1997CLC374 (PLP)

(a) that, by reason of military operations it is necessary, or (b) that for the administration of the Cantonment, it is desirable, to vary the constitution of the Board in any Cantonment under this section, the (Central Government) may, by notification in the (official Gazette), make a declaration to that effect. "

6. The notification can only ‑be issued when Central Government is satisfied‑‑ (a)

(b) that for the administration of the Cantonment Board, it is desirable. Neither there is sufficient ground nor material to call for action under the above stated provision of law. The word "satisfied" has been interpreted by the Peshawar High Court in the case Muhammad Ayaz Khan and 6 others v. The District Magistrate, Batagram and another (1995 PCr.LJ 587)., wherein it was observed as under:‑‑ "Needless to mention that an order of detention has to satisfy various requirements chief amongst these are:‑ "That the Court must be satisfied that the material placed before the authority empowered to issue detention order was of such a nature/character so as to persuade a person of ordinary prudence to make an order of preventive detention. "

7. Similarly in another case of the Peshawar High Court on the same proposition it has been laid down that:‑ "What is reasonable or not in this context must be judged by the standards of an ordinary prudent and reasonable citizen, and will depend on the prevailing circumstances and the object with which action had been taken. "

8. Yet in another case of similar nature it was held in PLD 1978 SC 40 that:‑‑ "what the Court is concerned with is that executive or the administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied."

9. In another judgment while examining a case under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, Divisional Bench has held in the judgment reported as Ahmad Fahim Mughal v. Muhammad Saleem Khan, District Magistrate & D.C. (South), Karachi and 2 others (PLD 1990 Karachi 474) that:‑ . "Legal aspect of this matter is that under section 3 of Maintenance of Public Order Ordinance, Government is empowered 'to pass order of detention and take such person in custody if the Government is satisfied that it is necessary to do so with a view to preventing any person from acting in any manner prejudicial to public safety or maintenance of public order. From the very language used in the section as stated above particularly when 'satisfaction' as qualified with eventuality of 'it is necessary so to do' it becomes indisputably manifest that 'satisfaction' is to be objective in nature and not subjective of such nature to allow the authorities to act on whims and caprices without there being material before them in support of grounds of detention. Had it not been the intention of the Legislature, words ' it is necessary so to do would not have been used to demonstrate without ambiguity that 'satisfaction' is subjective in nature. In the case of Mir Abdul Baqi Baluch v. The Government of Pakistan and others reported in PLD 1968 SC 313, it is held that High Court in its power in judicial review can examine order of detention and can insist on disclosure of materials on which executive authority had acted, subject to the right of state to claim privilege in respect of secret information. It is further held, that mere production of order of detaining authority in proof of satisfaction' is not sufficient. What High Court is concerned with is to see that executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that requirements of law have been satisfied. Observation of the Supreme Court goes further, to say that it is not uncommon that even high executive authorities act upon the basis of information supplied to them by their subordinates. In the circumstances, it cannot be said that it would be unreasonable for the Court, in proper exercise of its Constitutional duty, to insist upon a disclosure of materials upon which the authority had so acted so that it should satisfy itself that the authority had not acted in an 'unlawful manner'. It is, therefore, mandatory requirement of law that there should be sufficient material before the executive authority to act upon it in order to justify passing of order of detention. Such material may contain specific instances of the past conduct. "

10. In the last judgment, regarding the material and satisfaction for passing an order by the executive was interpreted by the Full Bench of the Hon'ble Supreme Court in a famous case titled as Mian Muhammad Nawaz Sharif v. President of Pakistan and others reported as PLD 1993 SC 473, while examining the contents of Article 58 (2) (b) of the Constitution of Islamic Republic of Pakistan it was held that:‑‑ "If it could be shown that no grounds existed on the basis of which an honest opinion could be formed 'that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of Constitution and an appeal to the electorate is necessary." The order was held to be mala fide and consequence struck down.

11. In the light of the above‑referred judgments and the content of the present case, we are satisfied that there was no material before the Federal Government for issuance of the impugned notification. The perusal of the original file indicates that a letter was written by one of the members on 7‑12‑1994 for disqualification of another member on the pretext of his political affiliation. On that basis the Federal Government formed an opinion that environment of the Board has become highly politicised and resulted in creating hindrances in the administration of the Cantonment Board. It was further stated in the report submitted by the Assistant Director‑General (Budget) to this Court that in the wake of these administration difficulties, resulting from political polarization of elected members, the President, Cantonment Board recommended the variation of the constitution of the Board under section 14‑1(b) of the Cantonments Act, 1924. The abovesaid recommendation of the Board was relied upon by the Federal Government and the impugned notification was issued. The President of the Cantonment Board considering the situation highly politicised recommended the Federal Government for variation of constitution of the Board, whereupon the disputed notification was issued. The members of the Board were elected by the people and their political affiliation cannot be curbed by any A method. The mere political affiliation of any member of the Board does not disqualify him from his membership.

12. The political affiliation of any member is not a rare phenomena. They are the local leaders of the political parties. They may not contest the election on political basis but their political affiliation cannot be ruled out. Elected representative of people have been deprived of their rights and privileges in relation to administration of affairs of their constituencies on the basis of abovesaid action. The action has been taken an extraneous consideration and in a mala fide manner. It has also been brought to our notice during hearing of appeal that operation of the impugned notification has been extended for another year. The result of action taken by the appellant amounts to defranchise the constituencies of the elected members. Such a punitive action cannot be allowed in the absence of justiciable material. Since there was no material whatsoever for variation of Board, the issuance of impugned notification is unjustified and unlawful.

13. In this view of the matter, it is observed that the abovesaid material is neither sufficient nor satisfactory for issuance of the notification referred above. The action taken by the appellant is unwarranted. There is no material at all justifying the variation of the Board. The order passed by the learned Judge in Chamber is not open to any exception. We accordingly dismissed this anneal with no order as to costs. A.A./C‑6/L Appeal dismissed.