P L D 1954 Sind 294 (PLP)

MUHAMMAD BACHAL, J.‑In this case the Plaintiffs are electors to the Sind Legislative Assembly and the Plaintiffs 1 and 2 were elected to the Sind Legislative Assembly in the elections held in 1946. The plaint states that the Governor‑General, by Order No. 13 of 1948, purported to make an amendment to the Government of India Act, 1935, and introduced section 92‑A into the Government of India Act, 1935, which order was illegal and ultra vires. On the 29th December, 1951, the Governor‑General issued a proclamation under section 92‑A. The Governor of Sind who purported to function under the powers given to him from the 1st January, 1952, issued the Sind Legislative Assembly Electroral Rules, 1952 on the 14th August, 1952, which were illegal and ultra vires. The Plaintiffs are the defeated candidates while the defendants are the successful candidate in the elections to the Sind Legislative Assembly held in April‑May 1953 which were illegal. They pray for a declaration that these elections not held according to the proper and legal rules were illegal and invalid and for an injunction restraining the defendants from exercising the right of membership of the Sind Legislative Assembly. The defendants contended that the introduction of section 92‑A and the rules framed by the Governor were legal and that the Federation of Pakistan and the Province of Sind were necessary parties. They challenged the right of the Plaintiffs to file the suit in this Court, and cast the burden of proving that they were electors to the Sind Legislative Assembly on the Plaintiffs. The following issues were framed: (1) Whether the Plaintiffs were electors to the Sind Legislative Assembly for elections held in 1946 and are also electors for the elections held recently ? (2) Have the Plaintiffs locus standi to bring this suit because they are jointly and severally interested in exercising their right of franchise ? (3) Whether the Plaintiffs have a vested interest in ensuring that the Province of Sind is legally governed in accordance with law ? (4) Were the plaintiffs Nos. 1 and 2 members of the Sind Legislative Assembly which was suppressed by a pro clamation issued in the Gazette of Pakistan on 29th December, 1951. (5) Whether the Sind Legislative Assembly was not properly dissolved or. 29th December, 1951 ? (6) Whether the Sind. Legislative Assembly elected in 1946 was not entitled to frame rules and laws for the elections to be held under the Constitution ? (7) Whether section 92‑A of the Government of India Act introduced by Order 13 of 1948 is illegal and ultra vires of the powers of the Governor‑General ? (8) Whether promulgation of section 92‑A by virtue of proclamation issued on 29th December, 1951, by the Governor‑General .and the suppression of the Sind Legisla tive Assembly were lawful under' the aforesaid proclama tion ? (9) Whether by the suppression of the Sind Legislative Assembly two of the Plaintiffs were deprived to act as members of the Sind Legislative Assembly and of their right to participate in framing rules for the new elections and the other plaintiffs were deprived of their legal and democratic right to have themselves represented by their lawfully elected representative in the framing of the rules for election ? (10) Whether the Province of Sind was not properly governed under section 92‑A from 1st January, 1952, till the suppression of the proclamation of the Governor‑General, which introduced section 92‑A regime in the Province of Sind ? (11) Whether the rules framed by the Governor, being the Sind Legislative Assembly Electoral (Elections and Election Petitions) Rules, 1952, contained a provision which in effect caused the elections to be held otherwise than by secret ballot with the result that votes could not be cast freely ? (12) Whether the Sind Legislative Assembly Electoral (Elections and Election Petitions) Rules, 1952, are illegal and ultra vires of the powers of the Governor and whether the defendants have been legally elected to the Sind Legislative Assembly ? (13) Whether the Plaintiffs are estopped from raising the question of legality of section 92‑A and that of the Sind Legislative Assembly Electoral (Elections and Election Petitions) Rules, 1952 ? (14) Whether there can be any estoppel against a statute ? (15) Whether the Federation of Pakistan and the Province of Sind are necessary parties ? (16) Whether there is a cause of action existing which entitled the plaintiffs to bring this suit as shown in the plaint ? (17) Whether the defendants have been lawfully elected and enjoy the status of members of the Sind Legislative Assembly as such ? (18) Whether this Court has jurisdiction to try this suit ? (19) Whether the suit is maintainable ? (20) Whether the suit is bad for non‑joinder of neces sary parties and mis‑joinder of the causes of action? (21) Reliefs. My findings are as follows: Issue No. 1‑Dropped Issue No. 2‑No Issue No. 3‑No Issue No. 4‑Dropped Issue No. 5‑Properly dis‑ Issue No. 6‑No solved. Issue No. 7‑No Issue No. 8‑Yes Issue No. 9‑No Issue No. 10‑Properly governed Issue No. 11‑does not arise in this suit. Issue No. 12 (a) No Issues No. 13 and 14 (b) Yes struck off. Issue No. 15‑No Issue No. 16‑No Issue No. 17‑Yes Issue No. 18‑No Issue No. 19‑No Issue No. 20‑No Issue No. 21 Suit dismissed with costs. Issues Nos. 5 to 12 and 17.