direction. If we now turn to the definition of "local council" as given in clause (24) of Art. 3 of the Order, it would be noticed that this clause has been left intact. It defines "Local Council" to mean a council constituted under this Order, and includes a Town Committee and a Union Committee, but does not include any such committee as is mentioned in Article

30. Chapter VI, which embodies Articles 27 and 31, clearly points, in its sub‑title and heading, that powers are being conferred by that Chapter on "Local Councils" only. If one turns to sub‑clause (24), it would be evident that the "Local Councils", according to the scheme of the order, mean a composite hierarchy of bodies which have been created under the Order itself. Conversely, it must mean that any other kinds of bodies created by some other law, namely such as are created by section 57 are not "Local Councils" because they are not created by the Order itself. If we now turn to Article 9, the only alteration that has been effected is in the margin where only the words "to be constituted" have been deleted and the rest of the Article has, been left intact. Therefore, the position still remains that "Local Councils" must mean "Union Councils", "Union Committees", "Town Committees", "Thana Councils", "District Councils" and "Divisional Councils" constituted under the Order in accordance with the definition of "Local Council" in clause (24) of Article

3. The Question is: Do the expressions "Union Council", or "Town Committee" in Articles 27 and 31 attract the meaning as re?defined in the substituted clause (51), (53) and (54) of Article 3 without saying anything that the said expressions would have a new meaning in Articles 27 and 31 or do they have the meaning as given in the unrepealed clause (24) of Article 3? It seems that the definition of "Local Council" as given in Article 3(A) must prevail in spite of the omission of the words "to be constituted" in the sub‑heading of Article

9. The words "Local Council" have a composite connotation and this is the basis of the Order. The definition of "Local Council" has remained intact in Article

3. They have remained intact in Article 9 and various other relevant Articles in the Order. It must mean in this context, a "Union Council" etc., in the sense of a "Local Council" as defined in Article 3(24) of the Order since the expression" "Local Council" recurs in Articles 27 and

31. Now, Article 10 of the Order requires that Local Councils be constituted under the said Order. In that Article only the words "to be constituted" have been deleted in regard to "Union Council", "Union Committee" and "Town Committee". It can only mean that such bodies need not be constituted any longer, but nonetheless, their concept with reference to the original scheme of "local councils" has been preserved. I may now, with the above preface, turn to Articles 27 and 31 of the Order in Chapter VI which is headed thus: "Functions of Local Councils". It is sufficient to quote only Article 27 which is couched in a language similar to that of Article

31. It confers powers of local Government on bodies with similar names, as stated above, but specifically described as "Local Councils". Thus runs Article 27: "27‑Civic Functions of Union Councils. "Subject to rules, and such directions as the Government may from time to time give, and within the limits of the funds at its disposal, a Union Council may undertake all or any of the functions enumerated in Part I of the Third Schedule, and such other functions‑ "(a) as are declared by the Government to be appropriate matters for administration by Union Councils generally or by any particular Union Council; or (b) as are delegated by the District Council, with the previous approval in writing of the Commissioner, to Union Councils generally or to any particular Union Council in the District; or (c) as are entrusted to Union Councils under any law for the time being in force." It is parent that the conferment of powers of Local Government by Chapter VI is expressly upon "Local Councils" which mean "Union Councils" etc. , in their original meaning and not in their altered sense. It may be remembered that there is no alteration in Articles 27 and 31 which seek to confer functions of local Government upon "Local Councils". The concept of "Local Councils" persists in the Order. Article 27 obviously refers to "Union Councils" etc., conceived as "Local Councils", and the term "Local Council" supplies the key to the intention of the law‑making body because Chapter VI, which incorporates Articles 27 and 31 and expressly purports to confer functions of local Government on "Local Councils" etc., which mean "Union Councils" etc., in their original sense under the Order. Chapter VI does not confer such functions on a new kind of "Union Councils" etc., constituted under section 57, and now injected into the definition clause, with express reference to the said section

57. Such a conclusion in irresistible when the Article is read, as a whole, in the context of Chapter VI. What is said in respect of Article 27 applies, mutatis mutandis, to Article 31 also. Since Article 27 stands unaltered, as its had emerged at its birth, it must be held that Chapter VI of the Order which is headed by the phrase "Functions of Local Councils", deals with conferment of functions of local Government on Union Councils, Union and Town Committees conceived .as "Local Councils", under the Order, by force of the unrepealed clause (24) of the interpretation clause, that is, Article 3 of the Order. Looking into the repealed provisions which define the aforesaid expressions I am confirmed in the conclusion to which I have reached. Viewed thus, as Chapter VI must be viewed, there cannot be any manner of doubt that Union Councils, Union Committees and Town Committees, as contemplated in Articles 27 and 31, are the "Union Councils," "Union Committees" and "Town Committees" as conceived originally by the Order, that is, bodies known under the generic name of "Local Councils", as defined in the repealed clauses (51), (53) and (54) of Article 3 of the Order. I wish to emphasise here that, in the present discussion, I am simply seeking to ascertain whether Articles 27 and 31 in Chapter VI of the Order confer functions of Local Government on "Union Councils", "Union Committees" and "Town Committees", viewed as units of "Local Councils" in accordance with the original scheme of the Order. It is clear that bodies constituted under section 57 of the Act do not fit into the context of Chapter VI in accordance, with the unaltered language of Articles 27 and 31 and the over‑all text of the order. It should be remembered that a definition clause is not necessarily applicable every time, the word, so defined in the clause, occurs in the enactment. It should also be further remembered that the entire structure of Chapter VI in relation to Articles 27 and 31 has been left untouched by the 1965 Act and preserved in its maiden condition. Chapter VI, according to its heading, declares, unequivocally, its intention of conferring powers on "Local Councils", a concept which has been perpetuated by Article 3(24). In these circumstances, on principle, and in accordance with logic, the meaning of terms used in Articles 27 and 31 of the Order must be the same as they had originally received, notwithstanding subsequent amendments in the definition clauses. In spite of amended definitions in the interpretation clause, the' text and context of Articles 27 and 31 have remained the same as before. Even if the meaning of "Union Councils", "Union Committees" and "Town Committees" has changed in the definition clauses the conferment of power under Chapter VI, has no reference to these bodies when there is no change in the language and structure of the said Chapter by which the altered symbols may be imported therein in order to give a new meaning to old words which have survived since their inception in the Order. There is no provision in the Order from which it may be inferred that the altered bodies are being invested with functions of Local Government. It must, therefore, be held that the 1965 Act does not, in spite of changed definitions, confer power of local Government upon Union Councils, Union and Town Committees set up by section 57 of the Act. Non‑conferment of such function of Local Government would furnish a stronger ground for holding that section 57 is hit by the doctrine of abdication of legislative power. But, I have already held that section 57 is ultra vires of the Constitution, even if one holds that the 1965 Act has conferred powers and functions of Local Government on bodies constituted by section 57 because, what has been done by it constitutes, by itself, an unconstitutional and illegal delegation of legislative functions. Before taking leave of the topic in the preceding paragraphs I would like to answer an argument to the effect that the Court should, in interpreting the 1965 Act, lean in favour of maintaining its legality. I am not declaring it to be illegal and I may add that the vires of the 1965 Act has not been impeached before us. The Court is merely concerned in construing its meaning in so far as it has emerged in the text of the Order. In the preamble a pious declaration has been made that it is necessary to further amend the Order for the purpose of conferring functions of local Government on members of the Electoral College. If the text of the Order do not spell any such conferment, a pious declaration' in the preamble cannot do so. Besides, it is obvious that the scheme is to bring about such a resit by piece‑meal and ad hoc devices in a gradual and graduated process. A similar declaration finds place in section 57 of the Act without actually conferring such functions. Such powers may yet be conferred by provisions which may be made in future. We are now concerned only in construing what has emerged so far from the legislative anvil. The next point that has been urged is that section 57 of the Act is ultra vires the Constitution because it is a legislation in respect of a matter, that is, "Local Government", outside the items enumerated in the Third Schedule, without compliance with the requirement of Article 131(2), which is applicable when the Central Legislature purports to legislate in respect of an item not enumerated in the Third Schedule. It is submitted that in the absence of a resolution by the Provincial Government in accordance with clause (3) of Article 131 there must be a compulsory compliance with a constitutional (requirement), namely, an express declaration under Article 131(2). Article 131(2) runs thus: "Where the national interest of Pakistan in relation to‑

(a) the security of Pakistan, including the economic and financial stability of Pakistan; (b) planning or co‑ordination; or (c) the achievement of uniformity icy respect of any matter in different parts of Pakistan, so requires, the Central Legislature shall have power to make laws (including laws having extra‑territorial operation) for the whole or any part of Pakistan with respect to any matter not enumerated in the Third Schedule." It cannot be said that the Central Legislature cannot, in any circumstance, legislate in respect of an item not enumerated in the Third Schedule. There is no inherent incompetency to legislate in a field outside the Third Schedule. The Central Legislature is competent to do so, but only in the circumstances mentioned in clause (2) of Article 131, as set out above. The Central Legislature is, therefore, called upon to elect the clause or clauses in Article 131(2) under which it wishes to move the subject (outside the items listed in the Third Schedule) into the field of the Central Legislature. Matters outside the Third Schedule require that the Central Legislature must declare the clause or clauses in Article 131(2) under which it chooses to legislate in respect of such items as are not mentioned in the Third Schedule. If it decides to act under sub‑clause (c) of clause (2) of Article 131, the Central Legislature, under the aforesaid uniformity clause, must pre‑empt to remove the subject‑matter to its exclusive legislative field. The power to legislate with regard to items, not specified in the Third Schedule, for the sake of uniformity in legislation, in the national interest of the country, would become a rope of sand if the Provincial Legislature also is allowed to compete with the Central Legislature in the same field. There can be no uniformity unless the Central Legislature exclusively legislates on the subject under Article 131(2)(c). Section 57 of the Act is, ex facie, a piece of legislation in respect of an item not enumerated in the Third Schedule. Section 57 cannot be enacted unless the Central Legislature removes the enactment by pre‑emption into the field of Central Legislature by acting under sub‑clause (c) of clause (2) of Article 131 of the Constitution or unless the Central Legislature has been so authorised by the Provincial Legislature under clause (3) of the said Article. In this connection, it may be asked: Ts it necessary that the Central Legislature must expressly state that it is electing to act under sub‑clause (c) of clause (2) of Article 131 of the Constitu?tion having regard to the fact that Article 131(2), in terms, does not expressly require such a declaration? The Central Legislature has done so in respect of the 1965 Act. I have indicated that implicit in the provision of Article 131(2) is the requirement of expressly electing the category, in the trichotomy of grounds, under which the Legislature is purporting to legislate in a field outside the Third Schedule. It is particularly necessary to do so, if the legislation is one under sub‑clause (c) of clause (2) of Article

131. In Chittagong Mercantile Employees' Association v. Chairman, Industrial Court, East Pakistan (P L D 1963 Dacca 856), a point was raised as to whether the Industrial Disputes Ordinance (LVI of 1959) was within the competency of the Central Legislature because "industrial dispute" was not enumerated in the Third Schedule. Attention was drawn to the fact that the Central Legislature, in accordance with its express declaration, had elected to legislate on this subject in the national interest in relation to achievement of uniformity within the meaning of clause (2) of Article

