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Petitioner: Mehar ZULIFQAR ALI BABU And 3 Others VS Respondent: GOVERNMENT OF PUNJAB JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Fazal Ilahi Khan, Raja Afrasiab Khan Title:Mehar ZULIFQAR ALI BABU And 3 Others vs GOVERNMENT OF PUNJAB
JUDGMENT
Reported As: 1997 SCMR 117 Result: Order accordingly Judgment JUDGMENT RAJA AFRASIAB KHAN, J.---On 28th December, 1991, elections to the Punjab Local Bodies were held under the Punjab Local Government Ordinance, 1979 (hereinafter called the Ordinance). The members of the elected local bodies were given oath and, accordingly, they took charge of their offices on 9-2-1992. Their tenure commenced from this date onward which would come to an end on 9th of February, 1997 under section 26 of the Ordinance. On 15th of August, 1993, the Governor of Punjab issued Notification No. SOV (LG) 3-32/93 under section 26-A of the Ordinance with direction that fresh elections would be held in the month of January 1994. The said notification reads as follows:-- "In exercise of the power conferred on him under section 26-A of the Punjab Local Government Ordinance, 1979, the Governor of the Punjab is pleased to direct that fresh elections to the Local Councils in the Punjab will be held in the month of January, 1994 and as a consequence thereof the term of office of the said Councils stands curtailed with immediate effect. The Governor is further pleased to appoint the persons and authorities shown in column No. 3 of the Schedule given below as Administrators of the Local Councils mentioned against them in column 2 thereof." Mehar Zulfiqar Ali Babu etc. Instituted Constitution Petition No. 9009 of 1993 to call in question the legality of the aforesaid notification. On 30th of January, 1994, a learned Judge .Of the Lahore High Court decided the writ petition alongwith other identical matters in the following manner:--
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"The Government is, therefore, well advised to hold elections to the local councils till 31-3-1994. The date has been fixed keeping in view the the required for making necessary arrangements for holding the elections, the Holy month of Ramazan and the harvesting season. This is all the more necessary to create uniformity. There are 29 Zila Councils, one Metropolitan Corporation, 7 Municipal Corporations, 63 Municipal Committees, 135 Town Committees and 2392 Union Councils with thousands of Councilors and innumerable office-bearers in the Province. Only a small fraction i.e. 12 Zila Councils, the Metropolitan Corporation, one Municipal Corporation and one Municipal Committee are before the Court. The High Court can grant relief under Article 199 of the Constitution to an "aggrieved party" and not to those who seem to have foregone their rights, if any. However, it is made very clear, that if the election process is not completed by 31st of March, 1994, it would mean that the Government is not interested in the general public good, the will of the political sovereign ------------------- electorate in the Province is not being honoured, and the provisions of the Ordinance are being violated, breached and by passed. All this would be hit by Article 4 of the Constitution (to be treated in accordance with law is the inalienable right of every citizen). In that eventuality the law must have its course and the writ petitioner Local Councils shall, stand revived w.e.f. 1-4-1994. " W.P. No. 9194 of 1993 was dismissed due to the death of the petitioner, Mian Abdul Majid. Civil Miscellaneous Application No.1858/93 of Muhammad Latif Rana and another application filed by Muhammad Iqbal Khokhar, Advocate in W.P. No. 9009 of 1993 for their impleadment as patty were dismissed because the learned counsel did not argue their cases. Intra-Court Appeals Nos.81, 92, 93, 96, 97, 102 and 123 to 132 of 1994 were instituted to assail the impugned judgment. Writ Petition No. 2311 of 1994 challenging the notification dated 15th of August, 1993 was also brought before the Court. On 5-4-1994, the Governor of the Punjab promulgated the Punjab Local Government (Amendment and Validation) Ordinance, 1994 whereby an explanation was added to section 26-A which is as follows:-- Explanation.