AJMAL MIAN, J. ---By this common judgment, we intend to dispose of the above three petitions.
The first to petitions are directed against the judgments dated 19-2-1996 and 29-7-1995 passed by a Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, in I.C. As Nos. 24 and 25 of 1995, filed by the present petitioners against the judgment dated 20-7-1995 passed by a learned Single Judge of the same High Court in Writ Petitions Nos.272 of 1995 and 415 of 1995, filed by the respondents, elected members of the Cantonment Board, Rawalpindi, hereinafter referred to as the Board, against the notifications dated 22-2-1995 and 15-3-1995, allowing the same for the reasons recorded in Writ Petition No.272 of 1995 and supplemented by a further direction recorded in Writ Petition No.415 of 1995. The operative portions of the judgments in both the above writ petitions read as under:-- W . P. No.272/95
12. The declaration under subsection (1) of section 14 of the Cantonments Act, 1924, was illegal, irrational and not sustainable on any view of the matter. It lacked the legal and factual foundation requisite for attracting the exercise of jurisdiction under germane law. Resultantly, both the writ petitions are allowed. The Notification whereby the constitution of the Cantonment Board, Rawalpindi was varied, and the Notification whereby a varied Board consisting of three members was constituted, are set aside as having been issued without lawful authority would be void ab initio and of no legal effect. Costs of both the petitions would be borne by the Federal Government.
W.P.No.415/95:
2. Consequently all the decisions taken, or orders made by the three members varied Board, except to the extent of payment of salaries to the staff of the Cantonment and payment of utility bills shall be void unless ratified by the full Board consisting of elected as well as un-elected members by 30th September, 1995. "
2. Whereas Civil Petition for Leave to Appeal No.437 of 1996 has been filed by the Federation against the order dated 19-6-1996 of a Division Bench of the Lahore High Court in Intra-Court Appeal No.6 of 1996 directed against the aforesaid judgments passed in Writ Petitions Nos.272 and 415 of 1995, dismissing the same on the ground of limitation.
3. The brief facts are that under section 13-A (which was substituted by Cantonments (Amendment) Ordinance XLIV of .1979) of the Cantonments Act, 1924, hereinafter referred to as the Act, a Cantonment Board comprises 25 members I e. 13 official members and 12 elected members.
The Station Commander acts as the President of the Board, whereas out of the 12 elected members, a Vice-President is elected. It seems that in November, 1991, 12 members were elected for the Board. Out of the above elected members, one Hafiz Hussain Ahmed, was elected as the Vice- President. It appears that a no---confidence motion was moved against him on 4-12-1994, which was carried by majority of 2/3rd members on 18-1-1995. It further seems that on 7-12-1994 aforesaid Hafiz Hussain Ahmed had filed an application against respondent No.7 in C.P.L.A. No.435 of 1996, Ch. Tanvir Khan, before the Station Commander and the President of the Board for getting him declared as disqualified on account of his alleged political affiliation, but the same was rejected. It appears that on 23-1-1995 the President of the Board addressed a letter to the Director - -General, Military Lands and Cantonments, stating therein that all the members of the Board were affiliated with some political party and presently they had grouped themselves into to factions i.e. Muslim League (N) group and Pakistan People's Party group and that they were using the Board as a platform for projecting their political party's image. It was also stated that the above environment was highly politicised which did not help in the efficient working of the Board. It seems that the above letter culminated in issuing of notification dated 22-1-1995 under subsection (1) of section 14 of the Act, varying the constitution of the Board in terms of the above provision for a period of one year and with it mediate effect. This was followed by another notification dated 15-3-1995 under clauses (b) and (c) of subsections (2) and (3) of section 14 of the Act, nominating to personnel mentioned therein as the members of the Board. Both the above notifications were impugned through the aforesaid writ petitions, which were allowed in the aforementioned terms and the judgments thereof were maintained in the above I.C. As.
4. It may be pertinent to mention that during the pendency of the above I.C. As., a fresh notification dated 18-2-1996 was issued under subsection (4) of section 14 of the Act extending the period of one year of the above notification dated 22-2-1995 for a period of one year commencing from 22- 2-1996.