131. The Court had also pointed out that in accordance with Article 131(2) the Central Legislature could legislate in a field outside the Third Schedule. In Manzoor Ahmad v. Commissioner, Lahore Division (P L D 1964 Lah. 194) this point was discussed at a substantial length. The ques?tion arose in respect of certain amendments of criminal law effected by the Provincial Legislature. It was argued that Criminal Procedure being a central law, the Provincial Legislature was no longer competent to legislate in the field. The Division Bench of the West Pakistan High Court, which heard the case, pointed out that the present Constitution bad done away with the trichotomy of legislative competency in the distribution of subjects as contemplated in the late Constitution of 1956. The three‑fold, Central, concurrent and Provincial Legislative items were no longer is the Constitution as in the 1956 Constitution or in the Constitution Act of 1935. The present Constitution has merely provided two legislative lists, the first being Central List in respect of matters enumerated in the Third Schedule and the other being the residuary items, not enumerated in the Third Schedule, constituting the field of Provincial Legislature. These are the provisions of Articles 131 and 132 of the Constitution. It was, therefore, held that the Central Legislate not having elected under Article 131(2) to legislate in the field of criminal law, which has now become a Provincial subject, can enact the impugned laws. It is important to notice, in this connection, that the Constitution has consciously done away with the three‑fold division of legislative functions such as Central, Concurrent and Provincial Legislative items. It has wiped out the trichotomy of legislative lists as were provided in the Government of India Act, 1935 and in the late Constitution of 1956. It follows that the Constitution has tried to confine legislation to two defined channels, namely, the Central Legislature and the Provincial Legislature in order to ensure fixty of legislative machineries and to avoid confusion and laxity in legislative competency. It is reasonable to infer that the intention, seems to be that when the Central Legislature removes into its domain, any matter relating to items not enumerated in the Third Schedule (matters which otherwise would constitute the field of Provincial Legislature) under Article 131(2), it would become the exclusive business of the Central Legislature to enact laws with regard to the subject‑matter of the specific legislation which it arrogates to itself under the said clause (2) of Article

131. This must be so when the Central Legislature elects to legislate under sub‑clause (c) of Article 131(2) of the Constitution for the sake of uniformity of legislation with regard to a particular subject-?matter which has been pre‑empted by the Central Legislature under the uniformity clause. There can be no uniformity unless the said subject‑matter becomes the exclusive field of the Central Legislature. Therefore implicit in the provision of sub‑clause (c) of Article 131(2) is the requirement that matter moved into the Central Legislature under Article 131(2)(c) must become the exclusive field of the said Legislature. As a further necessary corollary it must be held that this result must be achieved by' conscious option and by express declaration to that effect. The necessity for an express declaration under Article 131(2)(c) must also lead to a further necessity, namely, that the Central Legislature must also, by such express declaration, act under Article 131(2) because of three distinct categories mentioned in clause (2) of Article 131, which in spite of its silence, in this behalf, dictates such a course. In the case reported in P L D 1963 Dacca 856 it was held that the Central Legislature had acted under clause (c) of sub-?Article (2) of Article 131 by express declaration and had, in fact, enacted the impugned Industrial Disputes Ordinance under a power which it had arrogated to itself under the said Article 131(2). In Manzoor Ahmed v. Commissioner, Lahore, as I have already noticed, the validity of West Pakistan Criminal Law (Amendment) Act was challenged on the ground that criminal law which had been enacted earlier by the Central Legislature in the Concurrent field could not be amended by the Provincial Legislature. In an elaborate judgment the High Court held that the earlier trichotomy of legislative functions had rested on an entirely different scheme in the former Constitutions and that under the present Constitution it has become a Provincial subject. It was further observed that the Central Legislature did not declare an option that criminal law had become, in the national interest, and, under the uniformity clause, a Central subject. Inferentially the aforesaid decision of the West Pakistan High Court must, conversely, mean that if the Central Legislature had pre‑empted the subject‑matter of legislation and had removed the same to itself under Article 131(2)(c), the said subject matter would have become the exclusive field of the Central Legislature. The aforesaid decisions further imply that the election to legislate by the Central Legislature has to be specifically stated. Professor Ralph Braibanti of the Yale University, in a specially contributed Article in `Asian Survey' in its February issue of 1965, under the caption, "Pakistan; Constitutional issues in 1964", has thus discussed the above‑mentioned cases at page 84: "Apparently, the doctrine thus enunciated was that when the Central Government declares a subject to be within the national interest doctrine of Article 131 and when the statute so specificies, there is no question as to the supremacy of national legislation. Professor Braibanti goes on to say: "In 1964, the West Pakistan High Court dealt somewhat more comprehensively with the issue of allocation of powers in an eight‑page judgment Manzoor Ahmad v. Commissioner, Lahore Division. In this case, the validity of the West Pakistan Criminal Law (Amendment) Act was challenged on the ground that criminal law had already been enacted by earlier Central Government as a concurrent power and therefore the Provincial Government did not have the power to enact in a federal field. The judgment made quite clear that the earlier division of powers in the 1962 Constitution "rests on an entirely different basis". Under the 1962 Constitution, criminal law is not enumerated as a Central Government power; therefore, it is presumably left to the provinces. The High Court noted that the Central Government had not declared criminal law as a central power under the national interest doctrines of Article

131. The implication here may be that the Central Government's power to legislate in the national interest must be first declared, or that power becomes a Provincial power. The provinces, by virtue of the residual doctrines, have such powers as agriculture, education, commerce, industry, land and inland water transportation, law and order, water and power development. May these powers be pre‑empted by the Central Government even if already exercised by the provinces if the centre invokes Article 131 ? Presumably so, since the Chittagong decision, the Central Legislature moved Industrial Disputes to the ambit of Central Government control." After expressing the view, in a review of the aforesaid cases, that the implication of the above noted decision may well be that it is necessary to state expressly that Central Legislature is acting expressly under Article 131(2) the learned writer further observes: "While the High Courts, at least, have given some definition to the nature of Article 131 and its effect on Central-?Provincial relations. The Supreme Court has not yet ruled on this issue and a `classic' judgment remains to be issued." The awaited "classic" judgment of the Supreme Court is, in the first instance, with regard to the question as to whether the exercise of a pre‑emption under clause (c) of Article 131(2) involves exclusion of the Provincial Legislature and secondly, whether the election to remove the subject into the central field has to be expressly declared as a matter of consequential and, impliedly necessary, constitutional form. I have already indicated that the election to pass a legislation in the national interest for the sake of uniformity of legislation necessarily presupposes an express statement to that effect for, otherwise clause (2)(c) of Article 131 would become ineffective. Uniformity demands exclusive jurisdiction and, to that end, there must be a specific declaration so that the Provincial Legislature may keep off the grass. Without such express declaration Article 131(2)(c) may become nugatory. It would now be noticed that conferment of Local Government functions is ex facie a subject of Provincial Legislation which can become an exclusively central item only under Article 131(2)(c) because sub‑clause (a) and (b) are inapplicable. Therefore, the Central Government has to elect or pre‑empt, expressly, the subject‑matter and move it from the Provincial field to the Central domain. It follows that in order to enable the Central Legislature to enact section 57, the necessary, although by implication, but, nonetheless, necessary formality, which must be observed by the Central Legislature, as a mandate of the Constitution is that it must declare its pre‑emption. This is not a matter of mere form but an inescapable concomitant of Article 131(2). It should be remembered that the formality has become, by implication a Constitutional requirement and such formality is directed towards an essential and important end. The Central Legislature has not done so as it has done in respect of the 1965 Act when purporting to amend the Order. Section 57 is therefore unconstitutional on that ground. The next question is: Does Article 133 of the Constitution bar such an enquiry? Article 133 has received judicial interpretation in two decisions, namely, Md. Abdul Haque v. Fazlul Quader Chowdhury (P L D 1963 Dacca 669), decided by a Special Bench of this Court, and on appeal, in Fazlul Quader Chowdhury v. Muhammad Abdul Plaque (PLD1963 SC486), decided by the Supreme Court of Pakistan. In that case the question was with regard to the legality of an order of the President, under the "removal of difficulty" clause of the Con3'titution under clause (3) of Article 224 thereof, allowing Ministers of Central and Provincial Governments to retain their seats in the Legislatures. It was held that to do so would amount to amending the Constitution which could not be so amended under Article 224(3). The impugned order was declared to be ultra vires the Constitution. On the questions whether a law made under Article 224(3) could be challenged in the Courts and whether such an investi?gation by the Court was barred under Article 133 of the Constitution, the High Court, in a Special Bench, held that the said Article 133 did not bar an enquiry as to whether a law that had been passed was in contravention of the Constitution. With regard to Article 133 the Special Bench observed as follows : ?????????? "The power to make laws as mentioned in Article 133(2) is a subject‑wise power in the distribution of the legislative field in the Central and Provincial Legislatures." In the Supreme Court the point was considered in a greater detail. The majority of the Judges of that Court appear to have decided that Article 133 could not be construed to impose any embargo upon the inherent power of the Court to interpret the Constitution and to enforce its provisions. Cornelius, C. J., S. A. Rahman, J. and Fazle‑Akbar, J., held that interpretation of Constitution was a mandatory duty of the Courts under the Constitution and that its enforcement is the inherent prerogative and function of the Judiciary. 1n this behalf Articles 58, 134 and 142 were referred to. After a full discussion of the import of Article 133; Cornelius, C. J., held, in the first place, that the expression "responsibility" in Article 133 was not a "term of art." He further held that, under the Constitution, Article 133 did not spell an ouster of the Court's jurisdiction to enquire into the constitutionality of a legislation. The judgment pronounced by S. A. Rahman, J., is substantially to the same effect although by some what different process of reasoning. Fazle‑Akbar, J., also held that he could not read into Article 133 of the Constitution an intention to put any embargo upon the power of the Judiciary to enquire into the legality of the jurisdiction and in deciding the issue, be quoted extensively the famous observations of Marshall, C. J., in the case of Marbury v. Madison (USSCR2Law Ed.US5‑6p.135). If this assessment and appreciation of the majority decision of the Supreme Court is correct, then it must be held that the Supreme Court has held that there is no embargo whatsoever. I wish to add that I have understood the majority decision of the Supreme Court in the aforesaid case, as given by Cornelius, C. J., S. A. Rahman and Fazle‑Akbar, JJ., to mean that there is nothing in the language of Article 133 which can spell an ouster of the jurisdiction of Courts to examine the constitutionality of an enactment. Although the aforesaid decision was given with reference to the question which was posed to the effect that Article 133 imposed a bar on Court's jurisdiction to adjudicate upon the legality of a law passed by the President under Article 224(3) of the Constitution, the majority opinion in the Supreme Court was by no means confined to that context. In fact, the High Court and also the Supreme Court gave a general interpretation of the import of the said Article

