P L D 1955 Federal Court 522

P L D 1955 Federal Court 522

(Appellate Jurisdiction)

Present: Muhammad Munir, C. J., A. S. M, Akram, A. R. Cornelius, Muhammad Sharif and S. A. Rahman, JJ

THE FEDERATION OF PAKISTAN—Appellant

versus

(1) ALI AHMAD HUSSAIN SHAH-(Plaintiff)

(2) UNION OF INDIA--Respondents

Civil Appeal No. 14 of 1953, decided on 21st May 1955.

(On appeal from the judgment and decree of the High Court of Judicature at Lahore, dated the 23rd January 1946, in Regular First Appeal No. 286 of 1943).

(a) Privy Council (Abolition of Jurisdiction) Act, 1950—Not assented to originally by Governor-General--Validation by Governor-General's Proclamation of Emergency of 16th April 1955-Act part of law of Pakistan.

The Privy Council (Abolition of Jurisdiction) Act is at present good and valid law.

Basis for opinion of majority of Court: Although not originally assented to by the Governor-General and although supposed thus to have been declared invalid by the judgment of the Federal Court in Maulvi Tamizuddin Khan's case (P L D 1955 F C 240), the Act, having been validated temporarily and retrospectively by the Governor-General's Proclamation of Emergency of 16th April 1955, is at present a valid law.

Per Muhammad Munir, C. J. (A. S. M. Akram and S. A. Rahman, JJ. concurring):—The Governor-General has the authority temporarily and retrospectively to validate the laws whose invalidity followed from the judgment of this Court in Maulvi Tamizuddin Khan's case and since the Privy Council (Abolition of Jurisdiction) Act, 1950, is one of the laws thus validated by the Governor-General, it is a part of the law today.

Governor-General's Reference under S. 213, Government of India Act, 1935,.P L D 1955 F C 435 rel.

Usif Patel’ s v. Crown P L D 1955 F C 387 ref.

Cornelius, J. arrived at the same main conclusion, by a different process of reasoning: "The case of a law which does not provide a specific date for its commencement, and would therefore under the ordinary law be deemed to commence from the date on which assent is given is, however, distinguishable from the case of a law, which itself fixes the date of its commencement. The Privy Council (Abolition of Jurisdiction) Act, 1950 does fix the date of its commencement namely the 1st May 1950. This provision is part of the law as made by the Constituent Assembly, and becomes valid upon the law receiving the assent of the Governor-General, whenever that may be accorded".

Section 2 of the Emergency Powers Ordinance (IX of 1955) has the effect of granting such assent upon the date of the Ordinance viz., the 27th March 1955.

(b) Constituent Assembly—Adding to ifs personnel by Constituent Assembly for Pakistan (Increase and Re-distribution of Seats) Act, 1949, which had not the assent of the Governor-General—Whether legislation subsequent to Act invalid—Privy, Council (Abolition of Jurisdiction) Act, 1950—Validity of.

As a result of the judgment in Maulvi Tamizaddin Khan's case (P L D 1955 F C 240) all laws passed by the Constituent Assembly required for their validity the, assent of the Governor-General. The Constituent Assembly for Pakistan (Increase and Re-distribution of Seats). Act, 1949. by which the Assembly added 6 members to its personnel, had not had such assent, and an argument was raised that the Privy Council (Abolition of Jurisdiction) Act, 1950 having been passed by an illegally constituted Assembly, was invalid and did not give jurisdiction to the Federal Court to hear the present appeal.

Opinion of majority of Court (Muhammad Munir, C. J. A. S. , M. Akram and S. A. Rahman, JJ. as set out in the leading judgment of Muhammnd Munir, C. J. differed from the opinion of Cornelius, J. on the question involved in. the argument.

Per Muhammad Munir, C. J.—"The general rule is that if Legislature illegally adds to its members and the persons so added take part in discussion and voting, the laws passed by it are void. In the case of companies and statutory bodies, like municipal corporations, the rule is well-settled that the proceedings of such bodies vitiated by strangers taking part in and voting at their meetings".

