Raja Saeed Akram Khan, CJ. The proposed judgment contains the detailed reasons for our short order dated 16.04.2022, which reads as under: "For the reasons to be recorded later on, we are intended to dispose of this appeal in the following manner:-
(a) That Article 16(3) of the Azad Jammu and Kashmir Interim Constitution, 1974 provides that:- "if the Assembly is in session at the time when the Prime Minister resigns his office, the Assembly shall forthwith proceed to elect a Prime Minister, and if the Assembly is not in session the President shall for that purpose summon it to meet within fourteen days of the resignation"
The Article (supra) has been divided into two limbs to deal with two eventualities, i.e. (i) if the Assembly is in session at the time when the Prime Minister resigns his office, the Assembly shall forthwith proceed to elect a Prime Minister; and (ii) if the Assembly is not in session, the Worthy President shall for that purpose summon it to meet within fourteen days of the resignation, We are of the unanimous view that in the light of peculiar facts and circumstances of this case, after resignation of the Prime Minister of Azad Jammu and Kashmir on 14.04.2022, the resolution for vote of no confidence had automatically come to an end. As at the time of resignation by the Prime Minister, the Assembly was not in session, hence, as per the Constitution, the President of Azad Jammu and Kashmir has to summon the meeting of the Assembly within fourteen days of the resignation. In this state of affairs, there was no occasion for the Speaker of the Assembly to continue the proceedings of the Assembly for the purpose of election to the office of Prime Minister, The learned High Court was therefore justified in issuance of impugned restraint order.
(b) It appears that the learned High Court through the impugned order has directed the respondents to stay their hands from taking 'any proceedings' regarding election to the office of the Prime Minister of Azad Jammu and Kashmir, whereas, in our opinion such observations amount to make the constitutional provisions redundant. We are conscious of the fact that the office of the Prime Minister cannot be kept vacant for an indefinite period and presently the office is working as a stop gap arrangement, furthermore, both the parties are in agreement that the election to the office of the Prime Minister should be conducted in accordance with the constitutional provisions, hence, we deem it appropriate to direct the Secretary Law, Justice, Parliamentary Affairs and Human Rights as well as the Principal Secretary to the Prime Minister, to immediately take measures for enabling the Worthy President to summon the session of the Assembly for the purpose of election to the office of Prime Minister.
(c) In view of the facts of instant case, the session of the Assembly summoned on 15.04.2022, shall be deemed prorogued. Resultantly, the writ petition filed by the respondents has also become infructuous.
The office is directed to immediately send the copy of this order to the Secretary Law, Justice, Parliamentary Affairs & Human Rights, Principal Secretary to the. Prime Minister and Secretary to the Worthy President, for compliance,
2. The facts, in brief, are that against the Prime Minister of Azad Jammu and Kashmir, Sardar Abdul Qayyum Khan Niazi, a resolution for a vote of no-confidence under Article 18 'of the Azad Jammu and Kashmir Interim Constitution, 1974 (Constitution) was moved twenty-five Members, of the Legislative Assembly of Azad Jammu and Kashmir (Assembly), on 12.04.2022. On the same day, the Speaker summoned the Assembly to meet on 15.04.2022, for voting on the said resolution, however, before meeting of the Assembly, the Prime Minister submitted his resignation to the Worthy President on 14.04.2022. The resignation was accepted and accordingly notified. It is alleged that the proceedings of the vote of no confidence came to an end on resignation of the Prime Minister, hence, under sub-Article (3) of Article 16 of the Constitution, the President has to summon the Assembly to meet, within fourteen days of the resignation, for the purpose of election to the office of the Prime Minister but despite this the Speaker of the Assembly, with mala fide intention, has issued an agenda of meeting of the Assembly on 15.04.2022 for election to the office of the Prime Minister in the session which was summoned for the purpose of debate on the resolution of vote of no confidence. In the given circumstances, the private respondents filed a writ petition before the High Court with the following prayer: "It is, therefore, most, respectfully submitted that Notification dated 12.04.2022 (Annexure "PB") along with the motion of No Confidence dated 12.04.2022 submitted by Respondents No. 7 to 9 (Annexure "PD") and the agenda for the proceedings of the Legislative Assembly dated 15.04.2022 (Annexure "PE") may kindly be declared without lawful authority having no legal effect. The Respondents may kindly fee restrained from initiating any proceedings of the Azad Jammu and Kashmir Legislative Assembly on 15.04.2022 by violating Article 16(3) of Azad Jammu and Kashmir Interim Constitution, 1974 and Rules of Procedure of Legislative Assembly of Azad Jammu and Kashmir. The Respondents may kindly be restrained from initiating any proceedings for holding the Election to the office of Prime Minister of Azad Jammu -and Kashmir on 15.04.2022 by violating Article 16(3) of Azad Jammu and Kashmir Interim Constitution, 1974 read with the Rules of Procedures of Azad Jammu and Kashmir Legislative Assembly. The Respondents may kindly fee directed to hold the proceedings of the Election to the office of Prime Minister strictly in accordance with provision of Article 16(3) of the Azad Jammu and Kashmir Interim Constitution. Any other relief, not claimed, and the same is admissible in accordance with law may also be granted in the interest of the justice."
