1992 PLP 1800 (MLD)

MUHAMMAD HUSSAIN ADIL KHATRI, J.‑‑‑The petitioner has challenged Notification date 5‑8‑1991, whereby, District Council, Shikarpur was superseded with immediate effect and respondent No.2 was appointed as its Administrator. The petitioner was elected as Chairman and notified as such by Notification, dated 3‑1‑1988, published in the Sindh Government Gazette of 15‑5‑1988. On 23‑9‑1990, a show‑cause notice alleging commission' of irregularities in the Council was issued, requiring the said Council to explain as to why it should not be superseded. The aforesaid show‑cause notice was assailed in C.P. No.D‑36/1990. However, the petition was dismissed by order, dated 5‑12‑1990. The aforesaid show‑cause notice was withdrawn by respondent No.1. Deputy Commissioner, Shikarpur by his letter dated 4‑5‑1991, directed the petitioner to hand over the charge of the District Council Shikarpur to him as he was informed on the said date by the Section Officer, Local Government of Sindh that District Council Shikarpur had been dissolved with immediate effect and the said Deputy Commissioner had been appointed as Administrator thereof. Two days later, i.e. on 6‑5‑1991 another Notification was issued by respondent No.1, whereby, Notification dated 4‑5‑1991 superseding the said council was withdrawn. On 5‑8‑1991, yet another Notification was issued and once again the said council was superseded with immediate effect and respondent No.2.was appointed as its Administrator. It is the case of the petitioner that the above steps have been taken with mala fide intention to harass and victimise the petitioner, in violation of the mandatory law. On 4‑12‑1991 and 10‑12‑1991., we have heard the arguments of Mr. Sabihuddin Ahmed, Advocate for the petitioner. Syed Sarfaraz Ahmed, learned Addl. Advocate‑General, Sindh, however, on 10‑12‑1991, requested for adjournment to seek further instructions. Such request was granted and the matter was adjourned to today's date. Today, Mr. Abdul Ghafoor Mangi, Addl. Advocate‑General Sindh was present when the matter was taken up and stated that he would convey to Syed Sarfaraz Ahmed, A.A.‑G. that the matter has been taken up by the Court for hearing. Further, arguments of learned Advocate for the petitioner were heard but, however, none appeared for the respondents. Learned counsel for the petitioner has placed reliance on sections 56, 57 and 58 of the Sindh Local Government Ordinance (Sindh Ordinance X11 of 1979) and has contended that the respondent No.1 had neither issued any show‑cause notice nor any inquiry was conducted, nor any opportunity of hearing was given to the petitioner or the council before passing the order of suspension of the Local Council and as such the impugned Notification is without any lawful authority. Section 56 of the said Ordinance provides that the Government may suo moto or on application made to it by any person, cause an inquiry to be made by such officer or authority as may be appointed by it in this behalf, into the affairs of a council generally, or into any particular matter concerning that council and take such remedial measures as may be warranted by the findings of such inquiry. Section 57 provides that if after such inquiry as may be necessary Government is satisfied that a council is not able to run a particular department or institution efficiently it may, by Notification in the official Gazette, suspend the authority of the council ever such department or institution for such period as may be specified in the order and where the authority of a council is suspended under subsection (1), Government may, itself, take over the management of such department or institution or make such other arrangements as it thinks fit. Section 58, which is specifically applicable to the circumstances of this case, provides that if after such inquiry as may be necessary, the Government is of the opinion that a council (a) is unable to discharge or persistently fails in discharging its duties; or (b) is unable to administer its affairs or meet its financial obligations; otherwise exceeds on abuses its powers the Government may after considering the objection from the council, by Notification in the official Gazette, declare the council to be superseded for a period not exceeding six months. As has been noted above, no inquiry whatsoever was made into the affairs of the council nor any allegations in any form whatsoever were ever communicated to the petitioner or the council, pertaining to the inability of the council in discharge of its duties or the inability of the council to administer its affairs or to meet the financial obligations or otherwise any allegation regarding abuse of powers by the council. It is further noted that the Notification has not suspended the council for a specific period as required under section 57 of the Ordinance. Learned counsel for the petitioner has relied on the case of Hamzo Khan v. Government of Sindh and 2 others 1990 CLC 954 wherein a Division Bench of this Court considered the aforesaid provisions of the Ordinance and observed that the proviso to subsection (1) of section 58 clearly indicates that before taking any action under section 58, an inquiry, is to be held and the council was entitled to have an opportunity to meet the allegations regarding its inability to discharge or that it had persistently failed to discharge its duties or that it was unable to administer its affairs or meet its financial obligations or otherwise had exceeded or abused its powers. It was further observed that action under section 58 cannot be taken for dissolution of a council in the absence of holding an inquiry on the above questions and an inquiry cannot be held without providing an opportunity to the council. An action of supersession under the above circumstances was held to be without lawful authority. The same question was considered by another Division Bencb of this Court in the case of Haji Muhammad v. Government of Sindh, Local Government and another 1991 MLD 2584, wherein the learned Judge referred to the case of S. Aijaz Hussain Sherazi and 28 others v. Secretary, Local Government & Rural Development Department, Lahore 1990 CLC 230 and an unreported judgment given by a Division Bench of this Court in C.P. D‑1421 of 1990 and observed that the supersession of the council without following the provisions as contained in sections 56, 57 and 58 of the Ordinance, being in violation of law and principles of natural justice, cannot be sustained. We are in respectful agreement with the view expressed in the', aforesaid authorities and accordingly hold that the Notification dated 5‑8‑1991, passed by the respondent No.1 is without any lawful authority. The petition is accordingly allowed with costs to the petitioner. A.A./G‑291/K Petition accepted.