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Petitioner: A. K. M. FAZLUL QUADER CHOWDHURY VS Respondent: GOVERNMENT OF PAKISTAN
P L D 1957 Dacca 342
P L D 1957 Dacca 342
(Special Statutory Jurisdiction)
Before Ispahani and Khan, JJ
A. K. M. FAZLUL QUADER CHOWDHURY ----Petitioner
versus
GOVERNMENT OF PAKISTAN and another -----Respondents
Writ Petition No. 355 of 1956, decided on 8th February 1957,
(a) Constitution of Pakistan, Art. 170‑----Elections‑Writ of mandamus‑Petition must show some present right or interest of petitioner which has been threatened‑Joint electorates for elections to East Pakistan Assembly and to National Assembly from East Pakistan prescribed by S. 3, Electorate Act (XXXVI of 1956), resulting possibly in Hindu voters not voting for petitioner who was a Muslim Leaguer‑No justification for issue of writ of mandamus‑Constitutionality of Legislation not to be examined on a mere petition without special injury.
The petitioner had alleged that by the passing of the Electorate Act (XXXV.I of 1956) by the National Assembly, section 3 of which prescribed joint electorate for elections to the East Pakistan Assembly and to the National Assembly, from East Pakistan, his prospects at the election in the future had been affected seriously, in that, the petitioner being a Muslim Leaguer, Hindu voters, in a joint electorate, would not vote for him. The petitioner therefore sought to impugn the Electorate Act by a petition for a writ of mandamus.
Held, that the petitioner had no existing right to apply for a writ of mandamus; he had no immediate interest of his own which had been affected or threatened to be affected by the impugned ct.
The petitioner's rights not being directly affected, he could not raise the question of the constitutionality of the Act.
The prospective right of franchise of the petitioner is not enforceable by invoking the extraordinary writ jurisdiction of the High Court.
Moreover, the petitioner's right to stand 4s a candidate for elections either to the East Pakistan Provincial Assembly or to the National Assembly had not yet accrhed, because no Electorate laws, as contemplated in Article 144 under Chapter VIII of the Constitution, had yet been enacted.
The petitioner's right at present was non‑existent, being only potential and inchoate.
In no country was the constitutionality ‑of a statute examined on a mere petition to a superior Court. In other words, advisory opinions or declaratory judgments on the constitutionality of legislation could not be given apart from some concrete injury or controversy.
Halsbury's Laws of England, Vol. 9, Second tdition, p. 744, Articles 1269, 1270, p. 768, Article 1303, p. 770, Article 1305.
Carlsbad Mineral Water Mfg. Co., v. H, M. Jagtiani A I R 1952 Cal. 315, Charanjit Lai Chowdhury V, The Union of India and others A I R 1951 S C 41, In re: P Ramamoorrhi, petitioner A I R 1953 Mad. 94, The Queen v. The Guardians of the Lewisham Union L R (1897) 1 Q B D 498, J. At. Sen Gupta v. H. E. A. Cotton and others I L R 51 Cal. 874, Indiay Sugar Mills Association v. Secretary to Government, Uttar Pradesh Labour-Department A I R 1951 All. 1 (F. B.), Chotey Lai. The State of the Uttar Pradesh and others A I R 1951 All. 228 (F. B.), Bangalore District Hotel‑Owners' Association A I R 1951, Mysore 14 and Sheoshonkar v. State Govt. of Nadhya Pradesh and others A I R 1951 Nag. 58 (F. B.) ref.
(b) Constitution of Pakistan, Art. 170---‑Writ petition Ulterior purpose‑Not filed in good faith‑Petition not main tainable.
Where the petition for a writ of mandamus had been filed for an indirect purpose and ulterior motive, and not in good faith, Held, that the petition was not maintainable.
The petitioner alleged that he had come to Court because as a citizen of Pakistan he should see that the constitutional provisions were adhered to and that the laws were made in conformity with the constitutional provisions. At the hearing, however, his advocate tried to make out a case that as the personal right or interest of the petitioner had been jeopardized because of the passing of the Electorate Act, he had invoked the Court's extraordinary jurisdiction for the issue of a writ of mandamus.