Along with the writ petition, an application for restraining the respondents from holding the elections to the office of Prime Minister on 15.04.2022, was also filed. The learned High Court through the impugned order dated 15.04.2022 directed the respondents, therein, to stay away from conducting any proceedings regarding elections to the office of the Prime Minister of Azad Jammu and Kashmir. However, the order was passed subject to objections from other side.
3. The petition for leave to appeal against the impugned order of the High Court was placed before the Senior Judge of the Court at 4:30 p.m., when the Court time was over, however, keeping in view the importance of matter the case was fixed before the full Court on Saturday, the 16th day of April at 10:00 a.m.
4. With the agreement of the learned counsel for the parties, the petition for leave to appeal was converted into appeal while dispensing with the requirement of filing of concise statements and depositing of security fee and the appeal was fixed for arguments on the same day.
5. The learned counsel appearing on behalf of the appellants argued that the impugned order was passed by the learned High Court in sheer violation of Article 34 of the Constitution which provides that the proceedings of the Assembly shall not be questioned in any Court. The impugned order amounts to interference in the proceedings of the Assembly, hence, the same is not sustainable. It was further argued that the session of the Assembly was summoned under Article 27(4) of the Constitution and under the referred provision it is only the Speaker, who can prorogue it, hence, the learned High Court was not justified at all to pass the impugned order. It was further argued that for the purpose of Article 16(3) of the Constitution, the Assembly was in session since 12.04.2022, when the same was summoned to meet. Even otherwise, the Constitution imposes no bar on the Speaker to prorogue the present session and re-summon it through President's order for the election to the office of the Prime Minister. It was further argued that the writ petition filed by the respondents was pre-mature and based upon apprehensions, hence, the same was liable to be dismissed on this sole ground.
6. The learned counsel representing the caveator-respondents submitted that the impugned order passed by the High Court was strictly in accordance with law. It was maintained by them that after tendering the resignation by the Prime Minister, the proceedings in relation to vote of no confidence had come to an end, hence, under Article 16(3) of the Constitution, the Worthy President had to summon the Assembly to meet for the purpose of election of the Prime Minister but the Speaker Assembly, with mala fide intention was going to hold the election to the office of Prime Minister in the session of Assembly which was summoned for debate on the resolution of vote of no confidence. Thus, the learned High Court was fully justified to restrain the concerned from violating the Constitution. No doubt, the validity of proceedings of Assembly cannot be challenged before any Court, however, the constitutional Courts are fully competent to interfere with when there is a violation of clear constitutional provision. In these circumstances, the impugned order passed by the learned High Court is well-reasoned and does not call for any interference by this Court.
7. We have heard the learned counsel for the parties and gone through the record. According to the record, a resolution for a vote of no confidence was moved on 12.04.2022 against the Prime Minister of Azad Jammu and Kashmir under Article 18 of the Constitution, in consequence whereof, the Speaker summoned the Assembly to meet on 15.04.2022. It appears that before the meeting of the Assembly, the Prime Minister resigned from the office on 14.04.2022. The resignation was accepted and accordingly notified on the same day, meaning thereby, that the session of the Assembly summoned for the purpose of debate on the resolution of vote of no confidence, came to an end but despite this the agenda issued by the Assembly on 14.04.2022 shows that the meeting was summoned for voting in respect of election to the office of the Prime Minister. Article 16(3) of the Constitution provides that: "(3) If the Assembly is in session at the time when the Prime Minister resigns his office, the Assembly shall forthwith proceed to elect a Prime Minister, and if the Assembly is not in session the President shall for that purpose summon it to meet within fourteen days of the resignation."
