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Petitioner: ABDUL BAQI BALOCH VS Respondent: JAM MIR GHULAM QADIR KHAN OF LASBELA
1989 M L D 3808
1989 M L D 3808
[Karachi]
Before Tufail Ali A. Rehman, CJ, Abdul Kadir Shaikh, Dorab Patel, Mir Khuda Bakhsh Marri and Abdul Hayee Kureshi, JJ
Mir ABDUL BAQI BALOCH--Petitioner
Versus
Jam Mir GHULAM QADIR KHAN OF LASBELA and 5 others--Respondents
Constitutional Petition No.858 of 1973, decided on 31st August, 1973.
(a) Constitution of Pakistan (1972)--
---Art.209--Grant of writ in the nature of quo warranto--Essentials--Writ of quo warranto, could be granted at the instance of any person and not necessarily at the prayer of one who was an aggrieved party.
(b) Constitution of Pakistan (1972)--
---Arts. 104 & 136--Conflict between two provisions of the Constitution- Remedy--Proclamation by President directing Governor of Province to assume to himself functions of the Provincial Government--Petitioner's contention that despite proclamation, provisions of Art.104 of the Constitution continued to operate and there being already a Chief Minister duly appointed by the Governor who had taken oath of office and that such Chief Minister should be deemed to have continued, repelled--Held: Provisions of Constitution or any legislative instrument must be so construed as to give effect to all parts of it and to reconcile the provisions with one another and there can be no question of choosing between the provisions unless there was such absolute conflict between two provisions that upon no reasonable interpretation can they both be given effect to--Chief Minister or Ministers thus could not hold office while proclamation was in force.
(c) Interpretation of Constitution.-
---Provisions of Constitution or any legislative instrument must be so construed as to give effect to all parts of it and to reconcile the provisions with one another and there can be no question of choosing between the provisions unless there was such absolute conflict between two provisions that upon no reasonable interpretation can they both be given effect to.
Illahi Bux v. Muhammad Ayub Khuro P L D 1956 Sind 101 and Ghulam Jilani's case P L D 1967 S C 373 ref.
(d) Precedent--
--- Each case must necessarily be authority for the proposition which it actually decides, and must be understood in the light of the facts and contentions which had arisen in that case.
(e) Constitution of Pakistan (1972)--
---Arts.201, 104 & 136--Constitutional jurisdiction--Removal of Provincial Government--Plea that after period of proclamation had expired, the outgoing Chief Minister, automatically and without anything further assumed office of Chief Minister, was misconceived--Constitutional petition dismissed.
Iqbal Haider for Petitioner.
Yahya Bakhtiar, Attorney-General, A.H. Memon, A.-G. Sind and Muhammad Ahmed, A.-G. Baluchistan, on Court Notice.
Date of hearing: 27th August, 1973.
JUDGMENT
TUFAIL ALI A. RAHMAN, C.J.--This petition which seeks to challenge the appointment of respondent No.l, as Chief Minister, Baluchistan, and that of respondents 2, 3 and 4, as Ministers of that Government and their continuance in office as such was filed upon the 8th of August, 1973; respondents 5 and 6 are the Islamic Republic of Pakistan and the Province of Baluchistan, respectively. The petition first came up before a Division Bench of which my learned brother Abdul Hayee Qureshi, J., and I myself were members and after we had heard Mr. Iqbal Haider, learned counsel for the petitioner, for some time, we were not convinced that the petitioner had made out a real case for the respondents to answer. Nevertheless, regard being had to the important question as to the validity of the appointment and continuance in office of the entirety of the Ministers of a Provincial Government we thought that the matter should be decided by a larger Bench but that it should not in the meantime, be admitted unless at the next hearing we were satisfied that there were substantial questions to be examined and answered by the respondents. We accordingly issued notice to the Attorney-General for Pakistan and the Advocates-General for Sind and Baluchistan and in the meantime caused the case to be referred to a Full Bench, which met on the 13th of August, 1973, on which date although the Advocates -General of Baluchistan and Sind were present the Attorney-General sent information that he was in Pindi and could not come in time but requested that the matter be adjourned as he would be happy to appear and assist the Court in this matter. Accordingly we adjourned this case to the 27th August, 1973 a date to which all the counsel then present before us were agreeable. We were conscious of course that upon the next day the Constitution of the Islamic Republic of Pakistan, which had already been enacted would come into force and, therefore, did request counsel who were then present before us to consider also whether the enforcement of the Constitution would affect the various contentions raised in this matter. On the 27th August, 1973, we heard counsel for the petitioner at some length as also the Law Officers whom we have mentioned and for whose assistance in this case we are grateful. At the conclusion of the hearing, being, all of us, of the view that the petition should be dismissed we announced judgment dismissing it and I now set out for the reasons which persuaded me to concur in this course.