Held, that the petitioner had raised the question of a personal right having been affected only when he was con fronted with that objection by the Attorney‑General on behalf of the Government and so the petition was not bona fide.
(c) Constitution of Pakistan, Art. 170‑---Writ petition Matter not urgent‑Other remedy not less convenient beneficial or effective‑Petition not maintainable.
Held, that Article 170 of the Constitution is not meant to provide an alternative method of redress to the normal process of decision in an action brought in the Civil Courts established by law. The powers under the said Article should be sparingly used and only in those cases where the rights of a person have seriously been infringed and he has no other adequate ‑and specific remedy.
Where other remedy was not less convenient, beneficial or effective, and there was no urgency in the matter, the High Court refused to exercise jurisdiction under Article 170:
Chotey Lai. v. The State of Uttar Pradesh and others A I R 1951 All. 228 (F. B.) ref.
(d) Constitution of Pakistan, Art. 170‑--High Court cannot issue writs beyond its territorial jurisdiction‑Principle that cause of action attracts jurisdiction, inapplicable Comparison with Art. 226 of Constitution of India.
Held, that although the words "within those territories" do not appear in Article 170, as they do in Article 226 of the Indian Constitution, the meaning of Article 170 is the same as the meaning of Article 226 of the Indian Constitution. These words are redundant.
Writs issued by the Court cannot run beyond the terri tories subject to its jurisdiction.
The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and does not apply to writs which are issued under Article 170, which makes no reference to any cause of action or where it arises.
Held, that the High Court had no jurisdiction to entertain a writ petition praying for a writ of mandamus against the Government of Pakistan and the Secretary, Ministry of Law both of which were at Karachi, beyond the Court's jurisdiction calling in question the constitutionality of the Electorate Act (XXXVI of 1956) passed by the National Assembly at Dacca.
Maqbulunissa and others v. Union of India and another A I R 1953 All. 477 (F. B.) ref.
(e) Interpretation of Statutes‑---Words to be given plain meaning.
Robert Wigram Crawford v. Richard Spooner 4 Moore's I A 179 at p. 187, Nokes v. Doncaster Amalgamated Collieries, Ltd. L R 1940 A C 1014 at p. 1022 and Hoani Te Heuheu Tukino v. Aotea District Maori Land Board A I R 1941 P C 109 ref.
(f) Interpretation of Statutes----Reference to opinions and motives of Legislatures Sometimes permissible Constitution of Pakistan, Art. 145.
In some instances the Courts have referred to debates of the members of legislatures particularly where such debates are available when the law is being construed.
In interpreting Article 145 of the Constitution of Pakistan with reference to the question of the bearing of that Article on the constitutionality of the Electorate Act (XXXVI of 1956), the Court referred to the official report of the Constituent Assembly of Pakistan debates.
Tamizzuddin Khan's case P L D 1955 F C 240 ref.
Odgers on the Construction of Deeds and Statutes, Second Edition, page 199.
(g) Constitution of Pakistan, Art. 145---‑Interpretation Joint or separate electorate Electorate Act (XXXVI of 1956).
The plain meaning of Article 145 is that the .Constituent Assembly instead of deciding what principle should operate in regard to election to the East Pakistan and West Pakistan Assemblies or to the National Assembly left it to be decided by an Act to be passed by the National Assembly. The power was delegated to the National Assembly to pass an Act after ascertaining the views of the Provincial Assemblies providing for elections to the three Assemblies to be held on the principle of joint electorate or separate electorate and not on the principle of either joint electorate or separate electorate. The Article left to the Assemblies concerned to arrive at a decision as to whether they would have elections on the basis of joint or separate electorate and that view has been incorpo rated in the Electorate Act (XXXVI of 1956).
(h) Writ petition‑Costs‑---Petition preferred with ulterior motive‑Petitioner burdened with costs.
Dates of hearing: 14th, 15th & 16th January 1957.