133. In this connection, the entire text of the opinions delivered on this point must be read in order to give a proper and just meaning to what has been said on this seminal issue. I have refrained from quoting, in extenso, from various texts in which such opinions were given, much as I wanted to, so as not to over burden this judgment which has already assumed a substantial volume, particularly, because I am also conscious that this question will, in all probability, receive the attention of the Supreme Court in relation to the former opinions given by the learned Judges of that Court. It is in the interest of uniformity and consistency in constitutional interpretation that a reformulation and re‑statement of the scope of Article 133 is called for. It would be seen that, at least, one of the learned Judges of this Special Bench has read the Supreme Court decision in a different way. I have already said that I have understood the majority opinion of the Supreme Court to say that it is the Court's duty and prerogative to examine the constitutional vires of an enactment and that Article 133 imposes no restriction on the jurisdiction of the Courts to decide this question when it is raised before them. According to this view, the majority in the Supreme Court; has held that, whatever else Article 133 may have done, it does not purport to curb or restrain the power and jurisdiction of the Courts. It will be seen hereafter that my appreciation and appraisal of the majority opinion is consonant to what has been understood by a learned jurist in U. S. A. Since I have myself delivered the opinion of the High Court in what is known as Fazlul Quader Chowdhury's case I may state that in so far as this point was then examined, the High Court held that Article 133 must, of necessity, be confined to the narrowest limit in that it could only bar an enquiry whether a subject fell in the list of subjects assigned to the relevant Legislature with a view to decide the validity of an enactment in respect of its subject‑matter. The view taken by the High Court had found favour with two learned Judges of the Supreme Court, constituting a minority opinion, namely, Kaikaus and Hamoodur Rahman, JJ. The majority of the Judges of the Supreme Court have travelled much further than the distance traversed either by the High Court or by Kaikaus and Hamoodur Rahman, JJ., on further consideration of this vital problem, I am of opinion that I am right in appreciating the majority view expressed and in the Supreme Court, namely that Article 133 does not in any manner, oust the jurisdiction of the Courts to adjudicate the constitutionality of a law, on any ground whatsoever, I have further materials to think that I ‑had not gone far enough and that the Supreme Court, in accordance with what I think to be the majority opinion had, if I may say so with respects, stronger grounds to think that Article 133 was not designed to put any restriction upon the jurisdiction of the Courts. Article 133 does not mention the word "Court". I think that avoidance of the word "Courts" in Article 133 has a great significance and that this circumstance will govern the meaning of sub‑clause (2) of Article

133. With regard to the question as to whether some ouster has to be spelt out of the provisions of Article 133, Kaikaus and Hamoodur Rahman, JJ., have held that the said Article restrains the Court from declaring a law to be bad on the ground that the subject‑matter of the legislation is outside the Third Schedule. I think that both the learned Judges, whose opinion was consonant to the view I had expressed in the High Court, must be taken, to mean, by necessary implication, that the Courts had jurisdiction to adjudicate upon the legality of a legislation if the challenge was not confined merely to the question that the subject‑matter was not within the legislative field of a particular Legislature having regard to the Third Schedule in respect of its items. No further restriction is to be read into Article

133. What is to say, if the enquiry is not limited merely to its subject-?wise jurisdiction, for instance, if it is said that the Legislature has not observed the mandate of the Constitution in complying with the formalities imposed by it is legislating upon a particular subject, the Courts would then give a decision on the constitutionality of the legislation on the ground that the Legislature has or has not complied with such mandatory formalities even if the investigation incidentally involves the question whether the subject‑matter comes within the Third Schedule. Both the learned Judges have said that the ouster cannot be extended any further than this that the restriction is limited only to the enquiry as to the subject‑matter of legislation. Reference to Article 131, in general terms, must be confined, when the entire text of the opinions is read as a whole, to the Third Schedule and nothing has been said by Kaikaus and Hamoodur Rahman, JJ., which can mean that the Court cannot enquire us to whether the Central Legislature is legislating in respect of an item, which is, on the face of it, outside the Third Schedule, has complied with the requirement of Article 131(2). It is patent from the opinions given that reference to Article 131 is to Article 131(1) alone and that the reference to Article 131 is not directed towards clause (2) of Article

131. This is clear from the text of the opinions given by the aforesaid learned Judges Article 133(2) imposes only a limited restraint, namely, when an enactment is challenged merely on the ground that the subject?-matter is outside the Third Schedule, the Court will neither investigate the question nor permit the challenge which is confined to that ground only. The decision should not be extended to an examination as to whether the requirement of Article 131(2) has or has not been complied with. Now, the legislative jurisdiction as to the subject of legislation is a question which is distinct from an enquiry as to whether the Legislature has fulfilled the requirements of the Constitution in order to legislate in regard to the said subject?-matter. In a general way the first question is inter‑connected with the second, but, they constitute separate enquiries. If one has to enquire as to whether constitutional formalities have been observed with regard to a legislative item which is beyond the Third Schedule, the enquiry is specifically directed towards a separate enquiry, although in making such enquiry, one has to look into the Third Schedule. The enquiry begins from this initial point of contact and travels into a different course, namely, whether the mandate of the Constitution with regard to such legislation in the aforesaid field has been fulfilled. The question which is thus posed is not confined to a mere investigation as to whether the subject‑matter is or is not outside the Third Schedule. In fact, the enquiry, under our discussion, begins at this point. Therefore, even having regard to the view taken by Kaikaus and Hamoodur Rahman, JJ., the Court is not debarred from enquiring whether the Central Legislature has complied with the formalities imposed by Article 131(1) of the Constitution. It is one thing to enquire whether the legislative subject?matter is within the Third Schedule and another thing to investigate whether the formalities imposed by the Constitution have been faithfully observed. If the mandate of the Constitution, whether expressly or by necessary implication, is that certain procedure should be followed, it is the duty of the Court to declare a law passed in infringement thereof as unconstitutional. I, therefore, hold that section 57 of the Act is unconstitutional and therefore, void and illegal on the ground that the Central Legislature in enacting the law has failed to comply with the procedure which is the implied requirement of Article 131(2) in respect of an enactment relating to a matter not enumerated in the Third Schedule. I hold it to be so not merely because the subject‑matter is outside the Third Schedule, but because, being so outside, the Legislature has not expressed the declaration required by Article 131(2) with a view to legislate in that field. In reviewing the decisions of the High Court and the Supreme Court in the above‑mentioned case of Fazlul Quader Chowdlrury Prof. Braibanti has observed: "Exactly one month after the Murshed judgment, the Supreme Court handed down a unanimous fifty‑four page judgment, upholding the High Court's decision. "Both the Courts, however, were compelled to deal with another provision of the President's Order (Article 6) which deprived the Courts of the power to judge the validity of the Order. The two Courts dealt with this issue in somewhat different ways, although they concurred in invalidating this ouster of jurisdiction. Significantly, the Supreme Court went beyond the issue of the validity of the President's Order. Declaring that Order null and void, the Supreme Court unequivocally established the principle of the inherent prerogative of the Courts to interpret the Constitution and to review legislation for its constitutionality This cower of judicial review had been in doubt because Article 133 specified that only the Legislature could decide if it had the power to make a law under the Constitution. After a comprehensive examination of this provision, Justice Murshed had concluded that Article 133 was intended to apply only to that section of the Constitution dealing with the distribution of powers between the centre and the two provinces. This view was not overturned by the Supreme Court, but Chief Justice Cornelius placed the matter of the Court's power: " . . . . . on a more general ground, namely, the ground that a written Constitution necessarily connotes the existence of Courts which will, in a graded hierarchy, examine and finally decide the questions which are certain to arise in great number, of whether an act of statutory authority or a law passed by a law‑making authority under the Constitution is, or is not, in contravention of the Constitution." "Each of the remaining four justices wrote concurring opinions; three of these placed even greater emphasis on the power of judicial review. Indeed, the Supreme Court's decision in this case is as much as a land mark in Pakistan's Constitutional development as Marbury v. Madison was in the United States." I may now, with respects, add further grounds in support of the majority view of the Supreme Court, as I have understood it. They may be stated as follows: It will be seen that Article 133(2) makes no reference to Courts whatsoever. The language of Article 133(2) may be quoted thus: "(2) 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." It is significant to note that the word "Court" is conspicuously absent from the aforesaid provision. But, when the Constitution wanted to oust the jurisdiction of the Courts, it has specifically said so. In this behalf I would refer to the provisions of Article 171(2) of the Constitution which run thus: "(2) When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner or by any Court or authority whatso?ever." Then again, clause (3) of Article 171 runs thus: "(3) The validity of anything done by the Commissioner under Articles 160, 161 or 162 shall not be called in question in any manner before or by any Court or authority whatso?ever." The late Constitution of 1956 has also expressly referred to "Court" when its jurisdiction was sought to be ousted. See, for example, Articles 32(3), 37(2), 56(1), 58(3) and 142(5) of the 1956 Constitution. Now, in this back ground when Article 133(2) of the present Constitution does not mention the word "Court" while clauses (2) and (3) of Article 171 specifically mention the term "Court" it should follow that Article 133(2) does not purport to oust the jurisdiction of the Court because this clause, i.e., Article 133(2), does not expressly do so as has been done under clauses (2) and (3) of Article

171. What, then, would be the meaning of Article 133(2) of the Constitution? In answering this question one is not called upon to precisely formulate, in an exhaustive enumeration, the purpose of the said Article. It can be said that, as a matter of verbal construction, the said sub‑Article does not apply specifically to "Court". One may answer the question by reference to Article 133(1) which enjoins the respective Legislatures to perform their duties faithfully, in accordance with the Constitution, and with a sense of "responsibility". I now turn to the text of clause (2) of Article 133 which has taxed legal minds and has posed a pre‑emptory note of interrogation. The first thing that strikes one, in this behalf, is what has already been noticed, namely, that this clause meticulously avoids any specific reference to "Court", whereas in clauses (2) and (3) of Article 171 there is an express and positive reference to it. Why has not the word "Court" been imported into the phraseology of the Constitution in Article 133(2), in clear and unambiguous terms, if the intention was that the jurisdiction of the Court was ousted, as has been done in clauses (2) and (3) of Article 171 ? Why this verbal and textual difference in the language of different clauses in the same Constitution, particularly, when one remembers that the late Constitution also specifically mentioned the word "Court" whenever it wanted that the validity of the enactment should not be justiciable in "Court". It is well‑settled rule of construction of statutes that an express and unequivocal enactment is required for an ouster of the jurisdiction of superior Courts of law. The proposition is well settled. One may refer to Halsbury's Laws of England, Second (Hailsham) Edition, Volume 31, paragraph 645(1) at page 503 and a substantial string of cases mentioned in the footnote thereof. I may refer to Orrin v. Brearey ((1877) 2 Ex. D 346 at 348); Seward v. Vera Cruz ((1884) 10 A C 59) and Attorney‑General v. Boden ((1912) 1 K B 539, 561). Reference may also be made to Craies on Statute Law, Sixth Edition, pages 122,

123. In Coldsack v. Shore ((1950) 1 A E R 276). Evershed M. R. has observed thus at page 277; "The jurisdiction of the King's Courts must not be taken to be excluded unless there is clear language in the statute which is alleged to have that effect." Lord Campbell in Southampton Bridge Co. v. Southampton Board of Health ((1858) 8 E & B 801), has said: "Words should be very strong which are relied upon to take away such power." It is well established that the jurisdiction of the High Court to issue Writs of Certiorari can only be taken by express negative words. (See Halsbury 240 C D, p. 86, para. 1455). This naturally leads to the inference that the language of Article 133(2) does not spell any ouster of Court's jurisdiction. Of course, the phraseology of Articles 6(2) and 8(2) of the Constitution, as they emerged at the birth of the Constitution, is similar. Article 6(2) reads thus: "The validity of a law shall not be called in question on the ground that the law disregards, violates or is otherwise not in accordance with the Principles of Law‑making." Article 8(2) runs thus: "The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such a ground." If clauses 6(2) and 8(2) had not confronted us, there would have been no difficulty whatsoever in holding that by Article 133(2) there has been no ouster of Court's jurisdiction. Such a conclusion would have been consonent to principles of interpretation and in conformity with logic and reason. Articles 6(2) and 8(2), however, present some difficulty which is resolved thus: The meaning of the actual texts of Articles 6(2) and 8(2) has to be ascertained with reference to the context. Both appear in Part II which puts up the sign board in the following terns: "Principles of Law‑making and of Policy". The heading, "Principles of Law‑making and of Policy" points to principles and policies which are intended for the legislative bodies only. The directives are addressed to them. The "Principles of Law‑making" are embedded in Chapter I of the Constitution. Item No. 1 which deals with the first principle, is stated thus: "No law should be repugnant to Islam". It would be noticed that Chapter 2 deals with "Principles of Policy". Article 7(2) in Chapter 2 reads thus: "In so far as the observance of any particular Principle of Policy may be dependent upon resources being available for the purpose, the Principle shall be regarded as being subject to the availability of resources." ??????????? The first few principles, in the "Principles of Policy" deal with "Islamic Way of Life" and runs thus: "(1) The Muslims of Pakistan should be enabled, individually not collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam, and should be provided with facilities whereby they may be enabled to understand the meaning of life according to those principles and concepts. (2) The teaching of the Holy Quran and Islamiat to the Muslims of Pakistan should be compulsory. (3) Unity and observance of Islamic moral standards should be promoted amongst the Muslims of Pakistan. (4)

