SARMAD JALAL OSMANY, J.---All the aforementioned petitions raise common issues of law viz., the applicability of the amendments to the Legal Practitioners and Bar Councils Act, 1973 (hereinafter the "Act") per Ordinance No, 111 of 2004 notified on 3-11-2004 (hereinafter the "Ordinance"), to the elections of the Sindh Bar Council which were announced on 16-9-2004 per notification of the same date published in the Sindh Government Gazette, Part II. Consequently these petitions are being disposed of through this common order.
2. Briefly stated the case of the petitioner in C.P. No,D-1310 of 2004 is that he was enrolled by the Sindh Bar Council as an Advocate on 3-2-1997 and hence having completed seven years of uninterrupted practice was entitled to contest the election to the Sindh Bar Council (per section 5- A of the Act), which had been announced on 16-9-2004. Accordingly, he filed his proposal for such election on 25-10-2004. However, due to the amendment in section 5-A of the Act, the practice period of seven years was increased to 10 years consequent upon which the learned Advocate General, in his capacity as the Returning Officer has also issued a notification dated 5-11-2004 taking cognizance of the aforementioned amendment and inter alia increasing the practice period to 10 years. So also the seats of District Karachi East have been reduced from six to four.
Accordingly the petitioner has been adversely affected as he is now no more qualified to stand for the elections to the Sindh Bar Council as a member from District Karachi East the seats for which have also been reduced from 6 to 4. Hence, the petition praying for declarations that the Ordinance cannot operate retrospectively to the disadvantage of the petitioner especially when the election programmer has already been notified; that the petitioner has acquired a vested right to contest the elections of the Sindh Bar Council from District East, Karachi once having filed his proposal on 25-10-2004, which cannot be taken away retrospectively through the. Ordinance notified on 3-11-2004; that the notification dated 5-11-2004 issued by the Returning Officer is void ab initio and of no legal effect, and that the elections of the Sindh Bar Council be held for all the six seats for District Karachi East as per the unamended Act.
3. The case of the petitioners in C.P. No, 1324 of 2004 and 1343 of 2004 is that the Ordinance has reduced the number of seats for the Sindh Bar Council allocated for Larkana and Khairpur Districts from 2 to 1, which has adversely affected the petitioners who being practicing advocates in the District of Larkana and Khairpur respectively can now only elect one member each to the Sindh Bar Council instead of two as per the unamended Act. According to the petitioners such reduction brought about through the Ordinance on 4-11-2004 could not affect their vested rights to elect two members each under the unamended Act, as the election programme had already been announced on 16-9-2004 by the Returning Officer. Hence, the petitioners pray for declarations that the Ordinance would not be applicable to the election programme announced by the Returning Officer on 16-9-2004 whereby two seats have been reserved for the Districts of Larkana and Khairpur each and that the said officer be directed to conduct the elections to the Sindh Bar Council on the basis of the said programme.
4. Mr. Raja Qureshi appearing for the petitioner in C.P. No,1310 of 2004 has firstly submitted that as the term "election" has not been defined anywhere in the Act or the Rules framed thereunder this would then mean the entire election process as per the Programme announced on 16-9-2004. For this proposition he has relied upon: Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388) and Khushnood Ahmed v. President Cantt. Board (PLD 1984 Quetta 117). Hence, per learned Counsel the petitioners vested rights came into operation the day he filed his proposal viz. On 25-10-2004 which could not thereafter be adversely affected by the amendments to the Ordinance being later in time. For this proposition he has relied upon Mardan Industries Ltd., v. Government of Pakistan (PLD 1965 Pesh. 46), Abul A'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673) and Nabi Ahmed v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599).
5. Learned counsel's next contention was that under the Constitution of Pakistan the President only has power to promulgate an Ordinance when the National Assembly is not in session whose life in any event is four months. Hence, there was no compulsion to pass the Ordinance in a hurry when admittedly the Bill regarding the proposed amendments was already pending with the Senate.
