Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SH. MUHAMMAD HANIF VS Respondent: PROVINCE OF WEST PAKISTAN
P L D 1960 (W
P L D 1960 (W. P.) Lahore 889
Before Shabir Ahmad and Anwar‑ul‑Haq, JJ
Sh. MUHAMMAD HANIF‑Petitioner
Versus
PROVINCE OF WEST PAKISTAN AND ANOTHERS ---Respondents
Writ Petition No. 890 of 1958, decided on 27th May 1960.
(a) Punjab Municipal Act (III of 1911)------S. 255 and Punjab Municipal Election Rules, 1952, rr. 57, 67 and 67‑A‑Government ordering enquiry under. R. 67 pending election petition‑Disqualifica tion of candidate on report of enquiry officer‑Government competent to pass order under S. 255‑[Mehbub llahi v. West Pakistan Government etc. P L D 1957 Lab. 63 rel. ; Abdul Latif v. M. R. Inayat P L D 1956 Lab. 537 and Ghulam Muhammad Butt v. West Pakistan Province P L D 1956 Lab. 572 ref.]
(b) Punjab Municipal Act (III of 1911)----Ss. 240 and 258 Provincial Government may make rules to carry out purpose of Act including Chapter XIV‑Punjab Municipal Election Rules, 1952‑Intra vires‑[In re : Art. 143 Constitution of India and Delhi Laws Act 1912 etc., A I R 1951 S C 332 ; Harishankar Bagla and another v. The State of Madhya Pradesh A I R 1954 S C 465 ; Rajnarain Singh v. Chairman, Patna Administration Committee, Patna and another A I R 1954 S C 569 ; Jagadish Patel v. Patel Tobacco Co. & G. C. Sanka A I R 1952 Orissa 260 ; State v. Basdao A I R 1951 All. 44 ; Edward Mills Co. Ltd., Baswar and others v. State of Ajmer and another A I R 1955 S C 25 ; Baxter v Ah. Way (1909) 8 C L R 626, 637 (Aus.) and Sobho Gyanchandani v. Crown P L D 1952 F C 29 ref.]
(c) Punjab Municipal Election Rules, 1952----r. 67‑Refusal of Enquiry Officer to adjourn case for arguments not a denial of opportunity to defend.
(d) Writ‑----Costs awarded by Enquiry Officer appointed under r.67, Punjab Municipal Election Rules, 1952‑No interference by High Court under Writ Jurisdiction.
Muhammad Amin Butt for Petitioner.
Iftikhar‑ul‑Haq, for Respondent No. 1
M. S. Baqir and S. M. Zafar for Respondent No. 2.
Dates of hearing : 11th February 1960 and 9th May 1960.
JUDGMENT
S. A. HAQ, J.‑----The petitioner Sheikh Muhammad Hanif contested the election to the Municipal Committee of Lyallpur as a candidate from Ward No. 4, held on the 4th of January 1956, and was declared duly elected. Mr. S. M. Ilahi, respondent No. 2, one of the losing candidates, presented a petition to the Provincial Government on or about the 9th of January 1956, praying that an enquiry be made into the corrupt practices adopted by the petitioner during the election and that the election of the petitioner, be declared void. During the pendency of this petition, the Provincial Government ordered an enquiry under rule 67 of the Municipal Election Rules, 1952, into the election of the petitioner. The enquiry was first entrusted to the Deputy Commissioner, Lyallpur, then transferred to various other officers and finally completed by Mr. Abdul Latif Malik, the Revenue Assistant. Lyallpur, in pursuance of the report of the Enquiry Officer, the Governor of West Pakistan passed an order on the 13th of August 1958, purporting to be under section 255 of the Punjab Municipal Act, 1911, accepting the election petition filed by respondent No. 2 Mr. S. M. Ilahi and declaring void the election of the petitioner as a Municipal Commissioner from Ward No. 4 of Municipal Committee, Lyallpur, and further disqualifying the petitioner and his polling agent Mr. Aziz Ahmad for a period of five years from being elected or nominated to membership or to any other office, honorary or paid, of any Municipal Committee. The petitioner was also ordered to pay costs amounting to Rs. 41 to respondent No. 2.