The second principle deals with National Solidarity and reads as follows: "Parochial, racial, tribal, sectarian and provincial prejudices amongst the citizens should be discouraged." The third principle is stated thus: "Fair treatment to minorities : The legitimate rights and interests of the minorities should be safeguarded, and the members of minorities should be given due opportunity to enter the service of Pakistan." The eight principle is couched in the following terms: "Humane conditions of work:‑Just and humane conditions of work should be provided and children and women should not be employed in vocations unsuited to their age and sex and maternity benefits should be provided for women in employment." If we peruse the context and text of both the above‑mentioned chapters in Part II, the conclusion is irresistible that Part II has been consciously designed to enunciate norms and standards for guidance of the Legislature and other organs and authorities of the State and that they are not intended to be justiciable. Articles 6(2) and 8(2) of the Constitution must be read in their context and when so read, it would become patent that the principles of "law‑making and of policy" are not justiciable and therefore, obviously beyond the reach of the Court. Such a conclusion would not be necessarily warranted if the said Articles, namely, Articles 6(2) and 8(2), are divorced from their context. On the other hand, the scheme of Part II, when read as a whole, would lead to the irresistible conclusion that the principles and policies enumerated in Part II are not intended to be subjected to the scrutiny of the Court. It is true that Articles 6(2) and 8(2) also make no express reference to Court; but the context of the said Articles and the scheme under which they occur in Part II of the Constitution firmly establish that the spell an ouster of Court's jurisdiction. But similar phraseology may receive a different meaning in some other context. In this connection, I have already noticed that Article 133 is located in Part VI of the Constitution which deals with the division of legislative subjects between the Courts and the Provinces and the relationship between them in terms of governmental power. It would be seen that Articles 131 and 132 deal with a division of subjects of legislation between the Central and the Provincial Legislatures. These are matters which have been treated, over a long course of years, as justiciable in a Court of law. In fact, it has been consistently held, across a few centuries, that it is the function and prerogative of the Court to adjudicate upon the legality of a legislation. Whether the legislation comes within the purview of the items which are within the legislative field of the Legislature concerned, has been, indisputably, regarded as a prerogative of the Courts to decide. It would be next seen that Article 134 enjoins that a central law shall prevail over a provincial law and, that the latter, to the extent of the inconsistency, shall be invalid. Obviously, a duty has been cast upon the Court to examine the vires of a provincial law from the point of view stated above. This has also been the unanimous opinion of the Judiciary with regard to the interpretation of Article

134. Similarly, the provisions of Article 142 are justiciable. It would thus appear that the allocation of legislative function assigned to a Legislature in Part VI of the Constitution is justiciable in so far as Articles 134 and 142 are concerned. It cannot be said that the context of Articles 131 and 132 necessarily implies that they are not justiciable. In fact, the matters dealt with therein, have always been regarded as justiciable. The next question is: Has the jurisdiction of the Court been ousted by Article 133(2)? As I have already indicated, the language of clause (2) of Article 133 must be read in its context to give it a meaning. The text and context do not spell any ouster of the Court's jurisdiction by express reference to "Court". But clause (2) states that the validity of a law shall not be questioned on the ground that the Legislature by which it was made had no power to make the law. Whom does this clause seek to prohibit? It need not necessarily be the Court, as there is no express reference to that body. Where then does the incidence of the embargo fail? In this context, one may recall that, under various Provincial and Central Laws, many administrative tribunals and executive bodies are called upon to exercise judicial and quasi‑judicial functions without being a "Court" in the sense in which that term is understood. For instance, licensing bodies, Members of Board of Revenue, Transport Authorities and a host of administrative bodies are called upon to decide issues in relation to a particular legislation and, to that and they assume a judicial function. The legality of relevant law is often questioned and impeached before them. Such bodies are ordinarily entitled to say, in the normal course of their judicial or quasi judicial functions, that they are not bound to follow a law which has been passed by a Legislature which is incompetent to legislate in respect of the subject‑matter of the particular law. Such bodies can ignore an unconstitutional law which is invalid because of the in-competency of the Legislature to make such a law. It is clear that such bodies can no longer refuse to give effect to a law on the ground that, under the Constitution, the Legislature which passed the law was incompetent to do so. It appears that Article 133(2) is undoubtedly applicable to the classes of persons named above. The validity of a legislation cannot now be challenged before and by such bodies or classes of persons. A controversy may be and, often is, raised in a Central or a Provincial Legislature as to whether the subject‑matter is within the competency of the other Legislature. By Article 133(2) a law made by another Legislature cannot be called in question on the ground that the Legislature which made it, had no power to make the law. In this manner it can be conceived that there are a large number of bodies other than the Courts who are concerned with the question as to whether a law has been validity passed. If it is held that the Legislature was incompetent, such bodies would be within their rights not to 'follow a law which is ultra wires the power of the Legislature which had passed it. It is patent that such bodies, as have been mentioned above, are prohibited by Article 133(2) from examining the validity of a law on the ground that the Legislature which had enacted the same, had no power to do so. But, the embargo need not be extended to Courts when there is no mention of the word "Court" in Article 133(2) of the Constitution. I would take leave of the point by observing that provisions of fundamental law would be interpreted so as to avoid Constitutional anarchy if it possible, even by stretching point, to hold that the jurisdiction of the superior Courts to decide whether the requirements of the Constitution have been fulfilled, has not been ousted. A Constitution is a sacrosanct document which must guide the machineries of Government. It is of seminal consequence that its provisions must be faithfully and meticulously followed. It specifically casts the duty of preserving and enforcing the Constitution upon the Courts. Such duty cannot effectively be discharged if the Courts cannot decide that a Legislature has failed to observe the mandamus of the Constitution. In connection with the present case, it will be noticed that in spite of the fact that the Central Legislature has removed the Order into the Central Legislature by express pre‑emption for the sake of national interest and uniformity as stated in the preamble of the 1965 Act, the Provincial Government has passed an Ordinance amending the Order, called the Basic Democracies (East Pakistan Amendment) Ordinance, 1965 published on October 2, 1965, after the enactment of the Central Act, i.e., the said 1965 Act. Where is the uniformity claimed by the Central Legislature? It has been rightly said, that if the jurisdiction of the Court is ousted, they cannot declare a Provincial Law as ultra vires, if it passes a supplementary Army .Act, in addition to the provisions of the Army Act, and penalises infringement of its own provision as a crime. Such a supplementary Army Act of the Provincial Legislature will not be hit by Article

134. It would be a sad thing if the Courts cannot restrain such legislation. Now, has Article 133(2) specifically ousted the jurisdiction of the Courts in this behalf? I now come to the last point which has been canvassed on behalf of the petitioners. It may be stated thus: The East Pakistan Union Councils and Town and Union Committees (Election of Chairmen) Rules, 1965, which were promulgated on the 16th of August 1965, by the Government of East Pakistan, purporting to act in exercise of the powers conferred upon the; said Provincial Government by Article 89, read with clause (5) of Articles 11 and 12 and item No. 3 in the Sixth Schedule of the Basic Democracies Order, 1959, are ultra vires the powers of the Provincial Government. In this connection, it will be seen that Article 89 of the Order as referred to, in the impugned Rules, reads thus: "89(i) The Government may make rules to carry out the purposes of this Order. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in the Sixth Schedule, and all matters incidental, consequential and supplemental thereto." It would be observed that this Article empowers Government to make rules in order "to carry out the purposes of" the Order. It necessarily means that when the Order does not require anything to be done or when it does not impose any mandate, no such rule‑making power is imposed in the Government. In other words, Article 89 of the Order is operative when something is required to be done under the Order. It would be noticed that with regard to the Constitution of Local Councils, Union and Town Committees, no duty, after the amendment of the Order by the 1965 Act is cast upon the Provincial Government to constitute the aforesaid bodies under the said Order. The Union Councils etc., are required to be‑and have been, in fact, constituted under section 57 of the Act. The constitution of such bodies under the said section 57 is specifically recognised as having been so constituted under the said section 57 in the amended definitions of the interpretation clause of the Order. Therefore, it a Chairman of such a body has to be elected, the election to such office must be held either under section 57 or some other law authorising such election and not under the rule‑making power given by the Order. Besides, Article 10, as amended, runs thus: "As soon as may be, the Local Councils mentioned in sub-?clauses (ii), (iii) and (iv) in Article 9 shall be constituted in accordance with the provisions of this Order." This means that Union Councils, Town Committees or Union Committees need not, any longer, be constituted under the Order. The requirement to constitute Union Councils, Town Committees and Union Committees is omitted in Article

10. Evidently, the deletion has reference to the fact that, under the revised scheme, Union Councils, Town Committees and Union Committees are required to be constituted under section 57 of the Act and not under the Order. Under Article 10, consequent upon its amendment, the requirement is only to constitute Thana Councils, District Councils and Divisional Councils. Union Councils etc. as mentioned in sub‑clause (1) in Article 9 have been omitted in Article 10 for the simple reason that they have been already constituted under section 57 of the Act. The substituted definitions of "Union Council", "Town Committee" and "Union Committee" as in clauses (54), (51) and (53) of Article 3 of the Order refer to the aforesaid bodies which are specifically stated to be constituted under section 57 as stated above. The result is, that, inasmuch as, under the Basic Democracies Order, there is no requirement to constitute Union Councils, Town Committees and Union Committees, it must follow that the aforesaid Article 89 of the Order neither requires nor permits any rules to be framed by the Government under the said Article for framing the impugned rules as mentioned above. The impugned rules, namely, the East Pakistan Union Councils and Town and Union Committees (Election of Chairmen) Rules, 1965, is, therefore, ultra vires the powers of the Provincial Government under Article 89 of the Order. It would next be seen that in Articles 11 and 12 of the Order, under which the impugned rules have been framed, clause (i) of both Articles has been repealed. Clause (1) of Article 11 used to run thus: "11(1) Union Council shall, subject to the other provision of this Article, consist of such number of elected members as may be fixed by the Commissioner." This has been advisedly omitted because Union Councils etc., need no longer be constituted under the Order, having been already constituted under another law. Clause (1) of Article 12 used to be couched in the following terms: "12(1) A Town Committee or a Union Committee shall subject to the other provisions of this Article, consist of such number of elected members as may be fixed‑ "(a) in the case of the Union Committees within the jurisdiction of the Municipal Bodies or Cantonment Boards at Karachi, Dacca and Lahore by the Government; and (b) in all other cases, by the Commissioner:" It will again be noticed that clause (1) of Article 12 has been repealed because a Town Committee or a Union Committee does not require to be constituted any longer under the 'Order. Therefore, the question of Electing Chairman to the aforesaid bodies under the Basic Democracies Order does not arise at all. Under clause (5) of Article 11 or of Article 12 there cannot be any question, after the passing of Act XVI of 1965, of Electing a Chairman to a Union Council, Town or Union Committee because such bodies are no longer formed under the Order. It necessarily follows that Union Councils, Town and Union Committees, mentioned in clause (5) of Articles 11 and 12 necessarily point to such bodies constituted under the Order, and not under section