The sub-Article (supra) deals with two eventualities, i.e. (i) if the Assembly is in session at the time when the Prime Minister resigns his office, it shall forthwith proceed to elect a Prime Minister; and
(ii) if the Assembly is not in session, the Worthy President shall for that purpose summon the Assembly to meet within fourteen days of the resignation. The facts mentioned, hereinabove, clearly depict that after resignation of the Prime Minister on 14.04.2022, the resolution for vote of no confidence automatically came to an end, hence, the eventuality of commencement of the session also came to an end even before its commencement meaning thereby the Assembly was no more in session. In the given circumstances, the second eventuality mentioned in Article 16(3) of the Constitution stood attracted according to which the Worthy President, was under the obligation to summon the Assembly to meet within fourteen days for the purpose of election to the office of Prime Minister. In this state of affairs, the Speaker was not justified at all to issue the impugned agenda of meeting.
8. It has also been argued by the learned counsel for the appellants that for the purpose of Article 16(3) of the Constitution, the Assembly was in session from the day when it was summoned i.e., 12.04.2022, We are afraid that such an interpretation has been made by the learned counsel for the appellants themselves against the spirit of the relevant provisions of law. It may be stated here that under Article 29(3) of the Constitution all the proceedings of the Assembly shall be conducted in accordance with Rules of Procedure made by the Assembly and approved by the President. The Rules for conducting the proceedings of the Assembly framed in pursuance of the constitutional provisions are called the Rules of Procedure of Azad Jammu and Kashmir Legislative Assembly, 1975, (Rules, 1975). In the said Rules, the word "session" has not been defined, however in Rule 2, sub- Rule (3) , the word "sitting " has been defined as follows: Likewise, in pari materia, Rules of Procedure and Conduct of Business in the National Assembly, 2007 (as enforced in Pakistan) the word "session" has been defined as under: "Session" means the period commencing on the day of the first sitting of the. Assembly after having been summoned and ending on the day the Assembly is prorogued or dissolved."
Keeping in view the aforesaid definition of the word "sitting' and "session" we would like to refer here Rule 16 of Rules, 1975, which deals with the procedure for election to the office of the Prime Minister, when the same has become vacant:- It is evident that if the office of the Prime Minister becomes vacant during the session of the Assembly, the Assembly shall forthwith proceed to elect the Prime Minister in accordance with Rule 15 and if the office of Prime Minister falls vacant at the time when the Assembly is not in session, then the election to the office of the Prime Minister shall be conducted on the day fixed by the Worthy President under the provisions of Article 13 of the Constitution. Hence, we have no hesitation to hold that when the Prime Minister resigned from his office, the Assembly was not in session as the session was to commence on the day of the first sitting of the Assembly i.e., 15.04.2022, therefore, election to the office of Prime Minister in the session summoned for another purpose would have been against the constitutional provisions. In this regard, the observations recorded by the learned High Court are well-reasoned, calling for no interference by this Court.
9. As stated hereinabove, in the instant case, the meeting of the Assembly was summoned for voting on the resolution of the vote of no confidence and not for the election to the office of Prime Minister. Under Rule 26 of Rules, 1975, the Secretary, Assembly 'is bound to prepare the order of the day and make a copy thereof available for the use of every member. It has been laid down in sub- rule 2('c) that no agenda item for which notice is required, shall be entered in the list of business before a day coming after the last day of the period fixed for such mandatory notice. Under sub- rule 2(y) no business which has not been entered into list of business of a sitting shall be conducted in a sitting, except that of ceremonial or conventional nature with the permission of the Speaker, From this angle too, the act of Speaker to issue the impugned agenda was against the prevalent Rules, 1975.