‑Section 8(2) . of the Inde pendence Act 1947, provides that each of the new Dominions and all provinces and other parts thereof shall be governed as nearly as may be in accordance with the . Government of India Act,.. 1935; and subject to any express provisions of the Independence Act and orders of the Governor‑General under section 9 of the Act provided that the provisions requiring the Governor‑General or any Governor to act in his discretion. or exercise his individual judgment shall cease. Section 9 of the Act provides: 9. (1) The Governor‑General shall by order make such provisions as appears to him to be necessary or expedient:‑ (a) for bringing the provisions of this Act into effective operation ; (c) for making omissions from, additions to, and adapta tions and modifications of, the Government of India Act, 1935, and the orders in Council, rules and other instruments made there-under, in their application to the separate new Dominions." In exercise of the powers conferred by the said provisions, section 3 (2) of the Governor‑General's Order 22 of 1947 deleted the expressions "in his discretion", "acting in his discretion" and "exercising his individual judgment", from the Government of India Act, 1935, wherever they occurred. Section 45 which had conferred powers on the Governor General and section 93 which had conferred powers on the Governor to issue proclamations in their discretion were accordingly omitted. In exercise of the powers conferred by section 9 of the Independence Act, 1947, section 92‑A was added by section 2 of the Governor‑General's Order 13 of 1948. The section as amended reads as under: Provisions in case of failure of constitutional machinery. "92A. (1) If at any time the Governor‑General is satisfied that a grave emergency exists whereby the peace or security of Pakistan or any part thereof is threatened, or that a situation has arisen in which the Government of a Province cannot be carried on in accordance with the provisions of this Act, he may by proclamation direct the Governor of a Province to assume on behalf of the Governor‑General all or any of the powers vested in or exercisable by any Provincial body or authority ; any such proclamation may contain such incidental and consequen tial provisions as may appear to the Governor‑General to be necessary or desirable for giving effect to the objects of the proclamation including provisions for suspending in whole or in part the operation of any provisions of this Act relating to‑any provincial body or authority." On the 29th December, 1951, the Governor‑General issued the following proclamation under section 92A : "Whereas the Governor‑General is 'satisfied that a situation has arisen in which the Government of Sind cannot be carried on in accordance with the provisions of the Government of India Act, 1935 (hereinafter referred to as the Act): Now, therefore, in exercise of the powers conferred by section 92‑A of the Act the Governor‑General is pleased to direct the Governor of Sind to assume on his behalf all powers vested in or exercisable by the Provincial Legisla ture ; And the Governor‑General is further pleased to make the following incidental or consequential provisions which appear to him to be necessary or desirable for giving effect to the object of this Proclamation, namely (1) the operation of the following provisions of the Act is hereby suspended, namely, sections 50 and 51, section 59 so far as it relates to Ministers, section 62 except so fax as it relates to the power to dissolve the Legislative Assembly, sections 63 to 67 (both inclusive), sections 70 to 73 (both inclusive), section 75, the proviso to subsection (1) of section 76, subsection (1) and (2) of section 78, and so much of subsection (3) thereof as relates to salaries and allowances of Ministers, sections 79 to 82 (both inclusive), section 84, sections 86 and 88 and so much of section 169 as relates to the laying of reports before the Provincial Legislature." On the 30th December, 1951, the Governor of Sind issued the following order "In exercise of the powers conferred on me by subsection (2) (c) of section 62 of the Government of India Act, 1935 (as adapted by the Pakistan (Provisional Constitution) Order, 1947), I hereby dissolve the Legislative Assembly of Sind." The Governor relieved the Ministers of their respective offices with effect from the midnight of 29th