57. The newly introduced definition of sub‑clauses (51) and (54) by way of amendment made by the 1965 Act do fit into clause (5) of either Article 11 or 12 of the Order where Union Councils, Union and Town Committees have been mentioned with reference to their being components of "Local Councils", as indicated by the beading of Chapter III of Part II. We may now turn to item 3 of the Sixth Schedule of the Order. Item 3 in the Sixth Schedule runs thus: "Election of Chairman". This item, namely, item 3 of the Sixth Schedule, used to supply power to Government to frame the rules with regard to it. Now, item 3 in the Sixth Schedule, has been repealed by the 1965 Act. No rule can be framed under, the said item which does not exist any longer. Item 3 in the Sixth Schedule has been replaced because it has now, in the aforesaid premises, become redundant. It was not redundant prior to the enactment of the 1965 Act. It has been further argued, on behalf of the petitioners, that item 3 of the Sixth Schedule, as stated above, has been purposely repealed because in respect of the members of the Electoral College, upon which functions of Local Government are to be assigned, under clause (4) of Article 158 of the Constitution, the election of a Chairmen in respect of such group must be made by provision of law. I have already quoted clause (4) of Article 158 and have also noticed that the said clause (4) requires that whatever provision has to be made for conferment of such functions on members of the Electoral College "must be made by law". There is, therefore, great force in the argument that any provision directed towards the composition and constitution of bodies, from amongst the members of the Electoral College, with a view to confer functions of Local Government on them, must be made by law as required by Article 158 (4) of the Constitution It is unnecessary to give a final opinion on this question because I have already held that rule‑making power, under Article 89 of the Order, cannot be now exercised under the Order itself, with regard to the election of a Chairman of Union Council, Town Committee or Union Committee as it is no longer required to be constituted under the Order. As the aforesaid bodies have been constituted by another law, and not under the Order, election of Chairmen of such bodies is no longer the concern of the Order. It must be held that Articles 89, 11(5) and 12(5), under which the impugned rules have been expressly framed, are no longer available for purposes of electing Chairmen of bodies which are not constituted under the Order. In the premises stated above, I hold that the East Pakistan Union Councils and Town and Union Committees (Election of Chairman) Rules, 1965, is ultra vires the powers of the Government of East Pakistan, under the Order, and is, therefore, on that account, without lawful authority and of no legal effect. The result is that elections held under the said rules are also without lawful authority and consequently, of no legal effect. The findings at which I have arrived may be assumed up thus: (i) Section 57 of the Act is ultra vires because the Central Legislature has delegated legislative function to the Provincial Government beyond the permissible limits of such delegation without any formulation of principles and policies for the guidance of its delegate. This is the position even if it is held that Act XVI of 1965 has conferred functions of Local Government to bodies set up under section 57 of the Act when the said Act and the said section are read together. (ii) Legislation is the exclusive function of the Legislature which must alone discharge the duty imposed on it. But, if it becomes necessary to delegate to an extraneous body the auxiliary function of executing the principles and policies formulated by the Legislature, it may do so, if it cannot itself conveniently discharge that function. The condition sine qua non is that it must enunciate the policy to guide the matter so delegated. (iii) It must be held, a fortiorari, that it must he so (that is, abdication of legislative function is not permissible), if Act XVI of 1965 has not succeeded in conferring any such function of Local Government on bodies constituted under section 57. (iv) Although there is no specific requirement, under Article 131(2) of the Constitution, that the Central Legislature must, by an express declaration, assume power under Article 131(2) to legislate in respect of a matter not enumerated in the Third Schedule. Such an express declaration is, by necessary implication, a requirement of Article 131(2). It is a formality which must be observed otherwise Article 131(2) might become nugatory. (v) That the Court is not debarred from inquiring into the constitutionality of a legislation on the ground that the Central Legislature, when legislating in a field outside the Third Schedule, has not expressly declared that it is acting under Article 131(2). This point rests on the contention that, by necessary implication of Article 131(2), the Central Legislature can legislate in respect of matter outside the Third Schedule either by (a) an express declaration that it has assumed power under Article 131(2) or (b) a resolution in terms of Article 131(3). (vi) Article 133(2) does not bar such an inquiry even if it is held that the prohibition of Article 131(2) is confined only to an inquiry as to the subject‑wise distribution of powers between the two Legislatures. If the inquiry proceeds further then a mere examination of the Third Schedule the Court must decide the issue. (vii) If it is held that Article 133(2) does not put any embargo upon the jurisdiction of superior Courts to enquire into the constitutionality of an enactment, no question as to ouster of jurisdiction arises. (viii) If the text of Article 133(2) is compared with the language of Articles 6(2) and 8(2) it would appear from the context that the latter is not justiciable whereas there is nothing in the context of Part VI of the Constitution, where the said clause (2) of Article 133 occurs, that the subject in question is not justiciable. On the contrary, for a long period of years, the competency of the Legislature, has been considered to be justiciable. Besides, Articles 134 and 142 undoubtedly refer to justiciable matters. It appears that Article 133(2) is intended to restrict bodies, other than a "Court", when such bodies exercise judicial and quasi‑judicial functions or are vested with the task of administering any law. This is particularly so because Article 133(2) does not expressly mention the word "Court" while it is mentioned in clauses (2) and (3) of Article 171. (ix) An expression defined in the interpretation clause may have another meaning in a section when the context points to a different meaning. (x) When a portion of a statute is repealed or substituted for something else, the part, which is unrepealed, would be construed in the context of the entire Act and the repealed portion may be looked into for construing the meaning of the unrepealed part. (xi) The East Pakistan Union Councils and Town and Town Committees (Election of Chairmen) Rules, 1965 is ultra vires the powers of the Government under the Basic Democracies Order, because no duty is cast by the said Order to constitute such bodies under it. The Chairmen should be elected under some other law and not under the Order. Before parting with this case I am called upon to advert to a decision of a Special Bench of this Court, given on the 21st September 1965, in respect of Petitions Nos. 360, 366, 373, 376, 391, 398, 402 to 404, 412 to 419 and 424 of 1965 in which a number of notifications made under the above‑mentioned section 57 were challenged as illegal. At the hearing of the aforesaid petitions, none of the points decided in the present cases was mooted, except that it was generally urged that section 57 amounted to excessive delegation of legislative function. Except for the last mentioned point, which appears to be casually pressed, no decision was given on the points decided by us in these cases. I may point out, at the very outset, that a decision is an authority for points specifically stated and decided and not for incidental observations therein. In the judgment of the Special Bench, referred to above, the Court itself formulated three points for determination, namely, (i) Whether the section 57 of the ‑Electoral College Act, 1964 is ultra vires of the Central Legislature? (ii) Whether by the said section 57, the Provincial Government has been authorised to constitute the new Union Councils, Union Committees and Town Committees? and (iii) Whether alterations made, under the said section, that is, section 57, have been made in mala fide? 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. With regard to the other two points as stated above, the arguments and the decision thereon, proceeded on points which were different from those that have been raised in these petitions. Any other observation, which might have been casually made in the aforesaid decision would be governed by the decision of this Special Bench. SATTAR, J.‑I have heard the judgment delivered by the learned Chief Justice but, with due deference to him, regret my inability to agree with it. Before, however, I proceed to state my reasons therefore, I feel that it is necessary to state my reasons therefore, I feel that it is necessary to state certain facts. The Electoral College Act (hereinafter called the Act) came into force on the 17th April 1964. By section 57 of the said Act, it has been provided that for the purpose of conferring on the members of the Electoral College functions in relation to matters of local Government, the Provincial Government shall arrange the electoral units in the rural and urban areas into groups so that each group is a Union or, as the case may be, a Town, and 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. National Assembly, it appears, thereafter passed Act XVI of 1965 by which certain amendments were made in the Basic Democracies Order and the said Act came into force on and from the 14th August 1965. In making some changes in the Basic Democracies Order (hereinafter called the Order), the definitions of Town, Union, Town Committee, Union Committee and Union Council were changed. By the changed provisions it has been now laid down that these Areas will mean such Areas as are arranged under clause (a) and such Bodies as are constituted under clause (b) of section 57 of the Electoral College Act. It was after this that the Provincial Government, on the 16th August 1965, published notifications purported to be under section 57 of the Electoral College Act in respect of the different districts of East Pakistan by which in the majority of cases the members of the Electoral College were grouped together keeping intact the geographical limits of Union Councils, Town and Union Committees which came into existence as constituted under the Order. But in some cases there were some re‑arrangements as a result of which either some of the Union Councils or Committees totally disappeared or they were formed with some modifications. Some members of the Electoral College who felt aggrieved by these re‑arrangements filed applications under Article 98 of the Constitution challenging the authority of the Provincial Government to do so. These applications were heard by a Special Bench of which I was a member. Two of the points raised before us in the present cases were also urged before that Bench, though the arguments with regard to one of them was somewhat different. The Special Bench negatived all the contentions and discharged the rules. It appears that dates for election of Chairmen in the different Union Councils, Union Committees and Town Committees were fixed and some of the petitioners contested the elections. It is not necessary for me to consider how far those applications which have been filed by unsuccessful contestants and in which the very basis of the notifications of the 16th August. 1965 has been challenged, are competent under Article 98 as this point has not been raised and argued on behalf of the respondents. Each of the petitioners in the present cases has challenged the relevant notification of the 16th August 1965. In some of these cases, the election of Chairmen which took place before the applications were filed has also been challenged. The grounds taken in challenging the notification as well as the election of Chairmen are mainly three: (1) that there has been no conferment of functions in relation to matters of Local Government as contemplated by clause (4) of Article 158 of the Constitution by the law as it stood on the 16th August 1965; (2) that section 57 of the Electoral College Act is ultra vires the Central Legislatures; (3) that by section 57 powers of legislation have been delegated to the Provincial Government and therefore such delegation is illegal. For the sake of convenience, I went to take up the first and the third points together. We have already noticed that before the 16th August 1965, when the notifications in question were published, the Order by which in 1959 functions of Local Government were conferred on certain Bodies formed under that Order, had been amended. The original provisions of the Order laid down how the different tiers of Local Government Bodies were to be constituted. These provisions were to be found in Part II of the Order. By Act XVI of 1965, the vires of which is not under challenge, some of these provisions were amended and definition clauses (50) to (54) of section 3 were altered to mean such Bodies as are constituted under section 57 of the Electoral College Act. Previously these Bodies, namely, Town Committee, Union Committee and Union Council, meant such Bodies as were constituted under the Order. Article 9 of the Order, as amended, enumerates the different classes of Local Councils. This Article reads as follows: "