10. Although, we have reached the conclusion that the session of the Assembly had not yet commenced and the sole object for which it was summoned had come to an end after resignation of the Prime Minister a day earlier even before commencement of session, but we would like to resolve the proposition as to whether the proceedings of Assembly were amenable to the judicial scrutiny under Article 34 of the Constitution. In this regard, we may embark upon to put with unison that if the impugned act or order performed during the `proceedings' of the Assembly is tainted with mere any procedural irregularity then the judicial review of such act or order is not permitted, however, if the act or order which goes against the basic theme of the Constitution or performed in a manner to defeat any provision of the Constitution or falls into illegality, then the judicial scrutiny of such act or order is permissible under the writ jurisdiction by the High Court. To substantiate our view, reliance may be made on the pronouncement of the Calcutta High Court in the case reported as Syed Abdul Mansur Habibullah vs The Speaker, West Bengal [AIR 1966 Cal 363], wherein an extract from the opinion of the Supreme Court of India made in Reference No. 1 of 1964, (unreported), has been quoted, for brevity we reproduce here a small portion of same which reads as under: ".....Similarly, Article 212(1) makes a provision which is relevant, it lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Article 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any Court in respect of the exercise by him of those powers. Article 212(1) seems to make it possible for a citizen to call in question in the appropriate Court of law the validity of any proceedings inside the Legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality, if the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a Court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular,'
6. I need not quote more from the above opinion. I have to hold, in respectful agreement with the majority opinion delivered by the Supreme Court, that it can be established that the proceedings inside the Legislative chamber have become illegal or unconstitutional, by reason of the happenings stated in the petition, this Court is competent to issue the mandate as prayed for."
The scope of judicial review in relation to proceedings in the Assembly has also been discussed by the apex Court of Pakistan in the case reported as Muhammad Azhar Siddique v. Federation of Pakistan [PLD 2012 SC 774] as follows: "33. Clause (1) of Article 69 of the Constitution provides that the validity of any proceedings in the Parliament shall not be called in question on the ground of any irregularity of procedure whereas clause (2) ibid provides that no officer or Member of the Parliament in whom powers are vested by or under the Constitution, for regulating procedure or the conduct of business, or for maintaining order in the Parliament shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers. The issue as to what are, and what are not, the internal proceedings of the Parliament, which are beyond the pale of jurisdiction of the Courts has been dilated upon by the superior Courts in the past on many occasions. In the case of Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), Hamoodur Rehman, CJ., observed that whatever was not "related to any 'formal transaction of business in the House cannot be said to be a part of its internal proceedings". In the case of Muhammad Naeem Akhtar v. Speaker, Sindh Provincial Assembly (1992 CLC 2043) the High Court held that the action of Speaker in accepting resignations in question would neither fall within meaning of term "any proceedings in the Provincial Assembly" used in Article 69 read with Article 127 of the Constitution, nor such action could be described as an exercise of power by the Speaker of regulating the procedure or the conduct of business in the Assembly; thus, a constitutional petition against the action of Speaker in accepting resignations of Members of Assembly was maintainable. In the case of Shams-ud-Din v. Speaker, Balochistan Provincial Assembly (1994 MLD 2500), it was held by the High Court that the internal proceedings which were carried out by the Assembly, during its session, were not amenable to the jurisdiction of Court, However, all other administrative actions by the Speaker including recruitment of employees would not enjoy immunity from judicial review, particularly when such action of Speaker, prima facie, was in violation of existing rules or the discretion vested in him to take certain decisions in order to smoothly run the functions of Provincial Assembly Secretariat had not been exercised judiciously.
Therefore, the High Court under Article 199 of the Constitution was competent to examine the validity or otherwise of such action. The High Court of Balochistan, in the case of Mining Industries of Pakistan (Pvt) Ltd, v. Deputy Speaker, Balochistan Provincial Assembly (PLD 2006 Quetta 36) held that the question relating to right of a person to be a Member of House or to continue to sit therein was not a question pertaining to the internal proceedings of the House, but a question affecting the constitution of the House, which was not precluded from inquiry by the Courts under Article 199 of the Constitution. Thus, Court has recently reaffirmed the relevant principles, in a judgment reported as Munir Hussain Bhatti v. Federation, of Pakistan (PLD 2011 Supreme Court 407). While dilating upon the power of judicial review of the Court vis-a-vis Article 69 of the Constitution, this Court noted that although the committee constituted under Article 175A of the Constitution bore the title of "Parliamentary Committee" its nature and functions were such that its proceedings were not to be considered the internal proceedings of Parliament. Its functions were of an administrative nature and related to judicial appointments rather than parliamentary business.