This, per learned counsel, gives the impression that the Ordinance was promulgated for ulterior motives and not in the best interest of the Lawyers Community which would then oblige this Court to consider the vires of the Ordinance. For this proposition he has relied upon Mian Iftikhar-ud-Din v. Muhammad Sarfraz (PLD 1961 (W.P.) Lah. 842), Zafar Ali v. Chief Settlement Commissioner (PLD 1966 Lah 900), Asif Ahmed Ali v. Muhammad Khan Junejo (PLD 1986 Lah. 310 at page 322) and Sabir Shah v. Shad Muhammad Khan, (PLD 1995 SC 66 at page 207).
6. Finally, learned counsel has submitted that the Elections in the N.-W.F.P. Have already taken place in June, 2004 under the unamended Act and hence it would be quite inequitable, in fact discriminatory for the application of the same law viz. The Act in the unamended form to NWFP and after the amendments to the rest of the Country particularly when the result would operate against the vested rights of the petitioner.
7. Mr. Abdul Hafeez Lakho, appearing for the petitioner in C.P. No,1324 of 2004 has firstly submitted that the arbitrary reduction of the seats of Larkana District from 2 to 1 vide the Ordinance has adversely affected the vested rights of the petitioners who being practicing advocates of the District can now only return one member to the Sindh Bar Council instead of two as previously. Per learned counsel these vested rights accrued to the voters of Larkana District i,e, the petitioners and other advocates enrolled in such district as soon as the election programme was announced on 16-9-2004. He has relied upon the cases cited by Mr. Raja Qureshi on the subject of vested rights.
Furthermore, per learned counsel, the two seats for Sukkur District have been retained by the Ordinance although there is a difference of only 12 (twelve) in the number of advocates enrolled in Larkana and Sukkur Districts i,e, 456 as opposed to 468 respectively. Hence, the reduction of the two seats for Larkana to one would then be discriminatory since the number of seats for each District per the unamended Act were based on the formula in the unamended section 5(2)(b) &
(c) of the Act which was with reference to the number of enrolled advocates. Finally, learned counsel has also questioned the hurried manner in which the Ordinance was promulgated when the matter was pending with the Government since the year 2002 and with the Senate since August, 2004. Per learned counsel a debate on the proposed amendments in Parliament would have endorsed the views of all the concerned parties including the Lawyers Community. Where after perhaps a consensus could have been evolved. In this connection, he has relied upon Sabir Shah v. Shad Muhammad Khan (supra) and Federation of Pakistan v. Shaukat Ali Mian (PLD 1999 SC 1026).
8. Mr. Shabbir Shah, appearing for the petitioner in C.P. No,1343 of 2004 wherein the amendments to the Ordinance have been impugned vis-a-vis the reduction of the seats of Khairpur District from two to one has also submitted that this would operate to the detriment of the advocates enrolled in the said District and against their vested rights acquired proper to the Ordinance. He has supported the arguments of Mr.Abdul Hafeez Lakho.
9. Mr. Abrar Hassan, appearing for the Sindh Bar Council in C.P. No,1310 of 2004 has supported the arguments of Mr. Raja Qureshi, and Mr. Abdul Hafeez Lakho. He has further submitted that according to the scheme of the Act the members of the various Provincial Bar Councils are to elect the members of the Pakistan Bar Council. Since the elections to the N.-W.F.P. Bar Council have already taken place hence they would have more representation on the Pakistan Bar Council if the elections to the Sindh and Punjab Bar Councils were held according to the amendments brought about in the Act. According to learned Counsel this would be evident from the fact that after the amendments only fixed number of candidates can be elected to the various Bar Councils viz. Punjab 75, Sindh 32, and I3alochistan (sic) whereas N.-W.F.P. Already has 32 members in its Bar Council. Learned counsel has further submitted that vested rights could not be taken away in a statute such as the Act which concerns the advocates right of representation to the Provincial Bar Councils, and ultimately to the Pakistan Bar Council, which is a fundamental right guaranteed by the Constitution.