JUDGMENT
ISPAHANI, J. ‑----The petitioner before us is Mr. A. K. NM. Fazlul Quader Chowdhury, who has filed this petition for a Writ of mandamus under Article 170 of the Constitution of the Islamic Republic of Pakistan. He has challenged the validity of the Electorate Act, 1956, and has prayed for the issue of a writ of mandamus or a writ of the like nature or other appropriate writ to direct the respondents, the Govern ment of Pakistan and the Secretary to the Government of Pakistan Ministry of Law, Karachi, to stop the operation of the Electorate Act, 1956 (Act XXXVI of 1956), and all other activities incidental or consequential thereto, and to refrain from proceeding with the delimitation work or any other matter.
The petitioner alleges that he is a citizen of Pakistan having his residence within East Pakistan and he is also a member of the East Pakistan Provincial Assembly and is interested in the subject‑matter of this petition because his personal right or interest is affected by the Electorate Act passed by the National Assembly of Pakistan holding its sitting at Dacca, in violation of the provision of Article 145, of the Constitution. He alleges that the Constitution has guaranteed certain fundamental rights to the citizens of Pakistan and has provided for the guidance of the State policy and carrying out the legislative function for the Legislature and the Executive function of the Government in accordance with the provisions of the Constitution. He alleges further that the Constitution also authorised Parliament by Article 145 to decide the principle of electorate by an Act. The said Article is as follows:
"Parliament may, after ascertaining the views of the Provincial Assemblies and taking them into consideration, by Act provide whether elections to the National Assembly and Provincial Assemblies shall be held on the principle of joint electorate or separate electorate, and may in any such Act provide for all matters incidental and consequential thereto."
Pursuant to the provisions of Article 145, the Provincial Assembly of West Pakistan expressed its view in favour of separate electorate, while the East Pakistan, Assembly expressed its view in favour of joint electorate. The National Assembly of Pakistan in its session at Dacca passed a bill providing for separate‑ electorate for West Pakistan and joint electorate for East Pakistan and the same, having been assented to by the President on 30th October 1956, has become an Act of Parliament, namely, the Electorate Act, 1956 (Act XXXVI of 1956). Section 3 of the said Act is as follows:‑
"Principle of electorate‑
(1) Elections to the National Assembly shall be held‑
(a) as to constituencies in East Pakistan and candidates for election for those constituencies, on the principle of joint electorate; and
(b) as to all other constituencies and candidates for elec tion for those constituencies, on the principle of separate electorate.
(2) Election to the Provincial Assemblies shall be held in East Pakistan as provided in clause (a) of the preceding subsection and in West Pakistan as provided in clause (b) of that subsection."
The petitioner alleges that the Electorate Act is void, ultra vires and inoperative for the following reasons:‑
(1) The said Act is beyond the legislative competence of the Parliament, being in contravention of the clear and unambiguous provision of Article 145 of the Constitution.
(2) The said Act runs counter to the spirit and provisions of the Constitution and is calculated to disrupt the parity and unity between the two Provinces of Pakistan and to drive them to change their national outlook in two different directions and for growth in a different manner.
(3) The said Act discriminates between the citizens of West Pakistan and the citizens of East Pakistan inasmuch as it classifies the citizens of the State into three groups in contravention of Article 5 of the Constitution.
(4) The said Act is not bona fide and was passed arbitrarily with ulterior motive.
It is further alleged that, in accordance with the provisions of Article 145, the Act must either provide the principle of joint electorate or separate electorate for holding elections to the National Assembly and the Provincial Assemblies and the said provisions must be uniform all over the country.
The petitioner states that the Government of Pakistan has expressed the intention to hold the General Election shortly after the delimitation of constituencies has been made. The Delimitation Commission constituted by the President of Pakistan is doing the delimitation work for the purpose of holding General Elections to the National Assembly and the Provincial Assemblies in terms of the said Electorate Act and the said Commission has actually delimited constituencies in East Pakistan on the principle of joint electorate in terms of clause (a) of subsection (1) of section 3 of the Electorate Act by which the petitioner has been injured and prejudiced.
On these allegations, the petitioner has come before this Court for a writ of mandamus or any other appropriate writ or direction to direct the respondents to stop the operation of the Electorate Act and all other activities connected thereto and to refrain from proceeding with the delimitation work or any other matter.