-For the removal of doubts it is hereby declared that the Government has and shall be deemed always to have had the power to curtail the term of the Local Councils regardless of the duration of the residual term of the said Local Councils". Section 3 is a validation clause, which is in the following terms:- "Validation. --Notwithstanding anything contained in section 26-A of the Punjab Local Government Ordinance, 1979 (VI of 1979), before its amendment by this Ordinance, or any judgment or order of any Court or other authority or any proceeding pending before any Court or other authority, any Notification under the aforesaid section 26-A, issued before the commencement of this Ordinance, shall be valid and shall be deemed always to have been validly issued." The result was that the earlier notification was superseded by issuing another notification on 5-4- 1994 where under elections to the local councils were ordered to be held on 27-7-1994. The tenure of Local Bodies was curtailed with immediate effect. This being the position, the aforesaid matters were declared to have become infructuous and as such were dismissed by the Division Bench on 9-4-1994. The appellants challenged this order through petition for leave to appeal. This Court after hearing the learned counsel for the parties, converted petition into appeal and allowed the same by remanding the case to the High Court with direction to decide it on merits after obtaining the amended memo of appeal. On remand, the Division Bench of the Lahore High Court vide its judgment dated 19th of February 1995 upheld the judgment of learned Single Judge with modification observing:-- "The learned Single Judge did not feel persuaded to exercise discretion in favour of reviving the dissolved Local Councils in the facts and circumstances of this case. The view which prevailed for
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declining to exercise discretion was that there was allegations of large-scale embezzlement in Local Councils Fund and that the members had openly announced their affiliation with a particular political party in the writ petition which was violative of the law and the rules. This view was taken considering that the elections of members of the Local Bodies under the law were required to be held on non-party basis with a view to keep the Local Bodies free from the influence of the political parties. It was found to be not a fit case on account of this conduct of the members of the Local Bodies for exercising discretion in favour of their revival. The question of revival or otherwise of the Local Councils engaged on serious consideration and we heard learned counsel for the parties at length. The impugned decision to dissolve the Local Councils was taken by the then care-taker Provincial Government installed as a result of consensus at the national level between the to rival political forces for a limited purposes of holding free, fair and transparent general elections in the country. The said Government cannot be said to have any political motive to benefit itself while taking such a decision. Though in the normal circumstances as argued by Mr. S.M. Zafar, Advocate, there may be no nexus between the general elections in the country and the Local Councils but in the peculiar circumstances of this case if the care-taker Government in order to achieve the object of holding fair and free general elections took such a decision the same was not wholly without substance, as `such, it did not suffer from mala-fide as was urged in the Constitutional petition. The idea behind the dissolution of the Local Councils appears to be that there should be no possibility of raising any plea that the members of the Local Council who had been declaring their affiliation with a particular political party had used the Local Councils Funds for any party in the General Elections. For this additional reason also, we are not inclined to disagree with the learned Single Judge on the question of declining the exercise of discretion against the restoration of the Local Councils. We, however, do not find ourselves in agreement with the learned Single Judge that in case the elections were not held as directed by him only those Local Councils should be restored which had filed the writ petitions and not the others. The notification/impugned order was one single transaction as such there is no reason not to revive all the Local Councils in case the Government fails to hold elections as ordered. For the foregoing reasons, the impugned judgment of the learned Single Judge is upheld with the modification that in case within three months from today the process for holding fresh elections of the Local Bodies is not commenced and taken to its logical conclusion, all the Local Bodies shall automatically stand revived. In the above terms all the appeals and the writ petitions are disposed of. The parties are left to bear their own costs. Mehar Zulfiqar Ali Babu etc. Again came before this Court through C.P. 245-L/95 to question the validity of the impugned judgment. Another