10. Mr. Rasheed A. Rizvi, Vice-Chairman of the Pakistan Bar Council has submitted that the council as long as in 1992 had decided in a joint meeting held with the Provincial Bar Councils that the number of seats had to be decreased in each Province in view of the financial burden imposed upon the Pakistan Bar Council due to the increasing number of advocates in the country. In this connection he has referred to the minutes of such meeting dated 31-5-2002 which were conveyed to the Federal Law Secretary. Consequently Mr. Rasheed. A. Rizvi has supported the amendments brought about in the Act through the Ordinance. However, according to him this should have been done a long time ago and perhaps the timing of the Ordinance was inappropriate. Nevertheless, according to him vested rights can always be curtailed through legislation for which he has relied upon Ghulam Nabi v. Province of Sindh (PLD 1999 Karachi 372).
11. Mr. Nadeem Azhar Siddiqui, learned D.A.-G. Has firstly submitted that per section 7 of the Act the elections are to be held on or before 30th November of the year in which the term of the Provincial Bar Council expires which is for five years and begins in January of the year following such elections. The last elections in Sindh were held in November 1999 and hence the term ended in November, 2004 whereas in N.-W.F.P. The elections were held earlier and the term ended in 2003.
Consequently per the learned DAG as such elections in N.-W.F.P. Were held in accordance with the unamended Act no fault can be found with the same. Thereafter, the Act was amended and consequently all future elections for the Provincial Bar Council are to be held in accordance with such amendments. As regards unfair discrimination, per learned DAG reasonable classification can be made by the State which would then not be in violation of Article 25 of the Constitution which guarantees equality before the law, but no equal application of the law. For this proposition he has cited Inam-ur-Rahman v. Federation of Pakistan (1992 SCMR 563) and Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341).
12. As regards the issue of vested rights the learned DAG has submitted that in elections matters, this would accrue to the candidate upon acceptance of his proposal, which would correspond to the scrutiny of the same and the display of list of the candidates who had been cleared to contest the elections by the Returning Officer. In this connection he has referred to rule 5 of the Bar Council Rules and also Muhammad Yousuf v. Azad Government (PLD 2001 AJK 60). In any event per the learned D.-A.G., as per settled law vested rights can always be adversely affected/taken away through legislation for which proposition he has cited M.Y. Electronic Industries Ltd., v. Government of Pakistan (1998 SCMR 1404), Bank of America Employees' Union Federation of Pakistan (2003 PLC 143), Shadi Khan v. The State (2002 SCMR 272), Molasses Trading & Export (Pvt.) Ltd. v. Federation of Pakistan (1993 SCMR 1905). Hence even if such vested rights accrued to the petitioner when he filed his proposal by virtue of the amendments to the Act brought about by the Ordinance, he stood disqualified as the practice period had been increased to 10 years.
13. For all the foregoing reasons, the learned D.A.-G. Has prayed that the petitions be dismissed.
14. We have heard all the learned counsel, the learned D.A.-G., the learned Advocate- General/Returning Officer and Mr. Rasheed A. Rizvi, Vice-President, Pakistan Bar Council. Our conclusions are as follows.
15. It would be seen that insofar as vested rights are concerned, the Hon'ble Supreme Court in the Molasses Trading case (supra) has unequivocal held that through legislation, vested rights created in favour of a citizen can be set at naught meaning thereby that such legislation would operate retrospectively. However, at the same time, the Hon'ble Supreme Court also opined that said legislation would not affect past and closed transactions. In the instant case the Hon'ble Supreme Court was examining the vires of section 31-A of the Customs Act which is reproduced herein below for ease of reference:-- "Notwithstanding anything contained in any other law for the time being in force or any decision of any Court, for the purposes of sections 34 and 31, the rate of duty applicable to any goods shall include. The amount that may have become payable in consequence of withdrawal of exemption from duty whether the withdrawal is) before or after the conclusion of a contract or agreement for the sale of such goods or opening of a letter of credit thereof." It was held that after the insertion of section 31-A of the Customs Act, the judgment of the apex Court in the case of Al-Samrez Enterprises (1986 SCMR 1917) which had validated vested rights acquired by the appellants by virtue of opening of letters of credit/conclusion of sale contracts, stood neutralized.. The Honourable Supreme Court opined that the consequences which flowed from the act of withdrawal or modification of an exemption notification under section 31-A would take effect with reference to the date of its issue irrespective of the fact that the contract for the import of goods and letter of credit had come into existence prior to such date. However, at the same time, the Honourable Supreme Court held that section 31-A did not have the effect of destroying or reopening past and closed transactions and consequently where the bills of entry were presented prior to the insertion of section 31-A in the Customs Act then the rate of duty payable would be that which was applicable on the date of the bill of entry. This would be for the reason that the liability to pay customs duty by the citizen crystallized on this date under section 18 of the Act and once it has been paid the liability stood discharged. In other words the rights and liabilities of the importer attained finality on said crucial date. Inevitably, therefore, a vested right has been created and the transaction is closed by the quantification of the tax if any or by the discharge of liability on that date.