2. The petition sets forth a number of facts many of which have been controverted before us by the learned Attorney-General as also the two Advocates-General and as to these controversies let it suffice at the moment to say that, whether these facts can be adjudicated upon by us at a full hearing after notice has been given and parties have filed affidavits or not at the present stage at any rate it is not possible so to do. Of course if such facts were, in our opinion really material in the sense that upon them the questions that have been raised in this case depended, I think it would be our duty to assume at this stage, the correctness of such facts to the extent that they have been supported by proper affidavits or are facts of which judicial notice can be taken. As I shall show, however, at a more appropriate stage in the course of this judgment, these controverted facts were not really material for this purpose. The learned Attorney-General and the learned Advocate-General of Baluchistan did indeed in regard to some of these facts desire to show by reference to newspaper cuttings that the facts as alleged in the petition were incorrect but we prevented them from referring to such material as in our opinion we could not refer to such sources for the purpose of determination of these facts. We agreed, however, to take note and we do take note, of the assertion made by the two learned Law Officers that should this matter be admitted to a regular hearing these facts would be controverted in proper form and it suffices, I think, at the moment merely to record these statements that, if and when necessary, proper proof would be adduced for the purpose of showing that the facts alleged are incorrect. Fortunately, however, the facts upon which the questions raised in this case depend are really neither disputed nor capable of dispute clearly, if the position was otherwise it would have been a more proper course for us to follow to admit this matter and to give notice to the parties concerned so that proper evidence could be led upon both sides of such disputed questions of fact.
3. The necessary and incontrovertable set of facts which have given rise to this petition may now be stated. The interim Constitution of the Islamic Republic of Pakistan, was enacted and came into force on the 17th April, 1972, and the 20th April, 1972, respectively (since it will be necessary from time to time to refer to this Constitution and the Constitution of the Islamic Republic of Pakistan, enacted in 1973, which came into force upon the 14th August, 1973, I shall for the purpose of avoiding cumbrous language, refer to these two Constitutional instruments as the Interim Constitution and the Constitution respectively in the course of this judgment). Following the enforcement of the Interim Constitution, the President appointed Mir Ghaus Bukhah Bizenjo as the Governor of Baluchistan, and this gentleman, in turn, appointed Sardar Ataullah Khan Mangal, a Member of the Provincial Assembly of Baluchistan to be the Chief Minister. A Council of Ministers was then sworn in. The Government of Baluchistan was then administered for sometime by the said Governor aided and advised by the said Ministers in accordance with the provisions of the Interim Constitution. However, on the 15th February, 1973, purporting to exercise powers vested in him by Article 136 of the Interim Constitution the President issued a proclamation which is in the following terms:
WHEREAS I, Zulfikar Ali Bhutto, on the basis of the reports reaching me, am satisfied:--
(i) that contrary to the directions given to it in that behalf, the Government of the Province of Baluchistan, has failed to take effective measures to check the. large scale disturbances in different parts of the Province resulting in loss of life and property on a massive scale and causing a growing feeling of insecurity among the inhabitants and grave menace to the peace and tranquility in the Province;
(ii) that a situation has arisen in which the Government of that Province cannot be carried on in accordance with the provisions of the Interim Constitution of the Islamic Republic in Pakistan, hereinafter referred to as the Constitution; and
(iii) that the national interests so require.