"Since the Privy Council (Abolition of Jurisdiction) Act, 1950, was passed not by the Constituent Assembly as defined by section 19 (3) (b) (Indian Independence Act, 1947), but by that Assembly with six illegally added members, it was not a valid law, having been passed by an illegally constituted Legislature of the Dominion".

[The Privy Council (Abolition of Jurisdiction) Act, 1950 was, however, held valid on the ground of" civil or State necessity, having been validated by the Governor-General's Proclamation of Emergency of 16th April 1955.

Cornelius, J.—".... as a juristic person, a corporation is distinct from the corporators, and certainly, it cannot be right to think that the acts of such a juristic person are vitiated ex post facto because of the discovery made subsequently that some of the corporators, who participated in the acts of the corporation perfectly bona fide, lacked the necessary qualification or were otherwise not validly appointed or included as corporators".

"....where the defect is of subsequent discovery, and the inclusion and participation of the affected members is entirely bona fide, their presence cannot operate to vitiate either the constitution of the corporation or the acts of such corporation".

The Act was therefore held to be good and valid.

Devi Ditta Mal v. Standard Bank of India A I R 1927 Lah. 797, Briton Medical etc. Association v. Junes 61 L T 384, Halsbury's Laws of England 2nd Edition in the monograph on "Corp ration" paragraph 29, and Bagchi, Principles of the Law of Corporations 1928 Edition ref''.

(c) Privy Council (Abolition of Jurisdiction) Act, 1950, S. 2—"Pakistan appeal' —Federal Court's jurisdiction to determine even if liability involved that of Indian Dominion (Republic)—Indian Independence (Rights, Property and Liabilities) Order 1947, Art. 8.

The definition of the expression "Pakistan appeal" as it appears in section 2 Privy Council (Abolition of Jurisdiction) Act, 1950 is an "appeal from or in respect of any judgment; decree or order of any Court or tribunal (other than the Federal Court) in Pakistan." The cause of action in this suit was an order of dismissal from public service made by the Divisional Superintendent of the N.-W. Railway, Multan Division, in respect of the plaintiff who was then a permanent Way Inspector posted at Lodhran in the Multan Railway Division. Lodhran and Multan are in Pakistan. The suit was instituted in the Court of the Senior Sub-Judge, Multan and was decided by a First Class Sub-Judge, of that place. The appeal was heard and decided by the Lahore High Court, which, since, the Partition, is a Court in Pakistan. Therefore, the appeal pending before the Privy Council on the 1st May 1950 from the order of the Lahore High Court, was a Pakistan appeal and the Federal Court therefore had jurisdiction to dispose of it.

This jurisdiction was not affected by the consideration that the satisfaction of any decree in favour of the plaintiff which the Federal Court might award, might in the result prove to be a liability of the Dominion of India under Art. 8, Indian Independence (Rights, Property add Liabilities) Order 1947.

Viewing the agreement between the plaintiff and the Governor-General-in-Council as a contract of service, the case fell within the provisions of Article 8 of the Order which provides in its first subsection that with the exception of contracts which are "for purposes which as from that day (i.e., the day of Partition) are exclusively purposes of the Dominion of Pakistan", all contracts made on behalf of the Governor-General-in-Council should as from the date of Partition be deemed to have been made on behalf of the Indian Dominion. In the present case, the contract of service was terminated, by unilateral act of the Governor-General-in-Council, on a date seven years in advance of the date of Partition. It was impossible to regard the contract as being exclusively for the purposes of the Dominion of Pakistan after the date of Partition, since it was not subsisting on that day. The liability in the present case fell on the Indian Dominion, in the first instance, subject to any agreement which might be made between the two countries as to the source from which the liability was to be met.

Decree for declaration was given against the Indian Dominion (Republic).

(d) Tort—Action against Crown does not lie.

No action in tort can lie against the Crown.