9. Local Councils. ‑ (1) The Local Councils under this Order shall be the following, that is to say‑‑ (i) a Union Council for a Union in rural areas; and a Town Committee for a Town or a Union Committee for a Union in urban areas; (ii) a Thana Council for a thana in East Pakistan; and a Tahsil Council for a Tahsil in West Pakistan; (iii) a District Council for a District; and (iv) a Divisional Council for a Division." ??????????? It is, therefore, evident that what was done by Act XVI of 1965 is that once Union Councils, Union Committees and Town Committees were formed by the Provincial Government under section 57, they would be regarded as such Bodies under the Order. There can be no dispute that these are the primary or the lowest tier in the hierarchy of the institutions, which, under the law, are to carry on functions of Local Government, as, enumerated therein. For this reference may be made to Articles 27 and 31, of the Order. It is true that the heading of Chapter IV under which these Articles fall is "Functions of Local Councils" and "Local Council" has been defined in clause 24 of section 3 to mean a council constituted under the Order and includes a Town Committee and a Union Committee. It appears that the definition of "local council" has not been changed though one class of local councils, after the amendments made by Act XVI of 1965, was not to be constituted under the Order. This appears to me to be an omission though learned Advocate‑General is not prepared to accept that position. Be that as it may, in my view, this does not affect the position with regard to the conferment of powers of Local Government on members of the Electoral College with, whom the Union Councils, Upion Committees and Town Committees are now to be formed under section 57 as recognised by the Order because powers have been conferred not on Local Councils generally but on the different classes of Local Councils specifically. Can it therefore not be said that so far as the process of conferring functions of Local Government on members of the Electoral College is concerned it was complete when Act XVI of 1965 became the law of the Country? The answer that suggests itself to me is in the affirmative. It has already been noticed that under Act XVI of 1965 the Union Councils, Union and Town Committees that are formed by the Provincial Government with members of the Electoral College become such institutions under the Order. The Legislature, by Act XVI, decided to give recognition to these Bodies formed under section 57 and to adopt them as institutions under the Order. How can it be said then that these institutions have been brought into existence in exercise of the powers given by a delegated piece of legislation? These Bodies received recognition of the Legislature itself and therefore the argument about delegated legislation can have no legs to stand upon. I must be admitted that, in giving effect to the provisions o Article 158(4), the Legislature has followed rather a circuitous path, but that by itself cannot be a good ground for striking down a legislation. It has always been recognised that a Court should lean against holding a law unconstitutional unless such al conclusion is inescapable. There remains to be considered the argument that section 57 is ultra vires the Central Legislature as matters relating to Local Government which indisputably fall within the Provincial field could not be legislated upon by the Central Legislature except under circumstances contemplated by clauses (2) and (3) of Article

131. I have already pointed out in my judgment in the Special Bench cases, mentioned earlier, that the authority for enacting) section 57 may be referable to item 49 read with item 35 of the Third Schedule. I have also said that the vires of a legislation cannot be questioned on the ground that it is outside the legislative field of the Legislature in question because of clause (2) of Article

133. I have carefully considered the learned discussions that have taken place during the hearing of the present cases but have found no reason to change the view that I took earlier. Mr. D. C. Bhattacharjee, who appears for one of the respondents in one of these cases, has argued in this connection that it can be said that, while enacting section 57, the Central Legislature thought that the subject covered by it is a subject which fell in the Third Schedule in view of the provisions of items 35 and 49, and if that view has been taken by the Legislature, it cannot be questioned because of Article 133 of the Constitution. In my opinion, there is substance in this contention. It has been argued that the Central Legislature, in order to claim the protection of Article 133(2), must show that it has complied with the provisions of Article 131, and when the complaint is that these provisions have not been complied with, the Court can enter into the question in spite of Article

133. Article 131 provides that the Central Legislature shall have exclusive power to make laws for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule. It also lays down inter alia that, in the circumstances mentioned in clauses (2) and (3), the Central Legislature will have authority to legislate also in the Provincial field. Article 132 provides that a Provincial Legislature shall have power to make laws for the Province or any part of the Province with respect to any matter other than a matter enumerated in the Third Schedule. Article 133 lays down that the responsibility of deciding, whether a Legislature has power under the; Constitution to make a law, is that of the Legislature itself. Clause (2) of Article 133 then says 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. It is not necessary to enumerate the provisions of clause (3) of Article 133 for the purpose of the present cases. Then Article 134 says that, when a Provincial law is inconsistent with a Central law, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid. In my view, these four Articles must be read together in order to deduces the true import of Article 133, clause (2). In the case of the Central Legislature, with which we are concerned in the instant case, it has jurisdiction not only to legislate upon subjects enumerated in the Third Schedule but also on a subject falling outside it for purposes mentioned in clause (2) or in circumstances enumerated in clause (3). If, therefore, in regard to a law enacted by the Central Legislature relating to a subject outside the Third Schedule, it can be shown that it has fulfilled the conditions or any of them mentioned in clause (2) or it was enacted under circumstances mentioned in clause (3) of Article 131, that law can protect itself by pointing out these provisions, namely, the provisions of clauses (2) and (3) of Article

131. If, however, non‑compliance of these provisions can be a ground for striking down such a law in spite of Article 133, then what is the reason for which this Article has been incorporated in the Constitution? It is said that this Article debars enquiry only into the question whether the subject falls within the Central field or the Provincial field but does not debar an enquiry into non‑compliance with provisions of clauses (2) and (3) of Article

131. This argument is not acceptable to me because I have already pointed out that by complying with the provisions of these clauses the law can protect itself and the protection of Article 133 need not be invoked. If, however, the argument is that both the enquiries are permissible, then acceptance of such an argument will amount to declaring clause (1) of Article 133 redundant and rendering clause (2) of that Article absolutely nugatory. It is true that the ban on judicial review of laws including legislative enactments imposed by Article 133 is not an absolute one. With regard to Acts of Legislatures, exceptions are to be found in Articles 134 and 142, and though I have not examined the position as to whether they are the only ones, there is no doubt in my mind that clause (2) of Article 131 is not one of them. According to me, Article 133 has been designed and incorporated in the Constitution to guard against an objection which can be raised on the basis of Articles 131 and

132. Reliance in this connection on behalf of the petitioners has been placed upon the decision of the Supreme Court in the case of Mr. Fazlul Quader Chowdhury and others v. Mr. Muhammad Abdul Haque (PLD 1963SC486). I pointed out in the Special Bench case that this decision does not support this contention but on the other hand goes counter to it. In this case the question that came up for consideration was: whether an order issued by the President under clause (3) of Article 224 was protected under clause (2) of Article

133. On a careful reading of all the five judgments once again, I feel confirmed in the view I have taken earlier. It has been held unanimously that an order promulgated by the President under clause (3) of Article 224 is not a legislative measure which can claim protection under clause (2) of Article

133. It has further been pointed out that with regard to legislative measures also; in view of some other provisions of the Constitution such as those contained in Articles 134 and 142, it cannot be said that the jurisdiction of the Court to examine their validity if they are said to have gone counter to those provisions is ousted by clause (2) of Article 133. 1 have, however, found no observation in any of the judgments which is against the view that I am taking in this case, namely, that a Central law cannot be challenged merely on the ground that it relates to a subject which is outside the Third Schedule and in enacting it the provisions of clause (2) or (3) have not been complied with. According to me there are v clear observations in four of the judgments which, on the other hand, lend support to this view. S. A. Rahman, J., observed: "With regard to Article 133, the view that prevailed in the High Court was that though the word 'Legislature' according to the definition of that term in Article 242, included 'any authority or person empowered by or under the Constitution to make laws or to issue instruments having the force of law', the Article did not apply to the President acting under clause (3) of Article

224. The word 'Legislature' occurring in this Article was interpreted with reference to the context of the Chapter in which this Article occurs. This Chapter is headed: In a Federal Constitution such as we have there is always a possibility of a conflict between the Central and Provincial Legislatures in the field of Legislation. Article 133 was read in this context and was held confined to the Central and Provincial Legislatures acting in a field where the possibility of a conflict may arise and excluding the President acting under Article 224, clause (3). The provision seems designed to deal with the situations in which power to enact legislation on the part of the Central Legislature, in respect of items mentioned in the Third Schedule to the Constitution, ipay have been exceeded, or encroached upon by the Provincial Legislature, or similar questions are raised in respect of the residuary items regarding which the Provincial Legislature has power to make laws under Article

132. The definition of `Legislature' in Article 242 of the Constitution, is subject to the context, as the opening part of that Article declares. The ouster of Court's jurisdiction to pronounce on the validity of such laws is obviously not complete even by virtue of Article 133 in this respect. Article 134 lays down that when a Provincial law is inconsistent with a Central Law, the latter shall prevail and the former shall to the extent of the inconsis?tency be invalid. A pronouncement in this regard could only be made by a Court of law, as prima facie the Central and Provincial Legislatures would be contesting parties in such a dispute and the opinion of the one as against that of the other could not be allowed to prevail proprio vigore. Article 142 which is in the same Chapter as Article 133, also contemplates judicial review of laws framed by a Provincial Legislature bearing on the subject of Inter‑Provincial Trade. Clause (2) of that Article saves Provincial laws which impose any 'reasonable restriction' in the interest of public order or morality etc., from the mischief of the main provisions of the Article, if the law in question was made with the consent of the President. Obviously the reasonableness of such restrictions would be a justiciable question. Another instance where the Constitution clearly envisages judicial scrutiny of laws is furnished by Article 217 which declares that 'any law which permits a person to own beneficially or possess beneficially, any area of land greater than that which immediately before the enactment of this Constitution he could lawfully have owned beneficially or possessed beneficially, shall be invalid'. Obviously, the validity of such a law could not be adjudicated upon, by the relevant Legislature itself, within the meaning of Article

133. The ban on judicial review of laws imposed by this Article is, therefore, not an absolute one, when its provisions are considered along with other provisions of the Constitution. It seems to me, therefore, that the view taken by the High Court with regard to the scope of Article 133 as excluding the President functioning under clause (3) of Article 224, has a great deal to commend itself. While functioning under that clause the President would not be directly dealing with the passing of legislation on which a possible conflict might arise between the Centre and a Province but would concern himself with the machinery provisions of the Constitution itself." Akbar, J. has said: "It may be asked what do these Articles mean. The answer is that they define the respective field of legislation of the Central and Provincial Legislatures. It also ensures by Article 133(2) that if a Legislature acts in excess of its power, it shall not be questioned by a Court. If the Court finds such law warranted by the Constitution, they are bound to pronounce it valid. They are not to consider whether the effect of their decision will be to annul good law or to uphold the bad one. But if it is said that the effect of the Article 133 is to deprive the superior Courts of their power to see whether the impugned Act violates the Constitution or not, I am unable to accept such contention because I do not look upon the provision made in this Article as one which either in language or in the intention of the Constitution maker was meant to cut down and override the primary rights given to the Courts under Article 58 of the Constitution." Kaikaus, J's. remarks in this connection are in the following terms: "I come now to the objection based on Article

133. I think Articles 131, 132, 133 and 134 have to be read together and the power to make laws referred to in Article 133 is the power to make laws provided for in Articles 131 and

132. The heading of the Part VI which begins with Article 131 is: "Relations between the Centre and the Provinces". Articles 131 to 134 provide for the apportionment of the legislative power as between the Province and the Centre. According to Article 131 the Central Legislature has power to make laws with respect to the items in the Third Schedule. Article 132 provides that the Provincial Legislature has power to make. laws with respect to matters other than those mentioned in the Third Schedule. Article 133 lays down that the responsibility of deciding whether a law is within its power is that of the Legislature itself, and the validity of a law is not to be called in question on the ground that the Legislature had no power to make that law. To me it appears that Article 133 was intended only to prevent an objection on the ground that an exercise of legislative power was not in accord with Article 131 or Article

