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Official Citation: 1996 CLC 293
Court / Jurisdiction: Lahore High Court
Year of Decision: 1995
Decision Date: 1995-07-20
Parties: GHULAM HABIB RANA and anothers vs PAKISTAN and others
This judicial decision was delivered by the Lahore High Court on 1995-07-20. The matter involves proceedings between GHULAM HABIB RANA and anothers and PAKISTAN and others, officially reported as 1996 CLC 293. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 1996 CLC 293
Court Name: Lahore High Court Judge(s): Iftikhar Hussain Chaudhry Title: GHULAM HABIB RANA and anothers vs PAKISTAN and others Case No.: Writ Petitions Nos. 272 and 415 of 1995 Date of Judgment:1995-07-20 Reported As: 1996 CLC 293 Result: Petition accepted
JUDGMENT
JUDGMENT ' This order shall dispose of Writ Petitions Nos. 272/95 and 415/95. 2. The petitioners in both the writ petitions are duly elected members of Cantonment Board Rawalpindi. The Cantonment Board stands constituted under the provisions of the Cantonments Act, 1924. The Federal Government in purported exercise of its power under section 14 of the Cantonment Act issued a Notification No, S.R.O. 140 (I)/95 dated 22-2-1995 and declared that it was desirable to vary the constitution of Rawalpindi Cantonment Board for a period of one year with immediate effect. A varied board consisting of Station Commander as President and Lt.-Col. Sher Amir Ali Hakim Ji as members was constituted. The writ petitions were submitted to challenge the notification dated 22-2-1995 issued by the Federal Government and also against the constitution of the varied board consisting of three members. Pre-admission notice was issued to respondents and they were also directed to submit written comments. Respondent No,4 in Writ Petition No, 272/95 did not appear in court despite service and was proceeded against ex parte. Later written comments were submitted by the Federal Government as well as the Cantonment Board. Preliminary arguments were heard on 15-6-1995 and in view of the importance of question involved which related to interpretation of section 14 (I) of Cantonments Act, 1924, the petition was admitted to regular hearing. Learned counsel for the parties have been heard in the matter today. 2. Learned counsel for the petitioner submitted that Cantonment Board consisting of elected as well as unelected members was functioning properly and its last meeting was held on 26-11-1994 and thereafter the President of the Board did not summon its meeting and there was absolutely no basis for taking the impugned decision by the Federal Government. It was contended that the members should have been heard in the matter before taking of the decision but this was not
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done and likewise no show-cause notice was given to the members. It was contended that it was the President/Station Commander and the Secretary who did not summon any meeting of the Board despite requisition having been made in this regard and instead of taking any action against these functionaries the elected members were ousted from the office of the Cantonment Board without any rhyme or reason. It was submitted that a reading of relevant provisions would show that the Government must have been satisfied in an objective manner before taking any decision in this regard but the notification issued in this regard did not show what were the reasons on the basis of which the satisfaction was arrived at by the Federal Government. Reliance was placed on Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Tanveer Mehmood v. Noor Muhammad and 9 others (PLD 1993 Kar. 207), Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5 others (1986 CLC 1680), Dr. Muhammad Ismail v. Deputy Commissioner, Jhang (PLD 1976 Lahore 758), Muhammad Ayaz Khan and 6 others v. The District Magistrate Batagram and another (1995 PCr.LJ 587), Ahmad Fahim Mughal v. Muhammad Saleem Khan District Magistrate (PLD 1990 Karachi 474), and Maj.-Gen. (Retd.) Naseer Ullah Khan Babar v. President, Summary Military Court, Peshawar and 3 others (PLD 1989 Peshawar 215). 3. Learned counsel for the respondents on the other hand submitted that satisfaction of the Government under the relevant provision of law was not justiciable in the constitutional jurisdiction of this Court and the Government was the best judge in the matter whether conditions prevailed which necessitated a variation of the Cantonment Board or not. Reliance was placed by the petitioner on Maulvi Muhammad All v. Crown (PLD 1950 F.C. 1). It was argued that elected members moved a vote of no confidence against Vice Chairman and thereafter respondent No,4. In (W.P. No, 272/95) also an elected member submitted an application before the Station Commander that another member was having affiliation with a political party and he should be removed from the membership of Cantonment Board and because of this situation the atmosphere of the Cantonment Board had become politicised which necessitated action by the Federal Government and the impugned order in the circumstances was passed rightly and needed no interference. 