' KHALIL-UR-REHMAN KHAN, J.--Mr. Wasi Zafar, Member Provincial Assembly, who is also Whip of the opposition Parliamentary Party in the Punjab Assembly has filed this Constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan seeking declaration to the effect that
(a) the summoning of the Punjab Assembly is illegal and violative of Article 109 of the Constitution;
(b) the presentation of Annual Budget and the Supplementary Budget at the same time and in one and the same Session is illegal and (c) the inability and the failure of the Speaker to grant four days for general discussion of Annual Budget Statement and two days for supplementary budget is violative of the Constitution. It is further prayed that as the presentation of the budget is violative of Constitution, the holding of the Session of the Punjab Assembly may be stayed till the decision of the petition.
2. Raja Mahmood Akhtar, learned counsel for the petitioner argued that the session of the Provincial Assembly is being held unauthorizedly and illeglly as the Governor after summoning the Assembly has no authority to change the time of the meeting of the Assembly already fixed in the notification summoning the Assembly as he by virtue of Article 109 can only prorogue it. The order changing the time of meeting from 11-00 a.m. To 3-00 p.m. Passed by the Governor is, however, admitted but the plea is that such an order cannot legally be passed under Article 109 of the Constitution. Except for citing the aforenoted Article and Rules 3 and 4 of the Rules of Procedure of the Provincial Assembly of the Punjab, 1973, no other principle of law or precedent was referred to or relied upon.
3. The plea that Annual and Supplementary Budget cannot be presented on one and the same day and in the same Session was sought to be supported with argument that both the Budgets have been dealt with in the Constitution and the Rules of Procedure under separate Articles and separate Rules and that presentation of the both on one day and in the same Session would thus be violative of scheme of the Constitution. Learned counsel added that Article 120 and Rule 111 of the Rules deal with Annual Budget Statement, while Article 124 and Rule 118 pertain to Supplementary Budget Statement.
4. Learned counsel for the petitioner argued that this Court in exercise of its constitutional jurisdiction can grant the declaration prayed for as the order of the Governor changing the time of the meeting as well as the procedure adopted in presentation of the two Budgetary Statements and in processing these budgets ' for seeking approval from the Provincial Assembly are violative of the provisions of the Constitution. He referred to the case of A.K. Fazalul Quader Chaudhry v. Shah Nawaz and others (PLD 1966 SC 105) to contend that the questions of violation of the Constitution and the interpretation of the provisions of the Constitution squarely fall within the domain of this Court and as such the petition is maintainable.
5. At this stage it may be noted that Mr. Abdul Majid Sheikh, Advocate during the arguments intervened to state that the learned Advocate-General phoned him last night from Rawalpindi to seek adjournment of the case, as the learned Advocate-General is busy before the Supreme Court at Rawalpindi. The request was opposed by the learned counsel for the petitioner saying .That the adjournment is being sought to frustrate the petition as well as the prayer for interim relief prayed for as to staying the session of the Punjab Assembly. It was added that as the Assembly is continuing its session, the petition will be rendered infructuous if the request for adjournment is allowed. The first thing to be noted in this respect is that the learned Advocate-General has made unprecedented move by seeking adjournment through a private practitioner instead of deputing any one out of the two Additional Advocate-Generals and the team of the Assistant Advocate- Generals, the Law Officers appointed by the Provincial A Government. The Additional Advocate- General and the other Law Officers are appointed by the Government to represent the Government and the other Organs of the Province and if the Advocate-General is not available, it is the duty of the other Law Officers who are being paid from the State Exchequer, to take it as an obligation to appear in order to assist the Court and to represent the Provincial Government and its Organs.
Learned Advocate-General had the notice of the present petition as he remained present on the last date of hearing. In view of above unprecedented conduct of the learned Advocate-General, and other Law Officers and the fact that no justification was made out for adjourning the petition, we decided to proceed with and not to adjourn the petition and so we allowed learned counsel for the petitioner to continue with his arguments.
6. The factual background of the controversy raised in the petition is that the Governor of the Punjab vide order dated 30-5-1990, notified on 2-6-1990, summoned the Provincial Assembly of Punjab to meet on Saturday the 9th June, 1990 at 11-00 a.m. In the Assembly Chambers, Lahore. He appointed the same day for presentation of Supplementary Budget for the year 1989-90 and Annual Budget for the year 1990-91. He through another Notification dated 6-6-1990, changed the time of meeting of Assembly from 11-00 a.m. To 3-00 p.m. The Secretary, Provincial Asssembly, vide notification dated 3-6-1990 issued the schedule of business for the Budget Session 1990. According to this schedule the business fixed for 9-6-1990 is:--
(a) presentation of Supplementary Budget for the year 1989-90;
(b) presentation of Annual Budget for the year 1990-91;
(c) introduction of the Punjab Finance Bill, if any.