5. In support of the above petitions, Mr. Gul Zarin Kiani, learned ASC, has vehemently contended that the- learned Judge in Chambers as well as the learned Judges of the Division Bench were not justified in interfering with the aforesaid notification dated 22-2-1995 as it was for the Central Government to satisfy itself, whether it was necessary to vary the constitution of the Board for the reasons mentioned in clauses (a) and (b) of subsection (1) of section 14 of the Act and not for the Court to sit as a Court of appeal. His further submission was that a Cantonment Board cannot be equated with a Municipal Corporation as the object and scope of duties of the above to local bodies are different. In furtherance of his above submissions he has referred to the case of Rehmat Gill and another v. Quetta Cantonment Board (PLD 1983 SC 133) and the case of Haji Muhammad Masud v. Islamic Republic of Pakistan and others (PLD 1958 (W.P.) Lahore 985).
He has also submitted that, 'in any case, the Courts below were not justified in holding that all the decisions taken or orders made by the three members varied Board, except to the extent of payment of salaries to the staff of the Cantonment Board and the payment of utility bills, shall be void until ractified by the full Board consisting of elected as well as un-elected members by 30-9- 1995.
On the other hand, Mr. Muhammad Munir Piracha, learned ASC appearing for the respondents/caveators, has urged that the Courts below have correctly construed the word "satisfy" employed in subsection (1) of section 14 of the Act. His further submission was that section 14 of the Act is to be construed in line with the provisions of Articles 29 and 32 of the Constitution. He has also submitted that though under Article 58(2)(b) of the Constitution the President has the discretion to dissolve the National Assembly if he is of the opinion that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary, but this Court in the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166), the case of Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another (PLD 1992 SC 646) and the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) has held that the President under the aforesaid provision of the Constitution does not have an absolute discretion but is deemed to have a qualified one in the sense that it is circumscribed by the object of the law that confers it.
6. Before dealing with the above contentions of the learned counsel for the parties in detail, it may be pertinent to reproduce section 14 of the Act and clause (2)(b) of Article 58 of the Constitution, which read as follows:- Section 14 of the Act:
14. Power to vary constitution of Boards in special circumstances.--(1) Notwithstanding anything contained in section 13-A, if the Central Government is satisfied--
(a) that, by reason of military operations it is necessary, or
(b) that for the administration of the cantonment, it is desirable, to vary the constitution of the Board in any cantonment under this section, the Central Government may, by notification in the official Gazette, make a declaration to that effect.
(2) Upon the making of a declaration under subsection (1), the Board in the cantonment shall consist of the following members, namely:--
(a) the Officer Commanding the Station; '
(b) one military officer nominated by name by the Officer Commanding the Station by order in writing;
(c) one member, not being a person in the service of the Government, nominated by the Officer Commanding the Station: Provided that in its application to the Wah Cantonment this sub=section shall be read as if in clause (a), at the end thereof, the words ' or, if the Central Government so directs, any civil or military office nominated by the Competent Authority' were added, and in clause (b) for the words 'military officer' the words 'civil or military officer' were substituted.
(3) Every nomination of a member of a Board constituted under this section, and every vacancy in the membership thereof, shall be notified by the Central Government in the official Gazette.
(4) The term of office of a Board constituted by a declaration under subsection (1) shall not ordinarily extend beyond one year: Provided that the Central Government may from the to the, by a like declaration, extend the term of office of such a Board by any period not exceeding one year at a the: Provided also that the Central Government shall forthwith direct that the term of office of such a Board shall cease if, in the opinion of the Central Government, the reasons stated in the declaration whereby such Board was constituted, or its term of office was extended, have ceased to exist.
(5) When the term of Office of a Board constituted under this section has expired or ceased, the Board shall be replaced by the former Board which, but for the declaration under subsection (1), would have continue to hold office, or, if the term of office of such former Board has expired, by a Board constituted under section 13-A.