4. The first objection raised by the respondents related to jurisdiction of this Court by asserting that the matter in issue was not justiciable as the Federal Government had passed the order after being satisfied that it was desirable to vary the constitution of the Cantonment Board. The power of judicial review which this Court exercises has been conferred on it by the Constitution. This Court has constitutional duty and responsibility, since the judicial review has been expressly entrusted to it as a constituent power, to review the acts done by the co-ordinate branches, the executive or legislature under the constitution, under law, or an administrative order within the parameters applicable to a particular decision. Thus, it is the province and duty of this Court to see whether any action taken, order passed, decision made by a particular branch of the Government is within the limits circumscribed by the law or not. Legality, irrationality or unfairness in treatment by any public authority, body or functionary to any person would call for protection to be given to that person by this Court. In Tanveer Mehmmod v. Noor Muhammad and 9 others (PLD 1993 Karachi 207) it was observed that it need hardly be said that under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is a right of every individual to be dealt with in accordance with law. Where law has not been correctly or properly observed, a case for interference by the High Court and exercise of its constitutional jurisdiction is made out. The power of High Court to judicially review a decision is a sacred trust and the Court is obliged by compulsion of law to exercise this power in aid of justice and fairplay. The amplitude of this power is quite wide and is circumscribed by considerations of self-restraint imposed by the High Court itself. The arguments advanced by respondents relating to jurisdiction of the Court are so antiquated, sepulchral and hollow that these merit hardly any solemn treatment.
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5. The adjudication of present petitions involves interpretation of provisions of section 14 (1) of the Cantonment Act, 1924 which reads as: ' Section 14. Power to vary constitution of Boards in special circumstances--(1) Notwithstanding anything contained in section 13A, if the Central Government is satisfied-- (a) that by reason of military operations it is necessary, or (b) that for the administration of 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." ' The term employed in subsection (1) is "satisfied" According to the Oxford English Dictionary, it means contented, pleased, gratified. According to New Standard Dictionary of English Language (Funk & Wagnalls) 'satisfy' is 1. To cause to have enough; supply fully with what is needed so that there is desire for more; meet the wish or desires or fulfil the expectation of; gratify, content; as to satisfy a claimant; to satisfy hunger. 2. To free from uncertainty, doubt, or anxiety, set at rest the mind of; as, to satisfy oneself by enquiry. ' According to Websters' New Twentieth Century Dictionary "Satisfy" is: To gratify fully the wants, wishes or desires of; to supply to the full extent with what is wished for' to make content' as to satisfy hunger or thirst, to satisfy a hungry man. (2) (a) to give what is due to (b) to discharge. (3) To fulfil the conditions of; to answer, as an algebrac equation is said to be satisfied when after the substitution of any expressions for the unknown quantities which enter it, the two members are equal. (4) (a) free from doubt, suspense or uncertainty, to give full assurance to set at rest the mind of, as to satisfy oneself by the enquiry; (b) to answer (a doubt, objection, etc.) adequately or convincingly; to solve. (5) To comply with (rules, standards or obligations): It would be evident from the above that the word "Satisfied" conveys a sense not of self- righteouness, complaceny or affected facade but of a condition of objective fulfilment, satiety or achievement. When talked of in relation to a decision, like the one under review, it does imply that the same was arrived at after due enquiry and after ascertaining the rational basis for the same. ' Clause (b) of subsection (14) reads as: "that for the administration of the cantonment, it is desirable" "Desirable" according to Chamber's English Dictionary is: worthy of desire; to be approved of, pleasing, agreeable. Webster's New International Dictionary defines it as: "Worthy of desire, longing, or choice, fitted to excite desire; pleasing, agreeable; beneficial; salutary; as, a desirable alliance." According to the (Oxford) New English Dictionary" "desirable" is worthy to be desired; to be wished for. In early use often standing for qualities which cause a thing to be desired: Pleasant, delectable, choice, excellent, goodly. Collin's Thesarus defines "desirable" as: "Advantageous, advisable, agreeable, beneficial convetable, eligible, enviable, good pleasing, preferable, profitable, worthwhile." ' According to Webster's Twentieth Century Dictionary "desirable" is: "Worthy of desire, from desiderare, to desire. ' That is to be wished for; calculated or fitted to excite a wish to possess pleasing or beautiful, excellent etc." ' The antonym of 'desirable' is undesirable' which has been defined, as: "Disagreeable, disliked, distasteful, objectionable, obnoxious, offensive, unpleasant."