16. The judgment of the Honourable Supreme Court in the Molasses Case was followed by the apex Court in the case of M.Y. Electronics (supra). It was further held that the doctrine of promissory estoppel (vested rights) which was founded in equity arises when a person acting on the representation by the Government or a person competent to represent on behalf of the Government changes his position to his detriment, takes a decisive step, enters into a binding contract or incurs a liability then in such cases the Government would not be allowed to withdraw from its promise for representation. However, a general promise without any time limitation cannot bind the Government for all times to come. The enforcement of the doctrine of promissory estoppel against the Government or a. Government functionary competent to represent on behalf of the Government is, however, subject to the following limitations:-
(i) the doctrine of promissory estoppel cannot be invoked against the Legislature or the Laws framed by it because the Legislature cannot make a representation;
(ii) promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out;
(iii) no agency or authority can be held bound by a promise or representation not lawfully extended or given;
(iv) the doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and
(v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.
17. The Honourable Supreme Court further held in the instant case that in the absence of any period having been specified during which an exemption notification was to remain operative the benefits thereunder could only be availed of till such time such notification was withdrawn/superseded.
Hence, the doctrine of promissory estoppel could not be pleaded by the assessee after the withdrawal of the exemption notification. However, the vested rights of the assessee acquired during the period when such notification was in the field viz. As to exemption from payment of sales tax etc., were upheld by the Honourable Supreme Court.
18. Applying the afore going principles to the facts of the present matters, it would be seen that the election programme was notified on 16-9-2004 by the Returning Officer for elections to the Sindh Bar Council and accordingly the petitioner in C.P. No,1310 of 2004 filed his proposal with the Council on 25-10-2004 which was the last day for the receipt of the proposal as per the programme. It would be noted that on this day he was qualified to be a candidate for the elections as he had completed seven years of practice per section 5-A of the unamended Act. The question to be decided now is whether the petitioner could claim vested rights to contest the elections on the day he filed his proposal viz. 25-10-2004. In this context it would be beneficial to refer to the reasoning of the Hon'ble Supreme Court in the Molasses case (supra) as to when the rights and obligations of the parties inter se viz. The Government and the citizen crystallized vis-a-vis creation of the right and discharge of the obligation. In the instant case it was held that the obligation to pay duty in terms of section 30 of the Customs Act crystallized on the day the bill of entry was filed and correspondingly when such duty was paid the liability was discharged. It was further held by the Hon'ble Supreme Court, quote; "The mere fact that any proceedings remained pending for assessm ent of the tax by a statutory functionary for the purpose of recovery of the dues, will not prevent the law from operating and producing the result of closing the transaction. This is on the simple principle that every functionary is bound by the provisions of law and has to pass a lawful order which alone is protected. Besides on this date the liability to pay tax and the exemption from or mere calculation in terms of section 30 read with sections 18 and 19 of the Act, because the rate and value of the goods become fixed with reference to this date. Indeed no adjudicative process is involved in such a matter. Viewed in this perspective, if effect is given to the provisions of section 31-A so as to undo the discharge of the liability which had already taken effect, it will amount to re- opening a past and closed transaction." Seen in this context, in our opinion upon a perusal of the election programme notified by the learned Returning Officer on 16-9-2004, insofar as the petitioner is concerned in C.P.No,D-1310 of 2004 his vested rights i,e, the right to contest the elections would accrue on the date he filed his proposal for the same viz. 25-10-2004. The other crucial dates notified in the programme vis-a-vis the petitioner, in our opinion, are ministerial in nature as these concern the display of the contesting candidates list on 30-10-2004, scrutiny of the proposals on 4-11-2004, display of the list regarding those candidates who had cleared the scrutiny 5-11-2004 withdrawal of proposals 8-11-2004, display of final .List of unopposed candidates, if any and contesting candidates, 11-11-2004, polling day and counting of votes by Polling Officers 27-11- 2004, counting of votes by Returning Officer 8-12-2004 and declaration of final result 20-12-2004.