Article 58(2)(b) of the Constitution: 58.--(1).............................................................................
(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,--
(a) -----------------------------------
(b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary."
7. It may be noticed that subsection (1) of section 14 of the Act provides that notwithstanding anything contained in section 13-A (which provides for the composition of the Board as a whole), if the Central Government is satisfied,- (a)that, by reason of military operations it is necessary, or
(b) that for the administration of the cantonment, it is desirable, to vary the constitution of the Board in any cantonment under this section, the Central Government may, by a notification in the official Gazette, make a declaration to that effect.
It may further be noticed that subsection (2) thereof provides the consequence of the declaration referred to in subsection (1) by providing that the Board shall consist of:---
(a) the Officer Commanding the Station;
(b) one military officer nominated by name by the Officer Commanding the Station by order in writing;
(c) one member, not being a person in the .Service of the Government, nominated by the Officer Commanding the Station.
In other words, the Board as contemplated in aforesaid section 13-A which comprises 25 members as above is substituted by three personnel mentioned in aforesaid subsection (2). It may be observed that though subsection (1) of section 14 uses the expression "to vary the constitution of the Board" but the consequence provided in' subsection (2) is in fact a substitution and not variation as is evident. Be that as it may, the other subsections need not be dilated upon in detail.
However, it will suffice to observe that subsection (4) lays down that the term of office of the Board constituted by a declaration under above subsection (1) shall not ordinarily extend beyond one year subject to the to provisos contained in the aforesaid subsection, which envisage the extension of the above period of one year by the Central Government from the to the not exceeding one year at a the.
It may be stated that aforementioned clause (2) of Article 58 of the Constitution confers discretion on the President notwithstanding anything contained in clause (2) of Article 48, to dissolve the National Assembly where, in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an Appeal to the electorate is necessary.
It is pertinent to point out that in subsection (1) of section 14 of the Act, the expression used is "if the Central Government is satisfied", whereas in aforesaid clause (2) of Article 58 of the Constitution, the words employed are "in his discre tion where, in his opinion.
8. Reverting to the above submissions of Mr. Gul Zarin Kiani, learned ASC, it may be stated that he has relied upon heavily on the above to reports. In the case of Rehmat Gill and another (supra), the question in issue was, whether sub-clause (a) of subsection (3) of section 1 of the Industrial Relations Ordinance, 1969, which excludes the application of the I.R.O" to any person employed in the Police or any of the defence services of Pakistan or any of the defence services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government, was applicable to the employees of the Cantonment Boards. This Court, while affirming the judgment of the High Court holding that the employees of the Cantonment Boards were excluded from the application of the Industrial Relations Ordinance, observed as under:--- "The ordinary dictionary meaning of Cantonment (Chambers' Shorter English Dictionary) is 'the temporary quarters of troops in India a permanent military town'. The Cantonments Act, 1924 reflects and recognizes this meaning. The Central Government is authorized (section 3.) to declare by notification in the official Gazette a cantonment. Only such place or places can be declared a cantonment where 'any part of the regular forces or the regular air force of Pakistan is quartered or which being in the vicinity of any such place or places is or are required for the services of such forces.' The very raison d'etre for a cantonment is the quartering or the requirements in the vicinity concerning the quartering of regular forces. In this context therefore all the duties of cantonments, though some of them may be routine duties of a purely municipal character, are directed towards the quartering of the troops and their requirements. The proportion of civilian population n a cantonment, the extent to which it is affected is not determinative but only incidental to the primary function of the Cantonment Boards. Section 11 of the Cantonments Act makes the Cantonment Boards body corporate. Section 13-A read with section 30' makes the officer commanding the station the President of the Board. The municipal duties of the Boards are prescribed in section 116. Section 117(2) permits the Cantonment Boards to undertake certain duties and incur expenditure outside the cantonments limits as well on conditions being satisfied. "
9. The second report relied upon by Mr. Kiani covers the case of Haji Muhammad Masud (supra), which is a judgment of a learned Single Judge of the erstwhile ~ High Court of West Pakistan, in which the interpretation of subsection (4) of section 26 of the Act was involved which empowers the Central Government to direct that the old electoral roll shall continue in operation until the new roll is published notwithstanding the expiry of one year period referred to in above subsection (4) of section 26 of the Act. It was held that the Government could continue in operation old electoral roll for more than one year. The above provision was examined in juxtaposition with the proviso contained in subsection (1) of section 15 of the Act, which lays down that "Provided that the Central Government may, when satisfied that it is necessary in order to avoid administrative difficulty, extend or reduce the term of office of all the elected members of a Board by such period as it thinks fit." In that context, the following observations were made: There is nothing in the Act to indicate any limitation on the powers conferred on the Central Government by the fourth subsection of section 26. In fact all the gatherable indications point to the contrary conclusion. Unlike section 15, this subsection does not require that before exercising the power there under the Government should be satisfied that it is necessary in order to avoid administrative difficulty". The power is simpliciter and is unfettered by any condition precedent or qualification. Again, subsection (2) gives the right of vote to the person whose name appears in the electoral roll 'so long as the roll remains in force', and not in the electoral roll either of that year or of the preceding year or of more than to years old.