An affidavit in opposition is filed on behalf of the Govern ment of Pakistan and from the papers filed before us and from the arguments advanced on behalf of the respective parties, the questions that arise for decision are:
(1) Whether the petitioner has any legal right to come to this Court for the issue of a writ of mandamus or whether the petitioner has any personal immediate interest in filing this petition apart from the general interest that he may have with hundred or thousand others arid whether the petitioner's personal right has been affected by the impugned Act;
(2) Whether the petitioner has any other alternative specific legal remedy for enforcing such a right:
(3) Whether this Court has jurisdiction to issue a writ, as prayed for, against the Government of Pakistan having its permanent seat at Karachi, which is beyond the jurisdic tion of this Court, and against the second respondent, who is also a resident of Karachi;
(4) Whether the impugned Act violates the provisions of Article 145 of the Constitution and whether the said Act is illegal, void and ultra vires of the Constitution.
It will be convenient to take up the first two points together. The learned Advocate for the petitioner has con tended that his client has a legal right to come before this Court for the issue of a writ of mandamus because he has a personal interest which has been affected by the passing of the impugned Act, although the general public are also interested. As a citizen of Pakistan, it is argued, the petitioner is entitled to stand for election to the fast Pakistan Assembly and to the National Assembly of Pakistan. The impugned Act has affected the right of the petitioner, because it has provided for the principle of joint electorate for elections to the East Pakistan Provincial Assembly and to the National Assembly of Pakistan. The learned Advocate informed us that the petitioner belongs to the Muslim League Party and is a believer in sepa rate electorate and has expressed his views in favour of the principle of separate electorate for elections to the East Pakistan Provincial Assembly and to the National Assembly. By such expression of his views, he has lost the sympathy of the Hindus and, if the election to the Provincial Assembly of East Pakistan is held on the principle of joint electorate and if he be a candidate for the same, he will not receive the votes of the Hindu voters and his chances of success will be entirely lost. If the election is held on the principle of separate electorate, the Muslims will vote for him and the Hindus will vote only for the Hindu candidates in the Muslim and Hindu constituencies respectively; and, therefore, his chances of success to be elected will be cent. per cent. The delimitation under the impugned Act has taken away some Muslim voters and brought in some Hindu voters and the interest of the petitioner has, therefore, been jeopardized. The Hindu voters, it is contended, have become entirely antagonistic to him because he is a believer in the principle of separate electorate and he has given public expression to his views. Thus, it is argued, by the passing of the impugned Act, the petitioner's prospect of standing as a candidate for election to the East Pakistan Provincial Assembly and to the National Assembly in the future has been affected seriously.
In answer to the arguments advanced on behalf of the petitioner, learned Attorney‑General for the Government of Pakistan has argued that the petitioner has no present legal right or interest to come to this Court for the issue of a writ of mandamus and, assuming he has any right or interest, he has other specific legal remedy for the enforcement of such a right. He has contended that the provisions of Part VIII of the Constitution have still to be implemented and that the right of the petitioner to stand as a candidate or vote in the General Election to be held has not yet accrued, because the electoral laws under Article 144 have not been passed yet. He has urged further that the petitioner had ample opportu nity to seek relief by way of a declaratory suit with a prayer for injunction in the Civil Court after the first petition filed by him was rejected by the Vacation Bench in October last.
We may quote certain passages appearing in Halsbury's Laws of England, Volume 9, Second edition: At page 744, Article 1269 is as follows:‑
"The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior Court, requiring him or them to do some particular thing therein specified which apper tains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice and, accordingly, it will issue to the end that justice may be done, in all cases, where there is a specific legal right and no specific legal remedy for enforcing such right, and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial and effectual."
Article 1270 is as follows:‑
"The grant of a writ of mandamus is, as a general rule of right and it is not issued as a matter of course . . . . . ."
At page 768, Article 1303 is as follows:‑
"The applicant for a writ of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought. In order, therefore, that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposes a legal duty. It is only in respect of a legal right that mandamus will lie. The Court will not, therefore, enforce an equitable right by this remedy."