Now, therefore, in exercise of the powers conferred by Article 136 of the Constitution and of all other powers enabling me in that behalf, I hereby: -
(a) direct the Governor of the Province to assume on my behalf all functions and powers of the Government of that Province and all or any of the powers vested in or exercisable by any body or authority in that Province other than the Provincial Legislature;
(b) make the following incidental and consequential provisions which I consider, are necessary and desirable for giving effect to the objects of this proclamation;
(i) the Governor's counsel of Ministers headed by the Chief Minister of that Province are hereby removed and shall forthwith cease to hold office;
(ii) in the exercise of the functions which the Governor has directed to assume hereunder, the Governor shall act to such extent and subject to such condition as I shall, from time to time, deem fit to give or impose.
This order, unless revoked earlier shall remain in force for a period of 30 days.
ZULFIKAR ALI BHUTTO. H. PK. PRESIDENT"
On the same day, the President removed Mir Ghous Bukhsh Bizenjo from the office of the Governor and appointed in his place Nawab Mohammad Akbar Bugti. It will be seen that the proclamation, in its own terms, was limited to a period of 30 days unless revoked earlier although Article 136 of the Interim Constitution, to the provisions of which I shall make more detailed reference hereinafter, authorised the President to make such a proclamation for a period of two months.. However, upon the expiry of the period of 30 days the President issued another' proclamation, which , although is not in terms identical with the first proclamation, in effect continues its operation for another period of 30 days. It reads as follows:-
"WHEREAS, I Zulfikar Ali Bhutto, on receipt of a report from the Governor of Baluchistan, am satisfied
(i) that a situation has arisen in which the Government of the Province of Baluchistan cannot be carried on in accordance with the provisions of the Interim Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution; and
(ii) that the national interests so require;
NOW, THEREFORE, in exercise of the powers conferred by Article 136 of the Constitution and of all other powers enabling me in that behalf, I hereby direct the Governor of the Province to assume on my behalf all functions and powers of the Government of that Province and all powers vested in or exerciseable by any body or authority in that Province other than the Provincial Legislature.
2. In the exercise of the functions which the Governor has been directed to assume hereunder, the Governor shall act to such extent and subject to such conditions as I may deem fit to give or impose from time to time.
3. This proclamation unless revoked earlier, shall remain in force for a period of thirty days.
ZULFIKAR ALI BHUTTO, H. PK., PRESIDENT.
4 The second proclamation also expired thus on the 15th April, 1973, and on the 27th April, 1973 the Governor of Baluchistan appointed respondent No. 1 as the Chief Minister and respondents Nos. 2 and 3 and later, respondent No. 4 as members of his Council of Ministers and they took oath accordingly under the interim Constitution. Upon the enforcement of the Constitution, although ordinarily the Governor and the Chief Ministers are functionaries who enter upon their office only after taking the oath that is prescribed in the Third Schedule thereto, by reason of Article 275 they continued to hold office even without taking an oath but were of course, under Clause (4) of that Article, required to take the prescribed oath as soon as practicable after the commencing day of the Constitution, that is to say, the 14th of August, 1973. Accordingly the Governor of Baluchistan took the oath on the 16th August, and in turn administered the oath of office to the Chief Minister on that day or perhaps one or two days later, it will be noticed, however, that Article 275 makes no reference to Ministers and accordingly respondents 2, 3 and 4 who were Ministers, at least defacto if not de jure, before the commencement of the Constitution ceased to be Ministers upon the 14th but the same persons have been appointed Ministers and have taken the oath, we are informed, with the Chief Minister, in the case of respondents 2, 3 and 