10. The ratio decidendi of the above three judgments of this Court on the interpretation of above clause (2)(b) of Article 58 of the Constitution relied upon by Mr. Piracha inter alia seems to be as under:--
(i) That the formation of opinion under clause (2) of Article 58 of the Constitution, being objective in nature, can be judicially examined and reviewed by the Courts;
(ii) that though in the above clause (2) the words "discretion" and "opinion" have been used but the Court has power to examine the question, as to whether the grounds existed on the basis of which an honest opinion could have been formed; (i.e) that the grounds, on the basis of which dissolution order is passed, should have nexus with the object provided for in above sub-clause (b) of clause (2) of Article 58, namely, "that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is
(iv) that if a petitioner can show that no grounds existed on the basis of which an honest opinion can be formed "that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary", in such a case, the President's Order for dissolving the National Assembly would be unconstitutional and open to correcting through judicial review.
11. The above three judgments of this Court support the view which found favour with the Courts below. We are inclined to hold that it was open to the Courts below to have examined the question, whether the satisfaction of the Central Government referred to in subsection (1) of section 14 of the Act was founded on the grounds having nexus with objects mentioned in the above --quoted clauses (a) and (b) of aforesaid subsection (1) of section 14. Admittedly, clause (a) is not attracted to the case in hand as it has not been contended by the petitioners that the impugned notifications were issued because they were necessary by reason of military operations. The question, therefore, arises, as to whether above clause (b) of subsection (1) of section 14 of the Act could have been pressed into service which provides that "that for the administration of the cantonment it is desirable". The aforesaid clause can be invoked if it can be shown that the at of variation of the constitution of the Board in terms thereof will eliminate the obstruction in the smooth functioning of the cantonment. In the present case, nothing has been brought on record to indicate that the conduct of the elected members was such which imperilled/hampered the smooth functioning of the Board. The only facts which have been brought on record are that a vote of no-confidence was successfully moved against the Vice-President, Hafiz Hussain Ahmed, and that the latter had filed an application before the President of the Board against respondent No.7, Ch. Tanvir Khan, for getting him disqualified. This has also been stated that the elected members were grouped into to factions, namely, Muslim League (N) and Pakistan People's Party. Simpliciter the above facts, without having nexus with the smooth working of the administration of the Board, in our view, are not sufficient to dislodge the elected members of the Board. At this juncture, it will not be out of context to point out that Article 7 of the Constitution gives the definition of the term 'State' by providing that "In this Part, unless the context otherwise requires, 'the State' means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess".
The above definition apparently would include local and other authorities in Pakistan which are empowered by law to impose any tax or cess. Since admittedly the Board has power to levy tax, it is covered by the aforesaid definition of the term "State".