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The word desirable has been employed to obviate an obnoxious state of affairs I and to replace it with an enviable state of affairs, not just good but the best. 6. The petitioners contended that the decision was taken by the Federal Government in a subjective manner and was not based on any material nor any reasons were given for the decision. The respondents controverted stand of the petitioners on essentially two grounds. First was that satisfaction of the Government alone was required for making the decision and second was that the decision was taken by the Federal Government for the reasons that the Cantonment Board had become highly politicized. The respondents had referred to Maulvie Muhammad Ali v. Crown (PLD 1950 FC 1) and Muhammad Hayat v. The Crown (PLD 1951 FC 15). In support of the first ground. The case-law emanates from Public Safety Acts of 1947 and 1949 and treatment of the word 'satisfied' is in terms that since the word occurred in the legislation without any qualifying adverb such as 'reasonably', the same was used in a subjective sense only and due to that the term 'satisfaction' related to satisfaction of the authorities concerned and not of the Court and the authorities cannot be compelled to disclose the reasons for their satisfaction. A similar view was taken in Liversidge vs Sir John Anderson (1942) A.C. 206), a decision from the House of Lords, which had its genesis in the Defence Regulations, issued by the British Government, authorizing detention of individuals. Even in the said report, Lord Wright had observed (at page 271): "Satisfied must mean reasonably satisfied. It cannot import an arbitrary or irrational state of being satisfied". The case- law relief upon by the respondents is not much relevant to the issue not because the psyche of the Court, which has considerable nexus with its environment, has undergone a change but for the reasons that legislation under review is altogether different. The word satisfied is tagged with "desirability of administration of Cantonment Board". Satisfaction in this context cannot be merely a subjective state of mind but has to be a rational assessment of the situation on the ground for determination of the 'desirability'. 7. The import of the word 'satisfaction' has been considered by Courts on various occasions. In Ahmed Fahim Mughal v. Muhammad Saleem Khan, District Magistrate (PLD 1990 Karachi 474) it was held as: "Under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the 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' is 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 their being material before them in support of grounds of detention. Had it not been the intention of the legislature, words 'it is necessary so it do' would not have been used to demonstrate without ambiguity that 'satisfaction' is subjective in nature. ' High Court in its power of 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 authorities had before it, sufficient materials upon which reasonable persons could have come to the conclusion that requirement of law have been satisfied. 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 material 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
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be sufficient material before the executive authorities to act upon it in order to justify passing of order of detention. Such material may contain specific instances of the past conduct." ' In Maj. Gen. (Retd.) Naseerullah Khan Babar v. President Summary Military Court (PLD 1989 Peshawar 215) it was observed as under: "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 are satisfied---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 has been taken." ' In certain statutes, phrase 'if in the opinion of instead of word "satisfied' is used. The phrase 'in the opinion of is considered to be milder in implication than the term 'satisfied'. Meaning of this phrase was considered in Barium Chemicals Ltd. And another v. Company Law Board and others (AIR 1967 SC 295). It was observed in paragraph 27 of the report: "The words 'in the opinion of the Central Government' in section 237 (b) indicate that the opinion must be formed by the Central Government and it is of course implicit that the opinion must be an honest opinion. The next requirement is that 'there are circumstances suggesting etc.' These words indicate that before the Central Government forms its opinion it must have before it circumstances suggesting certain inferences. ' Again an action, not based on circumstances suggesting an inference of the enumerated kind will not be valid. In other words, the enumeration of the inference which may be drawn from the circumstances, postulates the absence of a general discretion to ge on a fishing expedition to find out the subjective but the existence of circumstances relevant to the (inference as the) sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out. Since the existence of 'circumstances' is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion or certain definiteness." ' Paragraph 64 of the report says: "Before the discretion conferred by section 237 (b) of the Companies Act, 1956, to order an investigation can be exercised, there must exist circumstances which in the opinion of the Authority suggest what has been set out in sub-clauses (i), (ii) or If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion, therefore, suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute." Term 'satisfaction' is at a higher pedestal than the 'opinion' as onus placed on the