C.P. No. 471-L/95 was filed by Humair Hayat Khan Rokhri. The 3rd matter was brought by Attiqur Rehman vide C.P. No. 585-L/95. These petitions had arisen out of common judgment of the High Court on the same controversy. All the matters were, therefore, clubbed together for their hearing and disposal. It may be noted that Attiqur Rehman moved an application before the High Court to become party in the proceedings when the arguments had already been concluded by the parties but the judgment was still to be announced. The Advocate-General did not raise objection for his becoming a party. This being so, the applicant, Attiqur Rehman was made party in the case with the following order:-- "C.M. No. 1745/94 and C.M. 1764/94, have been moved by R.I Attiqur Rehman and Mr. Zulfiqar Ali Bajwa respectively for impleading them as parties in this appeal. Their case is that they were members of the dissolved Local Councils and would be affected by the decision in the appeal for if the appeal is accepted they would also be the beneficiaries. Learned counsel for the said petitioners appearing today stated that if the petitioners appearing are made parties they will not
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press for the rehearing of the appeal as they would adopt the arguments already addressed favour of the appeal. C.M. No. 1746 of 1994 has been moved by R.I Atiq-ur-Rehman for issuance of a direction to the Provincial Government not to hold fresh local bodies elections till the disposal of the appeal, because if the same are allowed to be held it would create complications. Learned Advocate-General states that in principle the Provincial Government has .No objection to: the grant of the prayers made in these miscellaneous applications. We also on considering the prayer to stay forthcoming local bodies elections find the same reasonable for if ultimately the appeal succeed the entire exercise of holding of local bodies elections and spending huge amount from public exchequer would be futile exercise and go waste which eventuality in the interest of justice should be avoided. For the foregoing reasons, these petitions are allowed. The petitioners are impleaded as appellants in the appeal. As they do not want to advance further arguments, therefore, no further hearing is necessary as consequence of their impleadment. The Provincial Government is hereby restrained from holding local bodies elections till the disposal of the appeal. This disposes of these miscellaneous applications." On 26th May 1996 leave to appeal was granted to the appellants observing:-- "There is prima facie force in the argument of the learned counsel. Leave to appeal in the aforementioned petition is, therefore, granted. These connected matters shall be heard and decided in the 3rd week of June 1996. In view of the importance having been involved in the cases, a request may be conveyed to the Hon'ble Chief Justice of Pakistan for constitution of a larger Bench for hearing the appeals. Interim relief already given in Civil Petition No. 585-L/95 (Attiqur Rehman v. Government of the Punjab etc.) would continue till the final hearing of the appeals." 2. We have heard Syed Iftikhar Hussain Gillani, Mr. Maqbool Illahi Malik and Ch. Muhammad Farooq learned Advocates on behalf of the appellants. The respondents were represented by Mian Abdul Sattar Najam, learned Advocate=General Punjab. Syed Iftikhar Hussain Gillani has submitted that the respondent, Government did not challenge the judgment of the Lahore High Court under which beyond a specific period, the local bodies were ordered to be revived, in case, fresh elections were not held. The fresh elections were not held as undertaken by the Government within the stipulated period and as such, the Local Councils throughout the Province of Punjab stood revived automatically by operation of the impugned judgment. He argues that mala fide on the part of the Government was established inasmuch as twice clear commitments were made by it to hold elections but the undertaking was never' fulfilled by giving a positive schedule to that effect. He has submitted that there was no jurisdiction/powers vested in the Government to deprive the appellants to complete their term of office under section 26 of the Ordinance read with Articles 2, 2A and 17 of the Constitution of Islamic Republic of Pakistan, 1973. He contends that full tenure of 5 years as fixed under section 26 of the Ordinance had to be ordered to be completed by the appellants to meet the ends of justice. It is added that issuance of notification by Government curtailing the tenure of the local bodies was an at without jurisdiction, mala