2. By means of this petition, Sheikh Muhammad Hanif seeks to challenge the legality of the order of the Provincial Government. A large number of grounds of attack have been put forward. These may be briefly summarised as under :‑-
(a) that an enquiry under rule ‑67 of the Punjab Municipal Election Rules, 1952 could not be ordered during the pendency of the election petition filed by respondent No. 2 under rule 52 of the said rules.
(b) that no legal order could be made under section 255 of the Punjab Municipal Act, 1911, as no enquiry was conducted by a commission appointed under section 247 of the Act, and no proceedings were taken under Chapter XIV of the Act, which contains section 255.
(c) section 258 of the Act contemplates the framing of rules for carrying out the purposes of Chapter XIV of the Act, but no such rules have been framed paid, any action taken in accordance with rules framed under section 240 of the Act is, therefore, illegal in so far as the imposition of penalties pres cribed in Chapter XIV is concerned.
(d) that section 255 of the Punjab Municipal Act 1911, under which action has been taken against the petitioner, only confers upon the Provincial Government the power to declare the election of a candidate to be void, but does not confer any power for declaring a candidate to be incapable of being elected or nominated to any Municipal office for any length of time.
(e) that the provisions of subsection (2) of section 240 of the Municipal Act, 1911 are an instance of excessive delegation of legislative authority inasmuch as it is left to the Executive Authority to define "corrupt practices" and thus to create offences as well as to prescribe penalties which are properly the functions of the legislature.
(f) that in any case the petitioner was not given proper opportunity to defend himself before the Enquiry Officer anal thus the enquiry stands vitiated.
(g) that no costs could be awarded to respondent S. M. Ilahi as the order was finally passed in an enquiry held by the Government under rule 67 and not on the election petition of Mr. S. M. Ilahi.
(h) that the provisions of sections 240 and 255 of the Punjab Municipal Act, 1911, are discriminatory in character and offend against Article 5 (1) of the Constitution of the Islamic Republic of Pakistan.
3. At the time of hearing of the petition, the objections based on the alleged discriminatory character of the relevant provisions of the Punjab Municipal Act, 1911 were given up by the learned counsel for the petitioner, in view of the abrogation of the Constitution of 1956. Accordingly, we proceed to examine the other contentions raised before us.
4. As regards the first contention, that during the pendency of the election petition, Government could not order an enquiry under rule 67 of the Municipal Election Rules, 1952, it is enough to refer to a decision of a Division Bench of this Court in Mahbub Ilahi v. West Pakistan Government etc. (P L D 1957 Lah. 63). That judgment was given in Writ Petition No. 248 of 1956, brought by the respondent Mahbub Ilahi, praying that the Provincial Government be directed to continue the enquiry under rule 67 into the election, which is the subject‑matter of the present petition. Government had previously discontinued the enquiry in view of decisions in two cases, namely, Abdul Latif v. M. R. Inayat (P L D 1956 Lah. 537) and Ghulam Muhammad Butt v. West Pakistan Province (P L D 1956 Lah. 572). These two previous decisions were explained and distinguished by our learned brothers Kayani and Muhammad Sharif, JJ. and the following observations by Kayani, J. are directly relevant to the contention now raised :‑
"In the present case, even without the application of the petitioner, there was such wide‑spread discontent with the manner, in which the election had been conducted, and the employees of the mills had so notoriously. abused the law of election of a civilized country that the Government could not but feel compelled to order an inquiry as it did. In such a case, it should have made no difference, whether the petitioner had made an application or not. If some time later, an election petition had been filed, the Government might have thought it proper to appoint the same person, both as the election commission and the inquiring officer, so as to avoid a conflict of inquiries,
"I need hardly point out that once the Government direct an inquiry under rule 67, the officer appointed to hold it is, by virtue of rule 67‑A, deemed to be a "commission" within the meaning of rule 57 and once a matter is entrusted to a commission, the rules are so framed that the Government have no concern with the matter until a report is sent by the commission to the Government and orders passed thereon under sections 254 and 255 of the Municipal Act,
"I would, therefore, accept this petition with costs and direct that the inquiring officer should proceed with the inquiry, as though he were hearing an election petition."
