S.A. RABBANI, J.---The dispute incase relates to the allotment of Plot No,P.A-64, measuring 9228 sq. yards, situated at Sirajudaula Road, Bahadurabad, Karachi. This plot was allotted to Bahadar Yar Jang Foundation (Pvt.) Limited, respondent No,7, by Bahadur Yar Jang Cooperative Housing Society Limited, respondent No,6.
2. The petitioners claim to be life members of Osmania University Old Boys Association and further claim that the plot was an amenity plot and was illegally allotted to respondent No,7. Litigation in this regard continued before the fora under the Cooperative Societies Act, 1925 (VII of 1925). Ultimately, the respondent No,
1. Who was Adviser to the Chief Minister Sindh, passed order, dated 25-6-1998 and 1-1-1998 exercising powers of the Provincial Government under section 64-A of the Cooperative Societies Act.
3. The following are the two main prayers in the petition.
"It is prayed that this Hon'ble Court may be pleased to declare:--
(1) That the impugned orders of respondent No,1 dated 25-6-1998 and 1-7-1998 and impugned order of respondent No,3 dated 28-12-1995 and impugned order of respondent No,4, dated 16-12- 1996 are without jurisdiction, mala fide, illegal and ultra wires.
(2) That the amenity Plot No,P.A-64, measuring 9228 sq. Yards, allotted on 4-3-1971 by respondents Nos.5 and 6 to respondent No,7 is in violation of Article 23 of the Constitution of Islamic Republic of Pakistan."
4. The petitioner No,1, who is himself an Advocate, contended that the exercise of powers by respondent No,1 under section 64-A of Cooperative Societies Act, was illegal. He further based his case on many factual aspects of the controversy.
5. Mr. Arif Bilal Sherwani, learned counsel for respondent No,7, cited a similar case reported in 1990 M LD 389. It was the case of Karachi Cooperative Housing Societies Union Limited v. Government of Sindh and 6 others. In that case also, the powers of the Provincial Government under section 64-A of the Cooperative Societies Act were exercised by an Adviser to the Chief Minister, Sindh and under those orders he passed the impugned order. In that case, the petition was allowed by a Division. Bench of this Court but it was on the ground that the impugned order was passed before Rules 6 and 7 of the Government of Sindh Rules of Business, 1986 were amended to provide for appointment of an Adviser and delegation of power, to him.
6. Mr. Arif Bilal Sherwani, however, contended that even in case it is held that the exercise of powers by the Adviser to the Chief Minister, was illegal, this petition cannot be allowed because the petitioners were not a party to the litigation challenged through this petition. We are unable to agree with Mr. Sherwani with regards to this proposition because being a party to a previous litigation is not a pre-condition for approaching the High Court for exercise of jurisdiction under Article 199 of the Constitution. Any aggrieved person is entitled to move for exercise of such jurisdiction.
7. In their lengthy petition, the petitioners have raised numerous pleas and questions relating to the facts of the controversy which could be a ground for refusal of the discretionary relief under the Constitutional jurisdiction, but since the final impugned orders were passed by Adviser to the Chief Minister in exercise of powers of the Provincial Government under section 64-A of Cooperative Societies Act, which he used by virtue of the delegation under rule 6(ii) of the Sindh Government Rules of Business, 1986, the validity of the delegation of these powers to the Adviser as well as his legal status are in question here. The subject is of utmost consequence and importance and needs thorough examination to determine the validity of the appointment, status and scope of functions of the Advisers that are appointed by the Provincial Government under the Constitution.
8. Mr. Raja Qureshi, learned Advocate-General, Sindh, submitted that the respondent No,1 was appointed Adviser to Chief Minister in exercise of powers under rule 6(i) of the Rules of Business, 1986, and through Notification No,SOVI(S&GAD)13(25)/97, dated 8th January 1998, the Chief Minister, under rule 6(ii) of the said Rules, delegated powers of Minister for Cooperation to the said respondent. He frankly submitted that this is the only legal support available in favour of the exercise of power by the respondent No, 1.