Therefore, its proceedings were held to be reviewable by the superior Courts and there was no immunity from judicial scrutiny under Article 69 of the Constitution. The same principle applies to the Speaker's ruling under. Article 63(2) of the Constitution. The Speaker performs the administrative task of determining whether a question of disqualification has arisen and, if in doing so she goes beyond her constitutional remit, misapplies the applicable law or misuses her discretion, then Mier decision will be reviewable. Article 69 will not provide her ruling any immunity from judicial review.
34. Similar approach is adopted and prevalent in the neighbouring country despite the bar of jurisdiction of Courts provided in Para 7 of the Tenth Schedule of the Indian Constitution. The superior Courts of that jurisdiction have adjudicated upon the validity of the rulings of the Speaker and on several occasions have set aside the rulings passed by the Speaker. Reference may be made to the judgments reported as Ravi S. Naik v. Union of India (AIR 1994 SC 1558), Mayawati v.
Markandeya Chand [(1998) 7 SCC 517]. Recent examples of cases where the Speakers rulings on various issues have been held, to be reviewable include Jagjit Singh v. State of Haryana (AIR 2007 SC 590), Rajendra Singh Rana u. Swami Prasad Maurya (AIR 2007 SC 1305) and D.Sudhakar v.
D.N. Jeevanraju [Civil Appeals Nos.4517-452.1 of 2011] decided on 25 January, 2012."
In view of the peculiar facts and circumstances of this case, it is very much clear that the Speaker of the Assembly had issued the agenda of the meeting of the Assembly for election to the office of the Prime Minister in the session which was summoned for voting on the motion of the vote of no confidence and the meeting of the Assembly was no more required to be held due to resignation of the Prime Minister a day earlier, even before the commencement of the session. The order of the Speaker was not in consonance with and permitted by Article 16(3) of the Constitution, hence, the provisions of Article 44 of the Constitution stood attracted and the writ petition was competent.
11. It may also be stated here that under Article 44 of the Constitution, writ petition is competent where any person performing the functions in connections with the affairs of Azad Jammu and Kashmir or local authority has done or is doing which is not permitted by law to do, or is not doing which is required by law to be done. The word 'law' used in the constitutional provisions also includes the Constitution itself. It has been held by this Court in a number of cases that the writ petition is competent where there is any violation of law. We are fortified in our view from the principle of law laid down in the case reported as Residents of Village Sathra vs. Azad Govt. and others [2018 SCR 592], wherein, it has been held that: "Even otherwise, as by not constituting the separate ward of Mozia Sathra, no violation of Government notification dated 21.04.2017, has been committed, therefore,' the learned High Court has rightly dismissed the writ petition in limine as under law writ petition is only competent where there is any violation of law or any statutory provision or celebrated principle of law has been made, whereas, no such eventuality is available in the instant case."
Further reliance may be placed on the case reported as AJ&K Govt and 4 others v. Dr. Muhammad Amin [2014 SCR 258], wherein it has been held that: "Writ petition is only competent where there is any violation of law or any statutory provision or celebrated principle of law and justice."
From the above, in our considered opinion, the argument of the learned counsel for the appellants that under Article 34 of the Constitution the proceedings of the Assembly cannot be interfered with; has no substance because the provisions of the said Article are not attracted in the instant case.
12. Even otherwise, during the course of arguments both the learned counsel for the parties agreed that they are only concerned about the election to the office of the Prime Minister in accordance with the Constitution. That's why keeping in view the facts of this case, we have not only declared the writ petition infructuous but also passed the directions through our short order, reproduced hereinabove. As the office of the Prime Minister could have not been kept vacant for an indefinite period, that's why we have also directed the Secretary Law, Justice, Parliamentary Affairs and Human Rights Department as well as the Principal Secretary to the Prime Minister and Secretary to the Worthy President to immediately take measures for enabling the Worthy President to summon the session of the Assembly for the purpose of election to the office of Prime Minister.