5. We are in respectful agreement with the observations just cited and consider that the enquiry has rightly proceeded and the fact that the respondent S. M. Ilahi had also presented a petition or application to the Government, does not, in any manner, vitiate the proceedings of the enquiry.
6. The observations of Kayani, C. J., reproduced above, also go a long way in repelling the other allied contentions raised on behalf of the petitioner, namely, that as there are no rules framed under section 258 of the Punjab Municipal Act, no valid order could be passed under section 255 of the Act in pursuance of an enquiry conducted in accordance with rules framed under section 240 of the Act. In the first place, we find that section 240 of the Punjab Municipal Act contemplates that the Provincial Government may make any rules consistent with the Act, to carry out the purposes thereof. Chapter XIV of the Act, which contains sections 247, 255 and 258 is clearly a part of the Act, and, therefore, it is open to Government to frame rules C under section 240 of the Act, so as to carry out the purposes of Chapter XIV as well. Chapter XIV was introduced in 1933 by the Punjab Municipal Amendment Act, 1933, and the rules under section 240 of the Act were revised in 1952. It, therefore, appears to us that the revised rules were clearly intended to cover the purposes of Chapter XIV as well. It is true that section 258 of the Act also contemplates that the Government may make rules for carrying out the purposes of this Chapter, but the provision is not mandatory in nature and there was thus no D obligation on the Government to make separate rules under that section, especially when rules framed under section 241 of the Act cover subjects mentioned in Chapter XIV. In other words, we are of the view that any action taken under any of the provisions of Chapter XIV is not rendered invalid or illegal simply for the reason that the procedure followed is the one prescribed in rules framed under section 240 and not under section 258 of the Act. This being the case, it was open to the Government, to pass an order under section 255 of the Municipal Act on the conclusion of an enquiry held under rule 67 of the Punjab Municipal Election Rules, 1952. It will also be appreciated, as pointed out by Kayani, C. J., that an Enquiry Officer appointed under rule 67 is deemed to be a commission under rule 67‑A, and, therefore, Government is competent to pass an order under section 255 of the Act, on receipt of the report of such an Enquiry Officer.
7. The next contention is that section 255 of the Punjab Municipal Act does not confer any power on the Government to disqualify a candidate or his polling agent for any length of time, and the only action permitted by this section is that the election can be declared to be void. It is, therefore, argued that the order of the Provincial Government rendering the petitioner incapable of being elected or nominated to membership or to any office of any Municipal Committee for a period of five years is clearly illegal, being in excess of the power conferred on the Govern ment by law. This argument, however, overlooks the provisions of section 16 (2) of the Act, which runs as follows:‑-
"A person removed under this section or whose seat has been vacated under the provisions of section 14 (c) or whose election or appointment has been deemed to be invalid under the provisions of subsection (2) of section 24, or whose election has been declared void for corrupt practices or intimidation under the provisions of section 255 or whose election the local Government has, under section 24, refused to notify, shall be disqualified for election for a period not exceeding five years, provided that a person, whose election or appointment has been deemed to be invalid under the pro visions of subsection (2) of section 24, shall not be disqualified for election or appointment for a period exceeding two years from the date of disqualification."