At page 770 in Article 1305, the following passage occurs:‑
"the mere fact that a person is interested in the performance of a duty as a member of a class of persons, all of whom may be regarded as equally interested, but himself having no particular ground for claiming such performance, or that he has some ulterior purpose to serve, but no immediate interest on his own or any other person's behalf, will not be sufficient grounds for granting a mandamus."
In this connection, it will be apt to quote Carlsbad Mineral Water Mfg. Co., Ltd. v. H. M. Jogtiani (A I R 1952 Cal. 315), in which J. P. Mitter, J., laid down some conditions precedent to the issue of mandamus, they being (i) that the applicant for a writ of mandamus must show that there resides in him a legal right to the performance of a legal duty of the party against whom the mandamus is sought; (ii) the Court will not interfere to enforce the law of the land by the extraordinary remedy of a writ of mandamus in cases where an action at law will lie for complete satisfaction. In order, therefore, that a mandamus may issue to compel something to be done, it must be shown that the statute imposes a legal duty; (iii) the writ is only granted to compel the performance of duties of a public nature; (iv) the Court will, as a general rule, and in the exercise of its discretion, refuse a writ of mandamus when there is an alternative specific remedy at law which is not less convenient, beneficial and effective, (v) when mandamus is refused on the ground that there is another special remedy, it is a remedy at law that is referred to.
Judged by the above principles, we find that the present application must fail on this preliminary point.
In our opinion, the applicant has failed to show that he has an existing right to apply for a writ of mandamus or he has an immediate interest of his own which has been affected or threatened to be affected by the impugned Electorate Act in question.
Learned Advocate for the petitioner in his arguments before us has practically admitted that his client has no present right, but has what he calls a potential or inchoate right. He has argued that by the passing of the Electorate Act, the prospects of his client to stand as a candidate in the ensuing General Elections to the East Pakistan Provincial Assembly and to the National Assembly have been seriously prejudiced because the Hindu voters will not vote for him as he has already antagonized their sympathies by his declaration in favour of separate electorate and, as such, it is contended, the petitioner's personal interest has been affected. If we have understood the learned Advocate right, the petitioner has no present right or immediate interest of his own which has been affected or threatened to be affected to enable him to invoke the extraordinary jurisdiction of this Court by way of a writ of mandamus. The prospective right of franchise of the petitioner is said to be involved in this case and such a prospective right is not enforceable by invoking the extraordi nary jurisdiction of this Court. The petitioner's right to C stand as a candidate for elections either to the East Pakistan Provincial Assembly or to the National Assembly has not yet accrued, because no Electorate Laws, as contemplated in Article 144 under Chapter VIII of the Constitution, have yet o been enacted. Thus the petitioner's right at present is non existent and is potential and inchoate. To enforce such a right, the extraordinary powers of this Court cannot be invoked. We may state that the petitioner has filed the present application on the ground that he is a citizen of Pakistan and, as such, he should see that the constitutional provisions are adhered to and laws are enacted in accordance with the provisions thereof. He has not stated any where in his application that he has any present immediate right or interest and that right has been infringed by the passing of the impugned Act. In Charanjit Lal Chowdhury v. The Union of India and others (A I R 1951 S C 41) it was held inter alia that no one except those whose rights are directly affected by a law can raise A the question of the constitutionality of that law. In re: P. Ramamoorthi, petitioner (A I R 1953 Mad. 94) it was held that it is not within the Province of High Court to interfere, either suo moto or at the instance of any person, whenever there is any disregard or violation of any of the provisions of the Constitution. Its power under Article 226 of the Constitution can only be invoked at the instance of a person who has a personal grievance against any act of the State in its executive capacity which inflicts a legal injury on him, since the right which is the foundation of a petition under Article 226 of the Constitu tion or a corresponding provision is a personal an individual right. It was held further that a person either as a member of the Legislature or a citizen has no such personal and direct interest in the matter of the nomination of a member to the legislature as to enable him to invoke the provisions of Article 226 of the Constitution. It was held further that the political rights, if any, cannot come into play in a Court of law unless such rights have the character of a legal right. Having regard to these decisions, with which we entirely agree, we must hold that the petitioner has totally failed…
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