Hence in our opinion, the entire election process is based upon proposals/nominations being filed by the .Contesting candidates and every other action to be taken regarding the process is dependent upon the same being filed. This is for the simple reasons that if there are no candidates there cannot be any elections. Consequently, in our opinion, the right to contest the elections crystallized in favour of the petitioner on the day he filed his proposal viz. 25-10-2004 on which date he stood qualified to do so. Hence this would then be a past and closed transaction between the petitioner and the State insofar as this right is concerned which cannot be destroyed retrospectively through the Ordinance. 'Similarly, the petitioners' vested right to seek election from six seats from Karachi East also accrued to him on 24-9-2004 which cannot be curtailed subsequently by the Ordinance by reducing the seats to four.
19. So also in our opinion, for the foregoing reasons, the vested rights of the petitioners in C.P. No,D- 1324 of 2004 and D-1343 of 2004 i,e, to have two members each returned to the Sindh Bar Council from the Districts of Larkana and Khairpur respectively, also accrued to them on this date viz. 24-9- 2004 when the election programme under the unamended Act was announced. Hence, the elections to the Sindh Bar Council from these two Districts would remain unaffected by the amending Ordinance as well.
20. Regarding the issue of discrimination vis-a-vis elections already having been concluded in N.- W.F.P. In June 2004 under the unamended Act, we would agree with the learned counsel for the petitioners that this would be the case insofar as elections to the Provincial Bar Councils in the other Provinces of the country are concerned. Indeed it would be an anomaly for elections to be held in N.-W.F.P. Under the unamended Act and for the remaining Provinces under the amended Act firstly as to the number of seats since these have been reduced in the Punjab from 111 to 75, in Sindh from 42 to 32 whereas there is no reduction in N.-W.F.P. Where the number of seats are maintained at 28 and in Balochistan they have been increased from 5 to 8. Secondly, it would be seen that the practice period under the unamended Act under which the elections to the N.-W.F.P.
Bar Council have already been held was seven years whereas under the amended Act it has been increased to 10 years. Thus in our view, if the elections to the Sindh Bar Council are allowed to be held under the amended Act this would certainly be volative of the petitioners fundamental right to the equal protection of the law as enjoined in Article 25 of the Constitution. Additionally, it would be seen that as the number of seats in the Sindh Bar Council have been reduced from 42 to 32 the Council would have lesser representation in the Pakistan Bar Council as the latter is to be elected by members of all the. Bar Councils in the country. Consequently, as now 28 members have already been elected to the N.-W.F.P. Bar Council they would have a pro-rata higher representation in the Pakistan Bar Council compared to Sindh Bar Council. Secondly, it would be seen that the seats of Larkana and Khairpur Districts have been reduced from 2 to 1 each in the amended Act while that of Sukkur District have been maintained at 2. This would again in our opinion be discriminatory as there is hardly any difference between the number of advocates enrolled in these three Districts. Hence there appears to be no good reason for reducing the number of seats in Larkana and Khairpur Districts to one each while retaining two seats in Sukkur District.
21. For all the foregoing reasons we had vide a short order passed earlier allowed the aforementioned petitions to the extent that the elections to the. Sindh Bar Council would remain un-affected by the amendments brought about in the Legal Practitioners and Bar Council Act, 1973 through the Ordinance. As regards the vires of the same, we would not like to address this issue at present since it was pressed rather halfheartedly by learned counsel for the petitioners. We would, therefore, leave this issue to be decided appropriately if it is addressed in any other matter.