Action against Crown based on wrongful dismissal of public servant should lie either on the basis of contract or on a right of action conferred by statute.

Mr. I. M. Lall A I R (35) 1948 P C 121= P D 1948 P C150 ref.

(e) Public servant—Suit against Crown for arrears of pay, even if based on contractual obligation, not maintainable—Public policy.

There is a rule of public policy applicable to every for public servant which prevents them from suing the pay, on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, and consequently "their only remedy under that contract lies in an appeal of official or political kind."

In the present case there was an undertaking to pay salary to the servant so long as he remained in service, and the relief awarded was confined to a mere declaration that the plaintiff was still in service on a particular day.

Faiyaz Ali Advocate-General of Pakistan (Abdul Haq, Advocate, Federal Court, with him) instructed by Iftikhar-ud‑Din, Attorney for Appellant.

M. Anwar, Advocate, Federal Court, instructed by M. A. Richman, Attorney, for Respondent No. 1.

Respondent No. 2 : Ex parte.

Dates of hearing : 6th, 13th April and 19th May 1955.

JUDGMENT

MUHAMMAD MUNIR, C. J.—I concur in the order proposed by, my brother Cornelius to be made in this appeal, and in the view that the appeal is a Pakistan appeal. But on the main point in the case, I regret, I differ from him.

In Special Reference No. 1 of 1955 by the Governor-General under section 213 of the Government of India Act, 1935, (1), this Court has recently expressed the opinion that the Increase And Re-distribution of Seats Act, 1949, by which the Constituent Assembly added six members to its personnel without obtaining to that Act the assent of the Governor-General was invalid, and that therefore the Constituent Assembly, after the addition of these six members, ceased to be the Constituent Assembly for Pakistan, as defined in section 19 (3) (b) of the Indian Independence Act, 1947. This result must follow unless, contrary to this Court's decision in Maulvi Tamizuddin Khan's case (2), we are prepared to hold that the Constituent Assembly could without a properly assented Act, add any number of persons to itself. The general rule is that if a Legislature illegally adds to its members and the persons so added take part in discussion and voting the laws passed by it are void. In the case of companies and statutory bodies like municipal corporations, the rule is well settled that the proceedings of such bodies are vitiated by strangers taking part in and voting at their meetings. Section 66 of the Government of India Act, 1935, which provides that the Provincial Legislature shall have power to act notwithstanding any vacancy in the membership thereof, and that any proceedings in that Legislature shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings, is an express departure from that general principle. This section was intended to provide that the laws passed by a Provincial Legislature are valid, even though a vacancy be subsequently filled, or some person who took part in the proceedings was subsequently unseated as the result of an election petition. There was a similar provision, section 23, in the Government of India Act, 1935, for the Federal Legislature, but it was omitted in the adaptations, because elections to the Constituent Assembly as defined by section 19 (3) (b) of the Indian Independence Act, 1947, were not at that time contemplated and since that Constituent Assembly was also to function as the Federal Legislature, no question of any member being subsequently unseated or being disqualified on an election petition was considered to be possible.

Section 19 (3) (b) of the Indian Independence Act, 1947, contains an exact definition of the Constituent Assembly of Pakistan and it is that Assembly, as altered by any action taken under the proviso to subsection (3) of section 19, alone which was competent to pass constitutional laws under subsection (1) of section 8 of that Act. And since the Privy Council (Abolition of Jurisdiction) Act, 1950, was passed not by the Constituent Assembly as "defined by section 19 (3) (b); but by that Assembly with six illegally added members, it was not a valid law, having been passed by an illegally constituted'