9. The Constitutional history on the subject may be relevant and useful for the purpose. The National Assembly of Pakistan that gave the Constitution of Islamic Republic of Pakistan in 1973, appointed a Constitution Committee by a resolution, in April, 1972, to prepare and draft a permanent Constitution. The Committee submitted its report, alongwith the draft, giving outlines of the basic structure of the Constitution. It envisaged a Parliamentary system based on elected representatives of the people and a trichotomy of powers for Legislature, Judicature and the Executive. However, the Committee used the term Government for the Executive and it was carried on to the Constitution. The report provided that the executive authority of the Province shall be exercised by the Provincial Government consisting of the Chief Minister and the Provincial Ministers.
It, thus, excluded any other appointee, like Adviser, from the meanings of Provincial Government.
Accordingly, the original Constitution passed in 1973, did not recognize an Adviser, both at Federal as well as Provincial level.
10. The concept was introduced only through the Constitution (Sixth Amendment) Act, 1976, whereby "Adviser to the Prime Minister' and Adviser to a Chief Minister' were inserted in Article 260 in the definition of service of Pakistan". Yet nothing was provided in the Constitution to authorise appointment of such an Adviser.
11. In 1985, through the Revival of the Constitution of 1973 Order (P.O. 14 of 1985) extensive amendments and substitutions were made iii the Constitution. The Article relating to the Federal Government and the Provincial Governments were substituted and that introduced present Article 93 providing for the appointment of five Advisers at the Federal level. No corresponding provision was, however, made for the Provinces.
12. Insertion of an express provision for appointment of Advisers at the Federal level means that such an express provision was necessary to authorise such appointment. As an essential corollary, therefore, omission of such a provision in the case of provinces would mean a prohibition and inability in respect of appointment of an Adviser. An adviser like that provided for in Article 93, cannot, therefore, be appointed in the Provinces.
13. It may, however, be noted that the Adviser provided for in Article 93 is not the same as Adviser to Prime Minister or Adviser to Chief Minister mentioned in Article 260. They are two different categories. When they were excluded from the definition of Service of Pakistan. Under the scheme of the. Constitution, the functions of the Adviser appointed under Article 93, are limited to the Houses of Parliament. They are not included in the Federal Government as it was defined by the Constitution Committee to be consisting of the Prime Minister and the Federal Ministers. Moreover, to give powers of Ministers to an unelected Adviser, would be against the concept of elected Government envisaged by the Constitution.
14. Mention of Adviser to Chief Minister in Article 260 of the Constitution means that an Adviser to Chief Minister can be appointed, but the appointment can only be made on the authority given by an appropriate law viz., an enactment or a temporary substitute under Article 128 of the Constitution. But even if an Adviser to Chief Minister is appointed in exercise of powers conferred by an enactment, he cannot be given powers and functions of a minister as he is riot a member of the Cabinet and it will be contrary to the scheme of the Constitution.
15. Uncles Article 139(3) of the Constitution, the Governor has been empowered to make rules for the allocation and transaction of the business of the Provincial Government. These rules cannot include power of any appointment because it is beyond the scope of the purpose that is merel "allocation and transaction of the business of the Provincial Government". Insertion of rule 6 was, obviously, on the, basis of ill-advice and misconceived recommendation. Rules 6 of the Government of Sindh Rules of Business, 1986, being beyond the- powers of the Governor conferred by Article 139(3) of the Constitution, is ultra vires, void ab initio and of no legal effect. Accordingly, the appointment of the respondent No,1 was invalid and without lawful authority. Consequently, the impugned orders passed by this respondent are without lawful authority and of no legal effect.
Petition is, accordingly, allowed to the extent and the matter is remanded to the respondent No,2 for proceedings and decision according to law.