8. It will be seen that once a person's election is declared void for corrupt practices or intimidation under the provisions of section 255, he shall stand disqualified for election for a period not exceeding five years by virtue of the provisions contained in subsection (2) of section 16 of the Act. In the present case, the petitioner's election was declared void for corrupt practices under section 255 of the Act, and, therefore, that declaration necessarily attracted the further penalty just mentioned. The disqualifying order is, therefore, within the ambit of law.
9. The next important contention raised by Mr. Muhammad Amin Butt, the learned counsel. for the petitioner, is that section 240 of the Punjab Municipal Act, 1911 is ultra vires of the powers of the legislature enacting it as it delegates excessive legislative authority to the Provincial Executive, so as to amount to legislative abdication. It is pointed out that the section contemplates that :‑--
(i) corrupt practices shall be defined by the Executive, thus conferring on the Executive, a power to creat offences.
(ii) the procedure for the investigation of corrupt practices shall be laid down by the Executive.
(iii) the penalties incurred for corrupt practices will also be regulated by the rules to be framed by the Executive.
10. We find that as far as the imposition of penalties is concerned, the Act itself contains substantive sections, namely, sections 16 and 255, which prescribe the penalties and these are the two sections which have been invoked in the present case. We do not, therefore, see any excessive delegation of legislative authority with regard to the imposition of penalties. As regards the procedure for investigating corrupt practices etc., it is well established that procedural matters are best left to be regulated by rules, which can appropriately be framed by the Executive Authority charged with the implementation of the legislative measure in question. It seems to us, therefore, that the only aspect of delegation which needs detailed consideration is the power given to the Executive to define "corrupt practices."
11. We may first consider the question, as to what are the permissible limits of delegation of legislative authority. This question came up for exhaustive examination before the Supreme Court of India In re: Article 143 Constitution of India and Delhi Laws Act, 1912 etc., (AIR 1951 S C 332). The following observations by Fazl Ali, J., are particularly relevant for our present purposes :‑
"(i) The legislature must normally discharge its primary legislative function itself and not through others.
(ii) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it incovenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation.
(iii) It cannot abdicate its legislative functions, and, therefore, while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature.
Delegated legislation, using the expression in the popular sense, has become a present‑day necessity and it has come to stay‑it is both inevitable and indispensable.
The complexity of modern administration and the expansion of the functions of the State to the economic and social sphere have rendered it necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. But while emphasizing that delegation is in these days inevitable, one should not omit to refer to the dangers attendant upon the injudicious exercise of the power of delegation by the legislature. The dangers involved in defining the delegated power so loosely that the area it is intended to cover, cannot be clearly ascertained and in giving wide delegated powers to Executive Authorities and at the same time depriving a citizen of protection by the Courts against harsh and unreasonable exercise of powers, are too obvious to require elaborate discussion."
12. Again in Harishankar Bagla and another v. The State of Madhya Pradesh (AIR 1954 S C 465), the following observations were made on this subject:‑--
The Legislature cannot delegate its function of laying down legislative policy in respect of the measure and its formation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into binding rule of conduct."
13. The same question of delegation of legislative power was once again the subject‑matter of consideration by the Supreme Court of .India in Rajnarain Singh v. Chairman, Patna Administration Committee, Patna and another (AIR 1954 S C 569), while dealing with the legality of the power conferred by the Legislature on the local Government of Bihar and Orissa to extend to Patna the pro visions of any section of the Bengal Municipal Act of 1884, "subject to such restrictions and modifications as the local Government may think fit". The conclusion arrived at by the learned Judges was as follows:‑--
"An executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms. But this much is clear that it cannot include a change of policy.
"As a part of an Act can be extended by an executive authority it follows that a section or sections also can be picked out and applied. Also for the same reason that the whole or a part of an Act can be modified, it follows that a section also can be modified. But when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole."