' Two days thereafter i.e, 10-6-1990 and 11-6-1990 have been declared off-days, meaning thereby that the Assembly would stand adjourned to meet on 12-6-1990. Other two days i.e, 12-6-1990 and 13-6-1990 have been allocated for general discussion on supplementary budget and the voting on the supplementary demands is scheduled to be held on 14-6-1990. The next day i.e, the Friday 15- 6-1990 is again an off-day and according to the schedule, five days starting from 16-6-1990 to 20- 6-1990 have been reserved for general discussion on Annual Budget for the year 1990-91. The 21st June, 1990 is fixed for private members day in lieu of 19-6-1990. The next day i.e, 22-6-1990 is again an off-day as per schedule and next three days i.e, 23-6-1990 to 25-6-1990 have been reserved for voting on demands for grants for 1990-91. The Tuesday, 26th June, 1990 is the private members day and 27-6-1990, the Wednesday, is reserved for consideration of various expenditures for the year 1989-90 and 1990-91, passage of Punjab Finance Bill, if any and for the official business. Thereafter Session of the Assembly will continue till 30-6-1990 for discharge of official business and private members day in lieu of Friday 19-6-1990, the off-day.
7. The stage is now set for dealing with each of the submissions of the learned counsel for the petitioner. The plea that the Governor after having summoned the meeting can only prorogue it and has no power to change the time once fixed for the meeting of the Assembly may first be taken. In this connection reference was made to Article 109 of the Constitution and Rules 3 and 4 of the Rules of Procedure of the Assembly. Article 109 of the Constitution provides that the Governor may from time to time summon the Provincial Assembly to meet at such time and place as he thinks fit and prorogue the Provincial Assembly. Rule 3 provides that when the Assembly is summoned under Article 109 of the Constitution, the Secretary shall intimate each member the date, time and place of the meeting and shall cause the notification to this effect to be published in the Gazette. Rule 4 provides that when the Assembly is prorogued, the Secretary shall cause the notification to this effect to be published in the Gazette. The power to summon the Assembly to meet at such time and place as he thinks fit, admittedly vests in the Governor and this power, he can exercise from time to time. Now if the power to fix the time is conceded, then power to change time of the meeting initially fixed cannot be disputed as it does not amount to adjourning the meeting or postponing the meeting. It cannot even be taken as an action violative of the privilege of the members or dignity of the Assembly. We are, therefore, of the considered view that the order changing the time passed by the Governor is in no manner violative of the provisions of Article 109 of the Constitution or Rules 3 and 4 of the Rules of Procedure of Assembly.
8. The plea that Annual and Supplementary Budget Statements cannot be presented on one and the same day and in the same Session as both these Statements are subject-matter of separate articles of the Constitution and Rules of Procedure may be dealt with. It is true that Article 120 and Rule 111 of Rules of Procedure deal with the Annual Budget Statement while Article 124 and Rule 118 of the Rules pertain to Supplementary Budget Statement. But the mere fact that these two budget statements are subject-matter of separate articles in the Constitution and the Rules contained in the Rules, does not furnish sufficient basis for holding that these two Budget Statements cannot be ordered to be presented on one and the same day and in the same Session. It was though argued that presentation of the two statements on the same day is violative of the Scheme of the Constitution but despite repeated questioning no such Scheme, which would allegedly stand violated or infringed, of the Constitution was spelled out by the learned counsel for the petitioner.
9. It will be noted that though both the Budgets were ordered to be presented on the same day yet different days have been allocated for general discussion on both the budgetary statements and for voting on respective demands of the two budgets. It will further be seen that the Rules in this respect have been followed and complied with. It will be noted that Article 124 deals with the Supplementary Budget and provides that Articles 122 and 123 of the Constitution shall apply to these statements as they apply to Annual Budget Statement. Rule 118 of the Rules of Procedure provides the same procedure as is prescribed for the budget as far as possible except for the situation provided therein. It is further provided that not more than two days shall be allotted for general discussion of the Supplementary Budget. As per the Schedule of business the Assembly is to stand adjourned for two days after presentation of the two budgetary statements and then two days have been allocated for general dicussion on the Supplementary Budget. It is, therefore, apparent that the Schedule of business so fixed as regards Supplementary Budet is not violative of either the Constitution or the Rule 118 of the Rules. As regards the Annual Budget Statement Article 120 provides that the Provincial Government shall in respect of every financial year cause to be laid before the Provincial Assembly a statement of estimated receipts and expenditure of the Government for that year and this statement shall show separately the sum required to meet the expenditure charged upon the Provincial Consolidated Fund and the sums required to meet other expenditure proposed to be made from the Provincial Consolidated Fund separately. Then Rule 107 provides that the budget shall be presented to the Assembly on such day or days as the Governor may appoint. Rule 110 provides that the budget shall be dealt with by the Assembly in the stages and that for different stages of the budget Speaker shall allot days in accordance with the requirements of the Constitution but at least two days shall elapse between the day the budget is presented and the first day allotted by the Speaker for the general discussion on the budget and that not less than four days shall be allotted by the Speaker for the general discussion of the budget. A perusal of the Schedule of business shows that the annual budget presented on 9-6- 1990 is to come up for general discussion on 16-6-1990 and this general dicussion shall continue for five days i.e, 16-6-1990 to 20-6-1990. It will, therefore, be seen that almost six days elapse between the day the budget is presented and the first day allotted for the general discussion of the budget.