132. The intention of the framer of the Constitution was that the question as to whether a matter was within the Third Schedule or outside it should not be agitated in the Courts and should be left to the Legislature itself. Had there been no apportionment of legislative functions between the Centre and the Provinces, i.e., if there was only one Legislature in Pakistan I believe Article 133 would not have been put in at all. The words "power to make law" used in Article 133 have reference to the power to make laws in Articles 131 and 132 and have the same connotation in Article 133 as they have in Articles 131 and

132. As I have already said these Articles are to be read together. So construed Article 133 will only bar an enquiry into the question whether a matter was within the Third Schedule or outside it or whether the impugned legislation was inconsistent with Article 131 or

132. All other questions will remain within the jurisdiction of the Courts. Article 134, it may be pointed out, had become necessary because both Legislatures may legislate on the same subject and there has to be some forum for a decision of the question as to which law is to prevail." Hamoodur Rahman, J., has dealt with this question in the following terms: "There is yet another reason why I am unable to accept the contention that clause (2) of . Article 133 is at all attracted to the case of the President's Order No. 34 of 1962. It will be observed that this appears in Part VI of the Constitution, which is under the heading "Relation between the Centre and the Provinces" and it purports to define what are the exclusive fields of legislation of the Centre and the Province respectively and, as such, Article 133 is, in my view, confined to the "Legislatures" referred to in this Chapter, and not to any and every law creating agency. In exercising powers under Article 224(3) the President does not, in my view, act as a Legislature under the Constitution at all. He exercises a power which is distinct and different from the legislative functions contemplated under the Constitution. The legislative powers of the President have been defined in Articles 29 and 30 of the Constitution. Similarly the legislative powers of a Governor have been defined in Article

79. The powers under Article 224 do not relate to the exercise of any of such legislative functions. This is a totally different power given to a sub?-constitutional authority to make adaptations to the Constitution itself. This is not legislation within the meaning of the Constitution. Article 133, therefore, does not have the effect claimed by the learned Attorney‑General. It is not possible to agree with the learned Attorney‑General that any measure which purports to create a law must be a legislative measure within the meaning of Article

133. Article 133 is confined to laws made in the exercise of legislative functions given under the Constitution and does not extend to protect other forms of law. Reading the Constitution as a whole the intention seems to be clear that Article 133 is confined to questions relating to the competency of the Central or the Provincial Legislature or the President or the Governor to make laws with respect to matters in the Legislative List set out in the Third Schedule to the Constitution and does not extend beyond those matters." In my view, the passages, quoted above, clearly indicate that the enquiry into the question raised before us is outside the jurisdiction of a Court. Before I conclude, it is necessary to take note of an argument which was advanced by Mr. Akhtaruddin Ahmed towards the close of the bearing. It has been pointed out that the East Pakistan Union Councils and Town and Union Committees (Election of Chairmen) Rules, 1965 under which the elections of Chairmen in different Union Councils, Town or Union Committees have taken place are ultra vines. Learned counsel has argued that the Authority, under which the above rules were made, was no longer existent on the 16th August 1J05 when they were published in toe Dacca Gazette. Our attention has been drawn in this connection to the omission of item 3 of the Sixth Schedule to the Order which was made by Act XVI of 1965. It is true that by Act XVI of 1965, item 3 which related to election of Chairman and in respect of which rules could be framed by the Provincial Government was omitted. The question that remains to be considered is: Whether because of this omission the Provincial Government was left with no authority to frame rules for election of Chairmen. The rules in question, it will be seen, have been framed in exercise of the powers conferred by Article 89 read with clause (5) of Articles 11 and 12 and item 3 of the Sixth Schedule of the Basic Democracies Order, 1959. Article 89 provides that the Government may make rules to carry out the purposes of the Order. Clause (5) of Articles 11 and 12 specifically lays down that a Union Council and Union and Town Committee shall, in the prescribed manner, elect one of its members to be its Chairman. Now, if reference is made in this connection to the definition of the word "prescribed" in clause (30) of section 3, it will be seen that "prescribed" means "prescribed by rules" and clause (40) of that section says that rules mean "rules made under this Order". It is, therefore, clear that, apart from item 3 of the Sixth Schedule in the body of the Order itself, express authority was given to the Provincial Government to frame rules for the purpose of laying down the procedure for election of Chairmen of Union Councils and Union or Town Committees. How can it be said then that because item 3 was removed from the Sixth Schedule the authority to frame rules was not there? It has been argued in this connection that the manner in which a Chairman of a Union Council or a Town or Union Committee is to be elected was intended to have been given to the Legislature itself because of clause (4) of Article

158. I have given my serious consideration to this argument and I am unable to accept it. If the view that I have already taken is correct that after the amendments made by Act XVI of 1965 the Union Councils, Union or Town Committees formed by the Provincial Government out of th p members of the Electoral College under section 57, would enjoy y the powers given to‑such Bodies under the Basic Democracies Order, then the question of provision by Act of Legislature being made for election of Chairmen does not arise. Let me examine this question from another point of view. The provisions in clause (5) of Articles 11 and 12 were already there from the beginning along with item 3 of the Sixth Schedule. If by an Act of Legislature item 3 only was removed without any other amendment of the Basic Democracies Order, could it be argued that the Provincial Government was not entitled to frame rules with regard to election of Chairmen because item 3 had been removed from the Sixth Schedule? My answer is that such an argument could not be advanced, and if that argument could no be advanced with respect to the original provisions of the Order, how can that he urged with regard to the new position which came into being after the amendments made by Act XVI of 1965? Regard being had to these facts, I am unable to hold that the Rules, referred to above, are ultra vires the Provincial Government. For the reasons stated above, I would discharge these rules but leave the parties to bear their own costs. IDRIS, J.‑I agree with the judgment pronounced by, my Lord, the Chief Justice and I have nothing further to add. SALAHUDDIN AHMAD, J .‑I have had the benefit of listening to the judgment delivered just now by my Lord the Chief Justice and my learned brother Mr. Justice Sattar. I respectfully agree with the judgment pronounced by my Lord the Chief Justice and concur in the orders proposed to be passed by him. I would, however, like to indicate my line of thinking in regard to the interpretation of Article 133, sub‑Article (2), of the Constitution with reference to Articles 131, 132 and 134 thereof and section 57 of the Electoral College Act, 1964. Before I deal with this particular matter, I think it useful to mention that we are dealing with the present petitions under Article 98, sub‑Article (2), of the Constitution. This Article has given certain powers to the High Court which are to be exercised, "subject to this Constitution". On the facts of the present case it means that the power exercisable by the High Court under Article 98 is subject to the provisions of Article 133(2) of the Constitution. It must also be mentioned here that under the Constitution, matters of Local Government are prima facie within the Provincial field of legislation. Section 57 of the Electoral College Act, 1964, which purports to be a law for the purpose of conferring on the members of the Electoral College functions in relation to matters of Local Government and is obviously a legislation owing its source to Article 158(4) of the Constitution, undoubtedly deals with a matter which primarily falls within the Provincial field of legislation. This is one of the reasons why the competency of the Central Legislature which enacted the said section 57 of the Electoral College Act has been challenged before us, not on the limited ground, and confined merely to such ground, that the subject‑matter of the legislation is outside the list specified in the Third Schedule, but on the broad ground that, the said Legislature having failed to state, in express terms, that it purported to act under Article 131(2) of the Constitution, has contravened the implied requirement of the Constitution. The contention is that without such express declaration, Article 131(2) would have no real meaning. I now proceed to consider the meaning and effect of Article 133(2) of the Constitution. The scheme of the Constitution in regard to the distribution of legislative business between the Central and Provincial Legislature can broadly be divided into matters enumerated in the Third Schedule of the Constitution and matters not so enumerated therein. There are pertain exceptions in favour of the Central Legislature regarding its power to legislate on a matter not enumerated in the Third Schedule. These exceptions, however, are subject to the fulfilment of certain conditions mentioned in Article 131(2) and (3). A proper construction of the provisions of Articles 131(2) and 132 of the Constitution leads one to hold that the intention of the author of the Constitution was that the two Legislatures, namely, the Central and the Provincial Legislatures, should primarily confine themselves to their respective fields of legislation mentioned in those provisions. Two of the cardinal principles of interpretation of statutes are that the provisions of the Constitution should be so interpreted as to make the consistent with one another and that no interpretation should be countenanced which will render any provision of the Constitution nugatory. Applying these principles to the interpretation of Articles 131 and 132, the provisions contained therein must be so interpreted as to give free play to the provisions contained in each of the said two Articles. It, therefore, follows that Article 131 particularly, clause (2) thereof, which is relevant for our purpose and Article 132 should not be so construed as to indicate that what the framer of the Constitution has given with one hand he has taken it away with the other. In other words, such construction should be put on the provisions of Article 131 as will not make the provisions of Article 132 entirely nugatory. Let me now consider the provisions of Article 133 of the Constitution against this background., This Article consists of three parts, viz., clauses (1), (2) and (3) thereof. The first part lays the responsibility of deciding whether a Legislature has power under this Constitution to make law or not on that particular Legislature itself. The second, part, which is the part mainly at issue, says: "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 third part, it seems to me that the framer of the Constitution hastened to clear up a possible misconception by saying that nothing said in clause (1) or clause (2) shall be construed to have the effect of taking away, limiting or restricting the power of a High Court exercisable by it under paragraph (c) of clause (2) of Article

98. This clause was introduced by an amendment in 1963. In any event, I would prefer to content myself by saying that Article 133(2) does not contemplate a complete ouster of the jurisdiction of the Superior Courts to consider the constitutionality of a particular legislation. I am supported in my view by a decision of the Supreme Court in the case of Mr. Fazlul Quader Chowdhury v. Abdul Huq (P L D 1963 S G 486). According to my reading of the judgment, there is nothing in the opinions given by the learned Judges of the Supreme Court, which runs counter to the proposition that Article 133(2) does not spell out a total embargo upon the jurisdiction of the Court to consider the constitutionality of a particular legislation and this must be so if the language of Article 133(2), is compared with the language used, for example, in Article 171, sub‑Article (2), of the Constitution. In fact, two of the learned Judges have held that restriction imposed by Article 131(2) is confined only to a challenge that the subject‑matters of the legislation do not fall‑ within the legislative items allocated to the Legislature. It seems to me that the only ouster contemplated under Article 133(2) is an ouster of a particular ground, namely, that the Legislature which made the law had no power to make it. In other words, the only bar that can be spelt out from the provisions of Article 133(2) is that the Court will not enter into the question whether in respect, of the law in question the particular Legislature has travelled outside its field of legislation. Beyond this, there is absolutely no fetters on the jurisdiction of the Court to examine a legislation to find out whether it has conformed to other relevant provisions of the Constitution. This is the utmost that can be said about the implication of Article 133(2). In my opinion, therefore, on the facts of the present case, the Court is competent to enquire as to whether the conditions laid down in Article 131(2) of the Constitution had been complied with or not before the particular law, namely, section 57 of the Electoral College Act, 1963, which prima facie falls within the provincial field of legislation, was enacted by the Central Legislature. It is the plain duty of the Superior Courts as preservers, protectors and defenders of the' Constitution to enquire whether the conditions mentioned in Article 131(2) of the Constitution have been fulfilled by way of an express option to act under the said clause (2) of the Article