14. In Jagadish Patel v. Patel Tobacco Co. & G. C. Sanka (A I R 1952 Orissa 260), while considering the question of the legality of certain provisions of the Orissa Essential Articles Control and Requisitioning (Temporary Powers), Act, 1947, and of the Orissa Kendu Leaves (Control & Distribution) Order, 1949, their Lordships observed as follows :‑
"Once the Legislature declares the policy of law and fixes the legal principles which are to be controlled in given cases it may validly invest any administrative body with powers to ascertain facts and conditions to which the policy and principles apply.
"So long as some residuary power is retained by the legislature, delegation however wide in scope will not amount to abdication or self‑effacement."
15. In State v. Basdeo (A I R 1951 All. 44), while dealing with the powers delegated to the executive authority under the Defence of India Act, 1939, the learned Judges comprising the Division Bench observed as follows :‑
"Section 2 was not ultra vires of the Central Legislature on the ground that the Central Legislature by enacting it delegated its power of legislation to the Central Government. Further, it cannot be said that section 2 (3) was ultra vires on the ground that the legislature could not confer the power of creating offences upon anyone. There are examples of delegation by the British Parliament of the power to impose penalties and, as the power of the India Legislature is exactly the same as that of the British Parliament, it follows that section 2 (3) is not ultra vires.
"The powers of the Indian Legislature within its mandate are as plenary and full as those of the British Parliament. Provided that it has power to make laws with respect to the particular matter, it can make any laws which the British Parliament can. Once it acts within its scope, the difference between it and the British Parliament disappears."
"The real distinction between constitutional legislation and unconstitutional legislation is that the former is an exercise of the power of legislation conferred under the Constitution Act or mandate, and the latter is the evasion of the exercise of this power by delegating it to an outside authority."
16. We may next refer to the following observations which appear in Edward Mills Co. Ltd. Beswar and others v. State of Ajmer and another (A I R 1955 S C 25) : "when a Legislature is given plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power. A legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law‑making has to be discharged by the Legislature itself but delegation may be resorted to as a subsidiary or an ancillary measure."
17. In the body of the judgment their Lordships quoted with approval the following observations of O' Connor, J., of the High Court of Australia in the case of Baxter v. Ah‑Way ((1909) 8 C L R 626 at p. 637 (Aus)) :‑
"The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the applica tion of the law. But it is not possible to provide specifically for all cases and therefore, legislation from the very earliest times, and particularly in modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied."
18. The question of legislative delegation was also considered at some length by the Federal Court of Pakistan in Sobho Gyanchandani v. Crown (P, L D 1952 F C 29). The particular point before their Lordships was about the legality of the power conferred on the Central Government by the Public Safety Ordinance, 1949, to extend the life of the Ordinance from time to time by notifications in the Official Gazette. Abdul Rashid, C. J., expressed the following views :‑
"A Legislature cannot delegate its powers of making, modifying, or repealing any law to an external authority. If it does so, it would be creating a parallel Legislature. The power of extending the duration of an enactment which would have terminated but for the interference of the external authority, is the exercise of legislative powers by an external authority and is invalid. Extension of the life of an Act is tantamount to re‑enactment "It is the nature of the power rather, than the manner of exercising it which determines whether the delegation is proper or invalid.
* * * * * * * * ** * * There is no analogy between conditional legislation which authorized an outside authority to determine its commencement and the power to determine the life of the Act itself. The power of extending the life of an Act is really a power to bring the Act into existence for a further period, and it is, there fore, identical with the power of re‑enactment. The power to extend the life of an Act cannot be regarded as conditional legislation."
19. While commenting on the same point A. S. M. Akram, J. remarked as follows :‑--
"I think it cannot be denied that a substantial delegation of powers becomes necessary in the evergrowing complexities of a modern State, but the question arises what should be the limits of such a delegation. In my opinion, matters of a fundamental nature or of general policy or of great importance, cannot be delegated, though powers may be assigned within reasonable limits and scope, such as, the determination of time, place, persons, dutiable commodities etc., so that rules, regulations, schemes and bye‑laws may be made by anyone empowered to do…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.