December, 1951: Mr. Fazlur Rehman for the Plaintiffs argued that the insertion of section 92‑A was illegal, repugnant to section 9 (c) Independence Act which was confined to proof‑reading only and beyond the scope of section 8 (2) and section 8 (2) (c) of the Act because it conferred the powers of acting in discretion which were taken away by the Independence Act. The argument is attractive but unsound. Clauses (a) and (c) section 9 Independence Act have to be read with clause (i) which reads as under: "(i) so far as it appears necessary or expedient in connec tion with any of the matters aforesaid, for varying the constitution, powers or jurisdiction of any legislature, Court or other authority in the new Dominions and creating new legislature, Courts, or other authorities therein." Section 92‑A occurs in the chapter relating to failure of constitutional machinery and is not repugnant to section 9 (c) read with section 9(i) of the Act. Under clause (4) these orders shall be subject to the same powers of repeal and amendment as laws of the Dominion Legislature. The Dominion Legislature which could pass any laws repugnant to the Independence Act, under section 6(2) of the 'Act, conferred the powers, under section 9(5) to the Governor -General till 31st March, 1949, but did not repeal section 92‑A thereafter. Under section 8 of the Act till the Constituent Assembly made any other law, the Dominion and the Provinces shall be governed as nearly as may be in accordance with Government of India Act, 1935, and subject to the express provisions of the Independence Act and Governor‑General's Orders under section

9. In Emperor v. Sibnath Banerjee and others (AIR 1943 F C 75 at 85), Their Lordships defined "acting in his discretion" when the ministers are not entitled even to tender their advice and `individual judgment' when opportunity has to be given to Ministers of tendering advice but he is under no obligation to accept that advice. Under section 9 of the Government of India Act the Governor‑General would act on the advice of the Ministers. Under section 10 (4) the question whether any and, if so, what advice was tendered by Ministers to the Governor‑General shall not be inquired into in any Court. Following the decisions of Their Lordships of the Privy Council in Bhagat Sing v. King Emperor (I L R 12 Lah. 280.) and King Emperor v. Benoori Lal Sarma (I L R 1945 Kar. 97), the Federal Court and High Courts in India and Pakistan have, after the Independence Act, held that the Governor‑General and the Governor are the sole judges to issue Ordinances and the Courts cannot go into the question whether such circumstances exist as to render neces sary for them to promulgate Ordinances [vide Bhutnath Ghosh v. Province of Behar (A I R 1950 Pat. 35.); Jagdish Prasad Pal v. Province of Bihar (A I R 1950 Pat. 41); Lakhi Narayan Das v. the Province of Bihar (A I R 1950 F C 59.) ; and Tamizuddin Ahmad v. Province of East Bengal (A I R 1949 Dacca 33,). The position of the Governor‑General's orders under section 9 (a) to (i) of the Act as appear to him to be necessary or expedient is very similar to that of the Ordinances issued by the Governor‑General or the Governor and the Governor‑Generals powers to issue orders within the limits of section 9 of the Act cannot be questioned. Mr. Fazlur Rehman next argued that the powers of legislation conferred on the Governor‑General were contrary to democratic constitution of Dominions and his delegation of such power to the Governor was illegal. In this case the Governor‑General has not delegated his legislative powers at all. These contentions were repelled by Their Lordships of the Privy Council in King Emperor v. Benoari Lal Sarma (I L R 1945 Kar. 97). At page 106 they observed: "Their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor‑General with the provisions of the Ordinance by which he is purporting to exercise that authority." In Criminal Miscellaneous application No. 127 of 1954, Usif v. Crown (P L D 1954 Sind 193), decided on the 15th July, 1954, Division Bench of this Court consisting of my Lord the Chief Judge and Rahim Bux J., held that section 92‑A was valid. In exercise of the powers conferred by paragraph 20 of the fifth schedule to the Government of India Act, 1935, as adapted by the Pakistan (Provisional Constitution) Order, 1947, and sub‑paragraph 5 of paragraph 3 of Part I and para 6 of Part III of the Government of India (Provincial Elections) Corrupt Practices and Election Petitions Order, 1936, the Governor framed the Sind Legislative Assembly Electoral Rules, 1952. But Mr. Fazlur Rehman contended that these were illegal as he did not act on the advice of the Ministers who ceased to function. Government of India Amendment Act, 1951, provides that it will come into force for Sind after the dissolution of the Assembly. The Assembly was dissolved on the 30th December, 1951. Therefore the Governor could under para. 20 of the Amendment Act, 1951, frame rules. Under section 92‑A the Governor‑General could direct the suspension of any provisions of the Act relating to any Pro vincial body or authority. By the proclamation of the 29th December, 1951, he suspended the operation of sections 50 and 51 of the Government of India Act relating to Ministers under section 51(4) of the Act the question whether any advice was tendered by Ministers to the Governor shall not be inquired into in any court. Issues Nos. 1 and 4.