fide, coram non judice and as such it did not exist in law. 3. Mr. Maqbool Illahi Malik, learned counsel for the appellants has stated that validity of section 26- A of the Ordinance was open to objection because it was surely a case of excessive delegation of legislative powers by the Legislature to the executive which was forbidden by law. To support the plea, he has relied upon the Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854) and Haji Ghulam Zamin and another v. A.B. Khondkar and others (PLD 1965 Dacca 156). He has maintained that the tenure of the local bodies could not be shortened or brought to an end abruptly on the pretext of allegations of corruption or embezzlement of public funds. He has urged that no such drastic action could be taken unless the allegations were proved in a Court of law on
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the basis of concrete evidence. According to the learned counsel, there was no proof as warranted by law, to, suspend/curtail the tenure of the appellants. He has relied upon sections 26 * and 159 of the Ordinance. According to the learned counsel, the appellants had the vested right to complete their term of five years. At any rate, it could not be curtailed under the given facts and circumstances of this case. He has drawn our attention to section 159 of the Ordinance to submit that in case of serious allegations against Local Councils, they could be suspended for a period of to months only and certainly not beyond that. It has been brought to our notice that there were no provisions in the Ordinance, under which the whole system of Local Bodies could be ended in an arbitrary manner. Ch. Muhammad Farooq, Advocate appearing on behalf of Muhammad Ashraf Jaura, applicant in C.M.A. 347 of 1996 for impleading him as appellant in Civil Appeal No. 1254/96 has also argued with our permission that the expression "curtailment" has been 'defined in Black's Law Dictionary to state that curtailment does not mean to abolish. The definition as contained in the above is as follows:-- Curtail".--To cut of the end or any part of, hence to shorten, abridge, diminish, lessen, or reduce; and term has no such meaning as abolish." We did not pass any order one way or the other on the aforesaid application of Ch. Muhammad Farooq for his client to become party in these proceedings as it was not considered to be appropriate. 4. Mian Abdul Sattar Najam, the Advocate-General Punjab while forcefully refuting the arguments of the counsel for the appellants had submitted that the appellants were involved in the embezzlement of public funds at a very large scale. He states that several criminal cases have been registered against them for misappropriation of public money. To support his plea, he has read before us several documents to show that the appellants were guilty of corruption. On this basis, he argues that the appellants were not entitled to be reinstated in their offices because of their massive irregularities/embezzlement/corruption. Learned Law Officer has also extensively quoted from the Holy Qur'an to demonstrate that impugned action on the part of Government was justified. He relied upon:- Allah doth command you To render back your Trusts To those to whom they are due And when ye judge Between man and man, That ye judge with justice: Verily how excellent Is the teaching which He giveth you! For Allah is He Who heareth And seeth all things. (S IV. 58). Contend not on behalf Of such as betray Their own souls: For Allah loveth not One given to perfidy And crime. (S IV. 107). The (selfish) soul of the other Led him to the murder Of his brother: he murdered Him, and became (himself) One of the lost ones. (S. V. 33). O ye that believe! Betray not the trust Of Allah and the Apostle, Nor misappropriate knowingly Things entrusted to you. (S. VIII. 27). And O my People: Give Just measure and weight, Nor withhold from the people The things that are their due: Commit not evil in the land With intent to do mischief. (S.XI. 85). Verily Allah will defend (From ill) those-who believe: Verily, Allah loveth not Any that is a traitor To faith, or shows ingratitude. (S.XXII. 38). Who make mischief in the land, And mend not (their ways). (S.XXVI. 152). Then, is it To be expected of you, If ye will do no mischief In the land, and break Your ties of kith and kin? (S.XLVII.22). Such are the men Whom Allah has cursed For He has made them Deaf and blinded their sight. And do not eat up Your property among yourselves For vanities, nor use it As bait for the judges, With intent that ye may Eat up wrongfully and knowingly A little of (other) people's property (S.AI- Baqara, V. 188).