No doubt one day only elapses between the day fixed for voting on the Supplementary demands for grants for the year 1989-90 and the commencement of the general discussion on the annual budget but that is not violative of either the provisions of Article 120 or Rule 111. The presentation of the two budgets on one day and the consideration of the annual budget after voting on the supplementary demands cannot be considered to have the effect of violating any provision of the constitution or the Rules. The Members of the Assembly instead of two days had six days to consider the provisions of the Annual Budget and the fact that in between they have to consider the other matters, may be the supplementary budget, would not render the Schedule of business void or illegal. There is no possibility of any confusion also as separate days have been allocated for general discussion of both the budgets as well as on voting on the demands for grants of the two budgets. We are, therefore, unable to hold that any undisclosed Scheme of the budget would stand violated if both the budgetary statements, annual and supplementary, are allowed to be presented on one and the same day and in the same Session.
10. Moreover the procedure adopted for conducting the proceedings of the Assembly cannot be scrutinized by this Court in exercise of its Constitutional jurisdiction. In the case of A.K. Fazalul Quader Chaudhry (supra) relied upon by the learned counsel for the petitioner it was pointed out that the question raised therein related more to the constitution of the Legislative Assembly itself.
The point raised was "Whether on a true interpretation of the provision of the constitution a sitting member's scat has become vacant or not and that "no matter relating to the regulation of procedure, the conduct of business or the maintenance of order in the Assembly has been brought under review". Again in the case of Mirza Tahir Beg v. Kausar All PLD 1976 SC 504 the observations made by the Supreme Court in the case of Ahmad Saeed Kirmani PLD 1958 SC (Pak.) 397 were quoted with approval:-- "But this Court itself did not attempt to lay down in what particular circumstances proceedings within an Assembly could possibly fall within the jurisdiction of the Courts, except to point out that matters which fell squarely within the definition of internal proceedings of the House would not be subject to scrutiny by the Courts. It was said that whatever can be "fairly described as internal proceedings relating to the proper business of the House would be wholly outside the corrective jurisdiction of the High Court."
11. The Supreme Court in the case of Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 observed that:-- "While it is true that all that fairly concerned the internal proceedings of the house relating to its proper business is immune from challenge in Courts.
' It was further observed that it is difficult to define as to what constitute internal proceedings but this much is clear that they do not extend to any thing and every thing done within the House."... ...
' Thus as a general rule a criminal act done in the House would perhaps not be outside the course of criminal justice (vide observations of Stephen, J., in Bradlaugh v. Gossett at p.283). The test indicated by Sir Erskine May in his book on Parliamentary Practice is as to whether what is said or done "forms part of a proceedings of the House in its technical sense, i.e, the formal transaction of business with the Speaker in the Chair or in a properly constituted committee." It would be neither possible nor desirable to attempt any exhaustive classification of the matters that may be comprised within the term "internal proceedings" but it will be sufficient for my purpose to indicate that whatever is not related to any "formal transaction of business" in the House cannot be said to be a part of its 'internal proceedings."
12. The Supreme Court of Pakistan thus has consistently held that the High Court's constitutional jurisdiction is invokable to correct any error of law or transgression of jurisdiction by any person or authority in the circumstances where interpretation of the provisions of the constitution is involved and the question for determination relates to the constitution of the Legislature so long as the order to be passed is not repugnant to any other provisions of the Constitution. It was observed in the case of A.K. Fazalul Quader Chaudhry (supra) that: "The Constitution contains a scheme for the distribution of powers between various organs and authorities of the State, and to the superior judiciary is allotted the very responsible though delicate duty of containing all other authorities within their jurisdiction, by investing the former with powers to intervene whenever any person exceeds his lawful authority. Legal issues of the character raised in this case could only be resolved in case of doubt or dispute, by the superior Courts exercising judicial review functions, assigned to them by the fundamental law of the land, viz. The Constitution which must override all other sub-constitutional laws. The Judges of the High Court and of this Court are under a solemn oath to "preserve, protect and defend the Constitution" and in the performance of this onerous duty they may be constrained to trespass upon the actions of other authorities of the State within the limits set down in the Constitution, not because they arrogate to themselves any claim of infallibility but because the Constitution itself charges them with this necessary function, in the interest of collective security and stability. In this process, extreme and anxious care is invariably taken by the Judges to avoid encroachment on the constitutional preserves of other functionaries of the State and they are guided by the fullest and keenest sense of responsibility while adjudicating on such a matter."