12. It may further be observed that Article 29 of the Constitution, (which is I the first Article provided in Chapter II relating to Principles of Policy), enjoins that the Principles set out in the above Chapter shall be known as the Principles of Policy and that it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the Sate, to at in accordance with those Principles in so far as they relate to the functions of the organ or authority.
The above Article 29 is to be read in conjunction with Article 32 of the Constitution which provides that "The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women".
13. The construction which we are inclined to place on subsection (1) of section 14 of the Act is in consonance with the spirit of the above Articles of the Constitution.
There is no doubt that the ordinary dictionary meaning of the word "cantonment" as given in Chambers' Shorter English Dictionary referred to in the above-quoted extract form the judgment in the case of Rehmat Gill and another (supra) is "the temporary quarters of troops in India, a permanent military town". However, we may point out that strictly speaking the above definition is no longer applicable to the cantonment areas in Pakistan. The cantonment areas in Pakistan have undergone material change on account of floating of Defence Housing Societies in various cities of Pakistan by the Armed Forces, in which transfer of allotments of plots to civilians is permissible and so also renting out houses/shops to them. Such societies though are situated within the cantonment areas but most of the inhabitants are civilians either as the owners of the houses/shops or the tenants thereof. For example, the Defence Housing Society in Karachi is one of the largest housing societies in Pakistan. It is inhabited by several lacs of people. The serving and retired armed personnel who reside in the aforesaid society constitute a very small percentage of the above population. It is true that even now the paramount duty of a Cantonment Board or in other words the very raison d'etre for a Cantonment Board is the quartering or the requirements in the vicinity concerning the quartering of regular forces and, therefore, cannot be equated with a municipal corporation/committee/council, but since Cantonment Boards have taken upon themselves the municipal functions in respect of the areas in which civilians also reside and/or which are mostly populated by civilians, the law-makers provided representation to the civilian population under above section 13-A of the Act so that they may protect their interests and may have sense of participation in the discharge of the municipal functions of the boards. The above provision of the Act is in line with above Article 32 of the Constitution, which enjoins that the State shall encourage Local Government institutions composed of elected representatives of the areas concerned. The provision of section 14(1) is to be construed keeping in view the above Article of the Constitution. The elected members cannot be dislodged on a ground not sustainable in law.
The above to reports relied upon by Mr. Kiani do not advance the petitioners' case, as they have not touched upon the controversy in issue. Whereas the above three judgments of this Court indicate that they have direct bearing on the question in issue.
14. Mr. Gul Zarin Kiani, learned ASC for the petitioners, has invited our attention to the provisions of Ordinance No. LXXXVI of 1996 issued on 15-8-1996 i.e. The Cantonments (Second Amendment)
Ordinance, 1996, whereby inter alia section 15-E of the Act was amended empowering the Federal Government to dissolve the Board on the completion of the term of the members specified in the above section.
The above Ordinance was repeated in the form of Ordinance NO:XLII of 1996, gazetted on 27-4- 1996. Admittedly, no action has been taken under the above provision of the aforesaid Ordinance before the expiry of the same and, therefore, in our view, it is not necessary to discuss the import of the same in this case.
15. Lastly, it was submitted by Mr. Kiani that the learned Judge in Chambers through the supplementary direction contained in the judgment in Writ Petition No.415 of 1995 has declared all the decisions taken or orders made by the three members varied Board except to the extent of payment of salaries to the staff of the Cantonment and payment of utility bills unless ratified by the Full Board consisting of elected as well as un-elected members by 30th September, 1995; which date has already expired and, therefore, the above direction cannot be complied with.
16. On the other hand, it has been pointed out by Mr. Muhammad Munir Piracha, learned counsel for the respondents, that since the official members constitute majority in the Board i.e. They are 13 in number our of 25, the Board will not encounter any difficulty to comply with the above direction.
17. Since the date mentioned in the aforesaid supplementary direction contained in the judgment of Writ Petition No. 415 of 1995 has already expired, we substitute 15-11-1996 as the date in place of 30-9-1995. With the above modification, leave is refused the interim order dated 28-8-1996 passed by this Court is hereby recalled.