decision-maker qua adjudicating process in achieving the former is heavier. But nonetheless, whether the decision is opinion-based or rests on satisfaction a decision maker or authority cannot get away just by saying that "I am satisfied"; the authority has to show that the decision was actually based on material having relevance to or evidencing existence of circumstances which necessitated the decision to achieve the purpose defined by law. The material has to be, then shown to have passed an empirical and pragmatic process of evaluation in order to establish that the decision was not taken by viewing the material in a subjective manner. For this, the reasons given in the decision, or order, or those claimed by the authority, must show that the ratiocination was logical, that of a prudent man, leading to natural inferences intead of strained conclusions. The position is not much
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different where the authority comes to a conclusion on the basis of circumstances, which in its opinion justify that decision. Circumstances justifying the conclusion have to be shown to exist. 8. The judicial or quasi-judicial forums have to pass well-reasoned orders. The administrative authorities are under no less obligation to do likewise but the rigour of this requirement in their case is not as intense as in the case of judicial or quasi-judicial bodies. In this context a passage from S.N. Mukherjee v. Union of India (AIR 1990 SC 1984) may be reproduced: "In view of the expanding horizon of the principles of natural justice, requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authority. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement ' Therefore, except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. The recording of reasons by an administrative authority serves a salutary purpose namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Therefore, the requirement that reasons be recorded should govern the decisions... ' It is, however, not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that reasons are clear and explicitly so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage." Thus, not only the judicial or quasi-judicial forums are required to give reasons for the order passed by them, the administrative authorities are also under an obligation to give reasons in support of the decision made by them. Where the statute expressly or by necessary intendment, gives an allowance to an administrative authority to dispense with recording reasons, only in that case the final decision may not contain any reason but even here, the authority is bound to disclose the reasons which prevailed with it in arriving at the conclusion it did. But where law requires that reasons are to be given in a decision then it is imperative on the authorities to record reasons in the order and the order should itself reflect the reasons. Absence of reasons from the order in this situation would render it into complete nullity. 9. Section 10 of the Cantonments Act, 1924 requires that there should be a Cantonment Board for every Cantonment. The Cantonment Board, required to be in existence at all times, is one, which is constituted under section 13-A of the Act. An exception to this arrangement is made by section 14 which confers the power on Federal Government to vary constitution, of a Board in special circumstances. Section 14 carries this heading: 'Power to vary Constitution of Boards in special circumstances." According to Maxwell (10 Ed. p.50); the heading prefixed to sections or sets of sections in modern statutes are regarded as pre-ambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words". If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt. The heading of section 14 does lead to the conclusion that it deals with a situation which is not customary or normal. Ordinarily, as required by section 10 of the Act, there has to be a Board for
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every Cantonment. The Board is constituted under section 13-A of the Act. As a matter of course, Cantonment Board as constituted has to carry on its obligations for the terms it comes into being. Section 14 creates an exception and, thus, cannot be applied in routine but is invokable under special circumstances only. The circumstances under which provisions of section 14 can be resorted to, stand enumerated in clauses (a) and (b) of subsection (1) of Section 14. Clauses (a) and (b) reads as: "that, by reason of military operation it is necessary, or (b) that for the administration of the Cantonment, it is desirable." ' These are the situations in which Constitution of Board can be varied. Clause (b) is relevant, for action was taken by the Federal Government under this provision, and perusal of the words "if the Federal Government is satisfied that, for the administration of the Cantonment, it is desirable" show that desirability is tagged with administration of Cantonment. The provision of law under review thus enures for the benefit of administration alone. The provision can be invoked where it is desirable for administration alone. It is noteworthy that phrase used is for the administration of and not "for the better administration of', Use of any superlative with "administration" such as 'better', `excellent' or 'more efficient' would have conferred considerable discretionary power on the Cantonment for the difference between "good" and "better" is only relative, and this would have opened the gates for subjective and arbitrary decisions.…
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