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In this background of Holy Injunctions as mentioned above, the Government was justified to curtail the tenure of the appellants on the basis of their misdeeds. He has heavily relied upon the observations of the learned Single Judge which were upheld by the Division Bench holding that the appellants were not fit to remain in their offices because of the serious allegations having been levelled against them. These observations are as follows:-- "Specific case was set up by the Government that to obviate further misuse of funds; resources and powers and to avoid interference in the general election, in the interest of the greater public good, the period had been curtailed vide the impugned notification. Though the Election Authority could have proceeded against the individual councillors for breach of the provisions of section 21-A and Rules 19 and 20 referred to above and the Government could have taken action against individual local councils under section 159 of the Ordinance but in view of the large number of local councils and the councillors and office-bearers, head of the general elections and also from the very nature of the Government i.e. Care-taker, it would have been impossible for the Election Authority or the Government to deal with breaches and delinquencies. The Administration would have been rather swa mped as claimed by the respondent Government. The stand of the Government that it was in the larger public good that the period was curtailed so that .The elections could be free, fair and transparent without any interference from local councils/Councillors seems to be correct. However, the contradiction is the situation created by section 21-A of the Ordinance, Rules 19 and 20 of the Conduct Rules and the proviso to the main section is a matter for the Legislature to consider. I have, therefore, no hesitation in concluding that the good of the public rather greater good of the public demanded that the sitting councillors be removed from the scene. " Learned Law Officer has brought to our notice that the appellants have also instituted writ petitions in the nature of Quo Warranto in the High Court for obtaining the relief which is being sought through these appeals from this Court. He prays for dismissal of these appeals because they could not be permitted to continue during the pendency of these petitions before the High Court. Mr. Maqbool Illahi Malik, learned counsel has, nevertheless, stated that the appellants had moved application for withdrawal of the writ petitions having been instituted by them in the High Court. All such petitions may, therefore, be deemed to have been withdrawn in view of his statement before the Court. 5. After hearing the learned counsel for the parties on a number of days I and perusing the record, we have come to the conclusion that the impugned, conditional judgment of the High Court was not sustainable. The judgment of the learned Single Judge was to the effect that if by a particular date, the elections were not held, the local bodies would stand revived. This view was upheld by the Division Bench. The respondent, Government appeared to have been fully satisfied with the judgment of the High Court. This being the reason, they did not further assail the validity of the impugned judgment before this Court. According to the notification dated 15th of August 1993, the elections were to be held in the month of January 1994 which were not held for no plausible reasons. No schedule in that behalf to hold elections was given by the competent authority. The target period, ended without holding the elections. In our view, the local bodies stood automatically revived without attaching any conditions after the specified period. It may also be noted that under section 26-A of the Ordinance, life of the local bodies was curtailed with an object to hold free, fair and transparent general elections in the country by the then care-taker Government. To achieve this object, the local bodies would, of course, be deemed to have been suspended for a short while and certainly not or. Permanent basis. In our view, this was done for a limited period in order to disable/ incapacitate the local bodies to interfere with the outcome of the general elections. We, therefore, hold the view that power under section 26-A of the Ordinance could only be used for a limited period to achieve the specific objective of holding fair elections as was the position which prevailed in this case. The said objective was, undoubtedly, achieved by the care-taker
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Government by holding fair and just election. Meaning of word "curtail" as given in the Balck's Law Dictionary and already quoted above shall not mean to abolish. "Abolish" means as given in "Dictionary MacMillan-William D. Halsey" in the following manner "to put an end to; do away with completely; to abolish poverty (french aboliss a stem of abolir, from Latin abolere to destroy) abolishable, adj. Abolisher, abolishment, n. Syn. Abolish, annihilate, exterminate refer to making an end of something. Abolish applies more to human usages, as laws, traditions, customs and ideas, than to physical things: Slavery was abolished in the British Empire in 1807. Annihilate indicates the complete destruction of the object of the verb; it means to wipe out beyond hope of being revived: One cannot really conceive of the human rare- being annihilated. Exterminate also indicates complete destruction, but is usdally used of things considered to be bad: They succeeded in their effort to exterminate the termites." (Dictionary Macmillan, William D. Halsey/Editorial Director, Macmillan Publishing Co., Inc., New York, Collier Macmillan Publishers, London). This will clearly show that the "local bodies" as elected on 28-12-1991 by the people of the Province of Punjab could not be ended as a whole by one stroke of pen in the fashion it had been done without giving any valid reasons. After the said exercise of general elections was over the local bodies should have been revived by issuing another notification to meet the ends of justice. This was not done nor fresh elections as stated above, were held for no reasons at all. This could not be so held by the High Court although the revival of the local bodies was announced conditionally on the plea of allegations of corruption. The appellants were duly elected by the electorate on the basis of adult franchise in a fair and transparent election for a fixed term of five years. The…
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