4, therefore, there is a point of distinction inasmuch as they do not owe their office just now to their initial appointment thereto in April, 1973, but have entered upon their offices, if indeed their holding of office is legal, upon the date upon which they have taken oath. Whether or not this will make a real difference is a matter which I shall presently consider. Before I deal with the various contentions put forward by the learned counsel who appeared for the petitioner, it would be proper, I think to consider an argument advanced by the learned Attorney-General against the maintainability of of" their petition, at any rate, part of it. This is in the nature of a preliminary objection but it was not taken and was urged only after learned counsel for the petitioner had concluded his main address: This was, of course, entirely the proper course for the Attorney-General to adopt since the petition had not yet been admitted to regular hearing and he was not. appearing, in any sense, for the respondents but merely in response to our own request. The argument is based upon the prayer which has been made in the petition and which is thus worded:
"It is, therefore, prayed that this Honourable Court may be pleased to issue a writ in the nature of Quo Warranto requiring the Respondent Nos. 1 to 4 to show under what authority of law they claim to hold their respective public offices, and after satisfying itself that the said Respondents do not hold offices under any lawful authority may be pleased to:
(i) restrain Respondents Nos. 1 to 4 from exercising the powers of Ministers ,.,in the Province of Baluchistan;
(ii) declare that Sardar Attaullah Mengal the Chief Minister of Baluchistan and his Council of Ministers are the only lawful, legitimate and valid Ministers of the Province of Baluchistan;
(iii) declare the orders passed/decisions taken, etc. by the Respondents Nos. 1 to 4 in the purported exercise of their powers as illegal, ultra vires and of no lawful consequence;
(iv) declare all actions/orders of the Governor as on the advice of Respondents Nos. 1 to 4 as illegal, inoperative and of no lawful consequence;
(v) grant any other relief which this Hon'ble Court may consider it and proper in the interest of justice;
(vi) award costs of the petitioners."
It will be noticed that the prayers which are given distinctive numbers are all of them, with the exception of (v) and (vi), such as fall within sub-clause (c) of Clause (2) of Article 201 of the Interim Constitution or sub-clause (1) of Article 199 of the Constitution and are, under each of these provisions maintainable only upon the application of an aggrieved person. The prayers numbered (v) and (vi) are merely to the effect that any other relief which may be considered fit and proper be granted and a prayer for costs. The petitioner does not claim any personal interest or that he has been affected by any order of the Ministers nor can he really claim that he is interested, in any legal sense of the word in the appointment or continuation in office of Sardar Attaullah Mengal and his Council of Ministers. The learned Attorney-General is, therefore, clearly right in saying that so far as these prayers are concerned a petition at the instance of the petitioner is not maintainable. But the earlier part of the paragraph which is not separately numbered is clearly one which falls within clause (b) sub-clause (ii) of the Article 201 of the Interim Constitution, the Constitution which I have referred to. They are in fact, as is expressly stated, prayers for the grant of a writ in the nature of Quo Warranto; such a writ, it is well-known, could be granted at the instance of any person and not necessarily at the prayer of one who was an aggrieved party and that position is expressly maintained m the two Constitutions for clause (b) starts with the expression. "On the application of any person." Right, therefore, thought the learned Attorney-General is in his contention that contention does not suffice to dispose of the entire petition; it is true that he also goes on to say that this petition has not been bona fide made and that we have a discretion in the matter which, in the circumstances of the case, we should refuse to exercise in favour of the petitioners. That is a different argument which I shall consider hereinafter.