13. I may add that the judiciary or the judicial department though independent but is an equal co- ordinate branch of the Government and is charged with the duty and power to interpret, construe and apply the constitution and law but in exercise of this power, the judiciary claims no supremacy over other organs of the Government e.g. The legislature but acts only as an administrator of the public will. See The State v. Zia-ur-Rehman and others PLD 1973 SC 49. The judiciary, as such, while exercising the powers under Article 199 has to avoid encroachment on the Constitutional preserves of other functionaries of the State. In this respect effect of Article 127 read with Article 69 of the Constitution is to be noticed. Article 69 reads as under:-- "69. Courts not to inquire into proceedings of Majlis-e-Shoora (Parliament) .--(1) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure.
(2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall he subject to the jurisdiction of any Court in respect of the exercise by him of those powers.
(3) In this Article Majlis-c-Shoora (Parliament) has the same meaning as in Article 66."
'It is because of the presence of these Articles in the Constitution that the superior Courts have refused to scrutinise the internal proceedings and procedure of the Assembly so that the independence and sovereignty of the Legislature in that respect is not infringed and violated or encroached upon in any manner. The Chief Justice Warren of the Supreme Court of United States in the case of Powell v. McCormack, (1969) 23 L Ed 2d 491 observed: "In deciding generally whether a claim is justiciable, a Court must determine whether "the duty asserted can be judicially identified and its breach judically determined, and whether protection for the right asserted can be judicially molded". Baker v. Carr (1962) 369 US 186 at p.198: L Ed 2d 663 at p.674'. Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined, he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded."
14. The plea that the case presented a political question and that the judicial resolution of Powell's claim would produce a potentially embarrassing confrontation between co-ordinate branches of the Federal Government, was answered by the Chief Justice Warren in the following words:- "But as our interpretation of Art. 1, Cl. (5) discloses a determination of petitioner Powell's right to sit, would _ require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded Courts to interpret the law, and does not involve a lack of the respect due to a coordinate Branch of Government, nor does it involve an "initial policy determination of a kind clearly for non-judicial discretion Baker v. Carr (1962) 369 US 186 at 217: 7 L ed 2D 663 at p.696. Our system of Government requires that Federal Courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the Court's avoiding their constitutional responsibility."
' The decision in the case of Powell proceeds on the same lines as was taken by our Supreme Court in the cases of A.K. Fazalul Quader Chaudhry and Tahir Baig (supra).
15. On the question of internal proceedings, the cases decided in the Indian jurisdiction may be noticed. In Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589, it was held: "Even assuming that it is a taxing measure its validity cannot be challenged on the ground that it offends Arts. 197 to 199 and the procedure laid down in Art. 202 of the Constitution. Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure.
' In State of Punjab v. Satya Pal Dang, AIR 1969 SC 903, the provision of Art. 199(4) was held to be directory by the Court. That was a case where the Deputy Speaker certified the Bill instead of the Speaker. The Court, after referring to the facts of that case, was of the view that the Speaker in his then mood might have declined to certify the act. In those circumstances, non-compliance with the provisions of Art. 199(4) was held to be directory and not imperative. Proceeding further the Supreme Court said that even it is an irregularity, it is saved by Art. 212(1)."
16. It may be pointed out that the Articles mentioned in these judgments also talk of annual budget statement and the procedure for money bills and the provisions thereof were held to be directory and not imperative in nature. These irregularities in procedure, in view of the provisions contained in Articles 69 and I 127 cannot be noticed by the Court as the parliamentary practice authorises Legislature to decide what it will dicuss and how it will settle its internal affairs and what code of procedure it intends to adopt. It follows that the Assembly may even depart it is so compulsive from the rules of procedure laid down by itself, and this it can do at its discretion. Professor Erskine May says in his "Parliamentary Practice"--`such a departure will not render its responsibility to be scrutinized by any external authority for not following the rule, which is laid down by itself. These principles point out the independence of the legislature and the Assemblies. Such plenary powers are contemplated in various Articles of the Constitution including Article 127. These powers and the collective privileges contemplated by the provisions of Constitution which are to be liberally interpreted, lead us to the conclusion that the procedural irregularities if any in the proceedings of the Assembly cannot be scrutinized by this Court in exercise of its constitutional jurisdiction.
' For the reasons given above, this petition fails and is dismissed in limine.