‑There is no evidence to contradict the evidence of the plaintiffs on these issues which were dropped. Issues Nos. 15 and 20.‑Notices were issued to the Advocate‑General of Pakistan and Advocate‑General of Sind under Order XXVII‑A C. P. C. These issues were not pressed. Issues Nos. 2, 3, 16, 18, and 19.‑In Lord Strickland v. Giuseppe Grime (A I R 1930 (P C) 227), Their Lordships of the Privy Council held that decisions on questions relating to membership of legislative bodies were not decisions of mere ordinary civil rights. The right of vote or to stand as a candidate for the election is not a civil right but is a creation of statute and special law and must be subject to the limitations imposed by it. The Government of India Corrupt Practices and Election Petitions Order, 1936, and the Sind Assembly Electoral Rules, 1952, contain electoral law and do not deal with the ordinary legal rights of the citizens. Justice as ordinarily understood has reference to matters of Civil or Criminal disputes and not to election matters which are of a political nature. That electoral right in Pakistan is a creation of the statute and does not seem to admit of any doubt. The rule is fundamental both here and in England that where a right is created by a statute which also prescribes the manner in which that right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute. There is an apparent conflict of opinion as to whether section 42 Specific Relief Act is exhaustive. The Madras High Court relying on Fisher v. Secretary of State for India (22 Mad. 270 P. C) has held that section 42 Specific Relief Act is not exhaustive of the circumstances in which a person may ask for declaratory relief. But in a later case Their Lordships of the Privy Council in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh (43 Cal. 694 (P C)) held that the Court's power to make a declaration without more is derived from section 42 Specific Relief Act, and regard must, therefore, be had to its terms. Sulaiman C. J., in a full Bench case Siri Krishna v. Mahabir (A I R 1933 All. 488), gave an obiter dictum in favour of the Madras view by incidentally remarking that there was no doubt that section 42 was not exhaustive so as to include all other forms of declaratory suits. The Calcutta High Court following Snow white Food Products Co. Ltd. v. Punjab Banaspati Supply Co. (49 C. W. N. 172), has held that section 42 Specific Relief Act is exhaustive and no suit will lie for a declaration which is outside its scope. In Shingara Singh v. Callaghan (A I R 1946 Lah. 247 at 255‑256) a Special Bench of the Lahore High Court held that a simple suit for a declaration that an Ordinance is ultra vires and for an injunction is not‑maintainable even if it be assumed to be possible to grant a declaration in a case beyond the provisions of section 42 Specific Relief Act. Venkatara Ghaviah v. Sarraju Chenchu Subbiah (A I R 1931 Mad. 502) and Subarao v. Secretary of State (A I R 1930 Mad. 349), which followed Fischer v. Secretary of State for India (22 Mad. 270 (P C).), were distinguished on the ground that in both of them the office was hereditary and the suit fell within the scope of section 42 Specific Relief Act. In the present suit the point as .to ultra vires nature of section 92‑A is not merely collaterally or incidentally in issue which could be gone into, but it is directly and substantially in issue and without obtaining a determination from the Court to the effect that the legislation is ultra vires, the Plaintiffs cannot have the declaration sought nor can they get an injunction against the defendants. The weight of authority is for the proposition that as regards cases after the passing of the Specific Relief Act the power of Courts in India to make decree merely declaratory rests entirely upon section 42 of the Act [Koamanachiar v. Dorasingha Tever (15 B L R 83); Deokali v. Kedarnath (39 Cal. 704.) ; Sheoparsan Singh v. Ramanandan Prasad (43 Cal. 694 (P C)); Thever v. Samban (6 Rang. 188.); Bholanath v. Lachmi Narain (53 All. 316); Muhammad Fahimal Haq v. Jagat Bellav (2 Pat. 391.); Sabitri v. Savi (12 Pat. 359); Abdul v. Finlay and Flemin & Co. (6 Rang. 291.); Bai Shri Vaktuba v. Thakar Agar Singhji (34 Bom. 676.) ]. Issue No.

21. The result is that the suit is dismissed with costs. A. H. Suit dismissed.