5. Now the first contention of learned Council for the petitioner is that Article 136 of the Interim Constitution did not authorise the President to remove the Governor's Council of Ministers headed by the Chief Minister of that Province which under clause (b) of the first proclamation, the President has in fact ordered and described as incidental and' consequential provisions. Now it is not argued that the direction which he has given and is contained in clause (a) of the proclamation, namely, that the Governor of the Province should assume, on his behalf, all the functions and powers of the Government of that Province .and all or any of the powers vested in or exercisable by any body or authority in that Province other than the Provincial Legislature it is conceded that Article 136 does give this power. It is contended, however, that under Article 104 it was mandatory for the Governor to appoint as Chief Minister a person as to whom he was satisfied that he commanded the confidence of the majority of the total members of the Assembly. It is, therefore, argued that, despite the proclamation under Article 136, Article 104 continued to operate and since there already was a Chief Minister duly appointed by Governor who had taken the oath of office that Chief Minister must be deemed to have continued. This argument I find myself entirely unable to accept. The Interim Constitution, as indeed any legislative instrument, must I think be so constructed as to give effect to all parts of it and to reconcile the provisions with one another and there can be no question of choosing between the provisions unless indeed there is such absolute conflict between two provisions that upon no reasonable interpretation can they both be given effect to. It is unnecessary just now to quote the entire Article 136 but clause (1) thereof may usefully be reproduced;
"136.--(1) If the President, on receipt of a report from the Governor of a Province, or information from any other source, is satisfied that a situation has arisen in which the Government of a Province cannot be carried on in accordance with the provisions of this Constitution, the President may by proclamation-
(a) assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in or exercisable by any body or authority in the Province other than the Provincial Legislature;
(b) declare that the powers of the Provincial Legislature to make laws shall be exercisable by or under the authority of the Federal Legislature;
(c) make such incidental and consequential provisions as appear to the President 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 Constitution relating to any body or authority in the Province:
Provided that nothing in this Article shall authorise the President to assume to himself or direct the Governor of the Province to assume on his behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of this Constitution relating to High Courts:"
It will be seen that the Article authorises the President to direct the Governor to assume to himself or to assume on behalf of the President all or any of the functions of the Government and all or any of the powers vested in or exercisable by any body or authority in the Province other than the Provincial Legislature. Clearly, therefore, the manifest purpose of Article 136 is to authorise the President to vest in the Governor or in the Governor on behalf of himself, the entire executive authority of the Province. That authority is otherwise exerciseable by the Governor under Article 104 of the Interim Constitution but clause (4) of Article 104 reads;
"104. (4) In the exercise of his functions, the Governor shall act in accordance with the advice of the Council of Ministers or, as the case may be, the appropriate Minister, except as otherwise provided in this Constitution."
In the absence, therefore, of a proclamation issued under Article 136, the Governor was required to act in accordance with the advice of the Council of Ministers, but it is to be noted that the clause expressly says "except as otherwise provided in this Constitution". Now it seems to me to be an impossible situation to require the Governor, on the one hand to assume the executive authority of the Province on behalf of the President and all the functions of the Government of that Province and yet to require that in the exercise of his functions he shall act in accordance with the advice of his Council of Ministers. Even if that phrase "except as otherwise provided in this Constitution" did not occur in Article 104 (4) 1 should have been inclined to hold that the only way of construing these two Articles together is to hold that while a proclamation under Article 136 is in force and necessary directions have been given under sub-clause (a) of clause (1) of that Article there can be no question of the Governor seeking or acting upon the advice of the Ministers. The position, I think, is made even plainer by sub-clause (c) of clause (1) of that Article which authorises the President to make" such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the proclamation". Now the stated object of the proclamation was that the Government of Baluchistan having failed to take effective measures in certain matters, a situation has arisen in which the Government of that Province could not be carried on in accordance with the provisions of the Interim Constitution and that consequently the national interests require the making of a proclamation. If that be so, and I think we cannot go behind the stated object. I am wholly unable to see how the Ministers could well continue in office while the proclamation was in force. Indeed sub-clause (c) of Clause (1) of Article 136 even includes the power to make provision for suspending the whole or in part the operation of any provisions of the Interim Constitution relating to any body or authority in the Province; a clear indication that if the provision of the Interim Constitution which authorised or required the existence of any other body or authority could be said to come into conflict with the effective enforcement of a proclamation made by the President under Article 136, the President could under Article 136 suspend…
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