131. In order to preserve the scheme of the Constitution intact, it is the duty of the Superior Courts to prevent the Central Legislature from making any undue and uncalled for inroads into the provincial field of legislation, as mentioned in Article 132 of the Constitution, so as not to make its provisions nugatory and ineffective. The power of the Central Legislature to travel outside the Third Schedule of the Constitution must be strictly contained in and confined to the limitations imposed in Article 133, clauses (2) and, (3) and the Superior Courts will jealously guard the frontiers of the respective fields of legislation by insisting upon a formal pre‑emption under Article 131(2) or a resolution under Article 131(3). To sum up, therefore, the conclusion that I have arrived at is that Article 133(2) does not oust the jurisdiction of Superior Courts to examine the constitutionality of a particular legislation. As, however, some meaning and effect have to be given to Article 133(2) of the Constitution the utmost that can be said in respect of that clause of Article 133, is that the Superior Courts, while considering the constitutionality of a law, will not entertain any challenge on the sole ground that the Legislature which made the law had no power to do so. Far from fulfilling the conditions mentioned in Article 131(2), the Central Legislature has made no pretence even to exercise its power under Article 131(2) of the Constitution while enacting section 57 of the Electoral College Act, 1964, in order to justify its legislation in the Provincial field. It is a necessarily implication of Article 131(2) that the option to act under it must be expressly stated, otherwise the provisions of Article 131(2 will lose their effect and purpose. Section 57 must, therefore, be held to be ultra vires of the power of the Central Legislature to legislate. Before I conclude, I wish to refer to a matter contained in the judgment of my learned brother, Mr. Justice Sattar. He has held that the subject‑matter of section 57 of the Electoral College Act is included in the Third Schedule to the Constitution inasmuch as item 35 of the said Schedule, viz.," the Elections to the office of President, to the National Assembly and to the Provincial Assemblies: The Chief Election Commissioner and Election Commission" should be read with item 49, namely, "Matters incidental or ancillary to any matter enumerated in this Schedule". In the aforesaid premises, he has expressed the view that if items 35 and 49, as stated above, are so read together in the Schedule the subject‑matter of section 57 of the Electoral College Act, 1964 would be treated as matters incidental or ancillary to matters contained in item

35. With due respect to my learned brother, I am unable to agree with him. Section 57 of the Electoral College Act deals with an entirely different subject‑matter and the authority to legislate is derived from Article 158(4) of the Constitution. . This Article provides that the members of the Electoral College may be given "functions in relation to matters of local, Government" by a legislation. The law conferring such functions cannot be said to be a matter incidental or ancillary to the matters mentioned in item 35 of the Third Schedule to the Constitution. This is made clear on a reference to the pre‑amble of Act XVI of 1965 of the National Assembly of Pakistan, which reads as follows: "Whereas clause (4) of Article 158 of the Constitution provides that provision may be made by law for conferring on members of the Electoral College functions in relation to matters of local Government; And whereas it is necessary further to amend the Basic Democracies Order, 1959 (P. O. No. 18 of 1959), for conferring on members of the Electoral College the aforesaid functions; "And whereas the national interest of Pakistan in relation to the achievement of uniformity within the meaning of clause (2) of Article 131 of the Constitution requires Central Legislation in the matter;" In my opinion, therefore, the subject‑matter of section 57 of the Electoral College Act, 1964, does not come under any of the items of the Third Schedule of the Constitution. ABDULLA, J.‑I entirely agree with the judgment delivered by the learned Chief Justice. I only intend to add that the plea in bar based on Article 133(2) of the Constitution is not at all available in the present enquiry. I agree with the views expressed in the judgment of the learned Chief Justice regarding the applicability of the bar to an enquiry by the superior Courts. If any meaning is to be given to the embargo imposed by the provisions? of Article 133(2) it may be said that legislation shall not be questioned on the ground of the in-competency of the Legislature (a) in a controversy raised in another Legislature or (b) before any Executive Authority, Administrative body or any public Agency other than a Court, which are called upon to discharge judicial or quasi judicial, function, without being a Court. This view is strengthened by the deliberate omission of the word "Court" in Article 133(2) while that term has been expressly and specifically mentioned in Articles 171(2) and 171(3). Therefore, Article 133(2) means that validity of a legislation shall not be challenged in a forum other than a Court. However, I would point out that in any case, the bar allegedly imposed by Article 133(2) does not arise in a case where the subject of legislation is admittedly outside the field of legislation concerned as indicated by the Constitution on the ground that constitutional formalities have not been observed. The Superior Courts have, obviously, in case of such a challenge, jurisdiction to enquire whether the law satisfied the requirements, of the Constitution. So far as the legislation regarding election to the representative institutions in the country is concerned the Central Legislature's powers are limited by item 35 of the Third Schedule to the elections to the office of the President and to the National and Provincial Assemblies. Local Self Government is, patently beyond the legislative competency of the Centrally Legislature. That this is so and has been accepted as such by the Central Legislature itself is shown by its reliance on the provisions of Article 131(2) of the Constitution when enacting Act XVI of 1965, an Act amending Basic Democracies Order, 1959, by which functions of local Government were sought to be conferred on the Local Councils from amongst the members of the Electoral College under the provisions of section 57 of the Electoral College Act. As contemplated by Article 131(2) of the Constitution Local Self Government is outside the legislative competency of the Central Legislature. However, Central Legislature can legislate on this subject provided the requirements of Article 131(2) are complied with and the superior Courts can enquire whether or not the other requirements have, in fact, been complied with. Therefore, in my opinion, the present enquiry is competent. We are free to adjudicate whether section 57 of the Electoral College Act, which seeks to legislate on the formation and constitution of the Local Councils, is a valid piece of legislation or not. In accordance with the majority opinion, the following order of the Court is passed: The rule obtained by the petitioner in Petition No. 507 of 1965 is made absolute. It is declared that the Notification No. S‑X/1E‑44/65/431 dated the 16th August 1965 constituting Rampur (South) Union Council, is of no legal effect having been made without any lawful authority and it is further declared that the election of Chairman of Rampur (South) Union Council held on 15th August 1965, is void as having been held without any lawful authority and of no legal effect. The rule obtained by the petitioner in Petition No. 508 of 1965 is also made absolute as it relates to the same Union and to the same election regarding which rule in Petition No. 507 of 1965 was issued, which we have made absolute. The rule obtained by the petitioner in Petition No. 509 of 1965 is made absolute. It is declared that the Notification No. S‑X,/E‑44/65/431 dated the 16th August 1965 constituting No. 10 Ibrahimpur Union Council, within P. S. Chandpur, District Comilla, is without lawful authority and of no legal effect. It is further declared that the election of said No. 10 Ibrahim Union Council held on 26th August 1965 is void as having been held without lawful authority and of no legal effect. The rule obtained by the petitioner in Petition No. 510 of 1965 is made absolute. It is declared that the Notification No. S‑X/1E‑44/65/431 dated the 16th August 1965 constituting Subidpur (West) Union Council is without lawful authority and of no legal effect and it is further declared that the election of Chairman held on the 25th August 1965 and 6th of September 1965, for the Subidpur (West) Union Council is void as having been held without lawful authority and of no legal effect. The rule obtained by the petitioner in Petition No. 438 of 1965 is made absolute. It is declared that Notification No. S‑X/1E‑42/65/433 dated the 16th of August 1965, constituting No. V, Enayet Bazar Union Committee is without lawful authority and of no legal effect. It is further declared that the election of the Chairman of said No. V, Enayet Bazar Union Committee, P. S. Kotwali, District Chittagong, held on 26th August 1965, is without lawful authority and of no legal effect. The rule obtained by the petitioner in Petition No. 447 of 1965 is made absolute. It is declared that the Notification No. S‑X/1E‑44/65/431 dated the 16th of August 1965 effecting change in the territorial limit of the South West Union Committee, P. S. Chandpur, District Comilla, and constituting two new Union Committees is without any lawful authority and of no legal effect. It is further declared that the election of the Chairman of South West North and South West South Union Committees under Police Station Chandpur District Comilla is illegal and void and of no legal effect. The rule issued in Petition No. 458 of 1965 is made absolute. It is declared that the Notification No. S‑X/1E‑44/65/431 dated the 16th of August 1965, creating North West Union Committee and North East Union Committee under Chandpur P. S. District Comilla, is void and of no legal effect. It is further declared that the election of the Chairman of North West Union and North East Union Committees under P. S. Chandpur, District Comilla, is declared to have been held without lawful authority and of no legal effect. The rule issued in Petition No. 4‑59 of 1959 is made absolute. The Notification No. S‑X/IE‑54/65/442 dated the 16th of August 1965 effecting change in the territorial limit of the Bogra Municipal Union Committees Nos. 3 and 4 under Police Station Sutrapur, District Bogra, and constituting the new Union Committee is declared to be illegal and without lawful authority and of no legal effect. It is further declared that, the election of the Chairman of Bogra Municipal Union Committees Nos. 3 and 4 under Police Station Sutrapur, District Bogra, is without lawful authority and of no legal effect. The rule issued in Petition No. 463 of 1965 is made absolute. The Notification No. S‑X/1E‑39/65/435 dated the 16th of August 1965 effecting change in the territorial limit of the Deobhog Union Committee under Police Station Narayanganj, District Dacca, is declared to be without lawful authority and of no legal effect. It is further declared that the election of the Chairman of the said Deobhog Union Committee held on the 29th of August 1965 is void as having been held without any lawful authority. The rule obtained by the petitioner in Petition No. 4B0 of 1965 is made absolute. It is declared that the Notification No. S‑X/1E‑39/65/436 dated the 16th August 1965 constituting Bairagadi Union Council is without any lawful authority and of no legal effect. It is further declared that the election of respondent No. 4 Taleb Ali Gazi as Chairman in the Bairagadi Union Council and the consequent order thereon dated 26th August 1965 are void and without lawful authority and of no legal effect. The rule issued in Petition No. 496 of 1965 is made absolute. It is declared that the Notification No. S‑X/1E‑42/65/433 dated the 16th August 1965 effecting change in the territorial limits of the Bagmanoram, Dewanhat, Lalkhan Bazar, Pathantooly and Coshaildanga Union Committees under police station Kotwali and Doublemoorings, District Chittagong, is illegal and void, it is further declared that the election of the Chairmen of Bagmanoram, Dewanhat, Lalkhan Bazar, Pathantooly and Coshaildanga Union Committees under police station Kotwali Doublemoorings, District Chittagong, is without any lawful authority and of no legal effect. Petition No. 493 of 1965 is in the nature of a prayer for a writ of quo warranto. Petitioner challenges the authority by which the respondent claims to be a member of Araisida Union Council and his election to that as Chairman of the said Union Council has also been challenged. The rule in the said petition No. 493 of 1965 is hereby made absolute. Membership of the respondent in the Araishida Union Council and his purported election as Chairman thereof are declared to be without lawful authority and of no legal effect. Similarly, Petition No. 503 of 1965 is also in the nature of a writ of quo warranto. The respondent's purported membership of No. 11 South Madrasha Union Council, under police station Hathazari, District Chittagong and his purported election as Chairman of the said Union Council are declared to be without any lawful authority and of no legal effect. There will be no order as to costs in respect of these applications. On prayer of learned Advocate‑General it is certified that these cases raise substantial questions of law as to the interpretation of the Constitution and therefore, a certificate in accordance with the provisions of Article 58 of the Constitution of the Islamic Republic of Pakistan is granted. Operation of the orders made in the above applications is stayed for a period of five weeks from today. We have all felt with regard to these cases that since they raise very important points of vital consequence to Governmental activities, the questions raised in these cases should be settled with utmost expedition. Learned Advocate‑General has assured this Court that he would do his best for expeditious hearing of the cases and the learned Advocates for the petitioners have given the same assurance. It is, therefore, hoped that an early decision would he obtained by the parties themselves. A. H. ?????????????????????????????????????????????????????????????????????????????????????? Rules made absolute.