Legislature of the Dominion. The question then is whether that Act can at present be held to be valid on any other ground. If my view about the illegal constitution of the Assembly be correct, then it is unnecessary to discuss the question whether the subsequent assent of the Governor-General to the Act would make it valid, because the Governor-General, unless it be a case of necessity, has no authority to give assent to laws which are not passed by a properly constituted Legislature. The Act is one of those Acts which have been validated by the Governor-General by his Proclamation of Emergency of 16th April 1955. In the Special Reference mentioned above this Court has held that, in the circumstances existing at the time of that Proclamation, the Governor-General under the law of civil necessity had the authority temporarily and retrospectively to validate those Acts. The correctness of that opinion is accepted by learned counsel on both sides. If we were to hold that the Abolition of Jurisdiction Act has not been properly validated and is not law today, the consequences would be:

(i) that hundreds of persons wilt have lost their right of appeal to the Privy Council ;

(ii) that hundreds of judgments of this Court are void ;

(iii) that persons whose capital sentences were confirmed by the High Courts, but who were acquitted by this Court, shall have to be hanged ;

(iv) that hundreds of persons whose sentences of imprisonment were set aside by this Court will have to go back to jail ;

(v) that judgments relating to property and., other civil rights, by which this Court interferred with the judgments of the High Courts, are void, and that such property and rights have been illegally affected.

These results follow specifically from the invalidity of only one law. In the aforesaid Special Reference the result which followed from the invalidity of constitutional laws consequent on the judgment of this Court in Maulvi Tamizuddin Khan's case (1) was stated to be that 44 Constitutional Acts passed by the Constituent Assembly to which the assent of the Governor-General was ,not obtained had become invalid, and in consequence :

(1) all action taken after the 31st March 1948 in pursuance of orders made under section 9 of the Indian Independence Act, 1947, was invalid, including the insertion of section 92A to the Government of India Act, 1935, and hundreds of Acts made by the Governors of East Bengal, the Punjab and Sind, together with the orders made under those Acts ;

(2) the criminal law and procedure of Pakistan which had been applied to those parts of Baluchistan which had not been part of British India had never been a part of the law of that area ;

(3) the executive and Judicial Government of Karachi had no legal foundation ;

(4) all laws passed after 1950 by the. Constituent Assembly functioning as Federal Legislature were invalid ;

(5) all laws passed by the Provincial Legislatures since the last general elections were invalid ;

(6) all laws passed by the Provincial Legislature of East Bengal after March 14, 1953, were invalid ;

and

(7) other branches of civil, criminal and revenue laws were in large part invalid.

This result was stated more generally and forcefully by my brother Cornelius in Maulvi Tamizuddin Khan's case in support of the ab inconvenient argument. He observed:-

"The rule of stare desisis is altogether too small in its content to fit the case. Here, the greatest organs and agencies of the State have been consciously and unanimously holding a certain belief, and have been acting upon it in numerous respects affecting the most fundamental rights of the entire people. It is difficult to imagine a law which affects so large a proportion of the public as does a law designed to grant adult suffrage, and to determine the composition of Provincial Legislatures on that basis. The Delimitation of Constituencies (Adult Franchise) Act. 1951, was procured by the Federal Government, was passed by the Constituent Assembly, was put into operation by the combined labours of the Federal and Provincial Governments, and has borne fruit in the share of new Legislative Assemblies, which have been busy ever since passing new laws and in other ways, regulating the lives of the people. It is beyond conception to tabulate all the vested rights and interests which have developed in consequence of this law. And there are many other laws which have produced extensive effects, which cannot possibly be ascertained with exactness. These circumstances should, in my opinion, furnish an argument of almost insuperable character, in favour of upholding what hag been the practice hitherto in regard to assent to constitutional laws."

Now if the undoubted position be that justification for the validity of a large body of the law which has become inextricably wedged into the whole system has to be found, does it really matter whether such justification is founded on the ab inconvenient argument as my brother Cornelius seems, to have thought or on' the maxim id quod alias non est licitum necessitas licitum facit on which this Court based its opinion .in the Special Reference. In the desire to preserve the integrity of the legal system of the state, my brother Cornelius Maulvi Tamizuddin Khan's case (1) proceeded on the doctrine of ab inconvenient, while the majority of us held that that