2004 PLP 899 (YLR)

11. Heard. Record perused. Nazar Muhammad Gondal in his earlier writ petition mainly challenged the no-confidence motion on the ground that clear three days' notice was not given in terms of subsection (2) of section

24. The record shows that recall motion was signed on 12-8-2003, received by respondent No.4 on 13-8-2003 at 9-00 a.m. special meeting of House was called for 16-8-2003 at 11-00 a.m., the three days' notice as contemplated by subsection (2) of section 24 of the Ordinance was complied with as it was put up before the House after three days and two hours. 1997 SCMR 264 referred by petitioner is not applicable to, the facts of this case. One month's time was given by the Court in said case and the day on which order was passed was excluded. In the case in hand minimum 3 days and maximum 7 days' period is prescribed in section 24 itself which was complete at 9-00 a.m. on 16-8-2003. Similarly citations from Indian jurisdiction referred by him are not attracted to the facts of this case. No prejudice has been caused to petitioner as it would be merely an irregularity as laid down in Ch. Sadiq Ali v. Collector, Gujranwala and others (PLD 1964 (W.P.) Lahore 255), therefore, there is no violation of section 24(2) of the Ordinance.

12. Khawaja Ahmad Hassan has vehemently relied upon the speech of Malik Shahzad Azam in the House, secondor of the motion wherein he expressed that the move has been procured under pressure but at the same time he has not withdrawn hip signatures on the said recall motion. He has not made any application for this purpose. He has not disowned his signature. If he was under pressure at the time he put his signatures he could announce its withdrawal but he has not done so. He is also petitioner No.21 in Writ Petition 11386 of 2003 subsequently filed by Mian Muhammad Rashid Iqbal and 29 others against Khawaja Ahmad Hassan wherein he supported the contents of the motion and prayed for modification of the order, dated 22-8-2003 passed by this Court in the instant writ petition. The conduct of Malik Shahzad Azam shows that instant writ petition. The conduct of Malik Shahzad Azam shows that he is playing a double role, at initial stage supported the motion and in the House raised certain objections against it and subsequently by becoming co-petitioner with Mian Muhammad Rashid Iqbal negated contents of his earlier speech made in the House. On the basis of mere speech of Malik Shahzad Azam the motion cannot be said to have been carried out under coercion or duress, or in a mala fide manner. The aforesaid thirty petitioners are against Khawaja Ahmad Hassan. He does not enjoy the confidence of the majority. In a democratic set-up the head of the Institution can only continue to hold the office and transact the business so long he enjoys the support of majority in the House. In the absence of majority's support it is not possible for him to function as Nazim. Section 63 which deals with internal removal of Town Nazim reads as under:-- "

63. Internal recall of a Tehsil Nazim.- (1) If in the opinion of a member of the Tehsil Council, there is reason to believe that the Tehsil Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity to improve governance and the delivery. or services, he may, seconded by another member of the Council give a notice to move a motion in the Tehsil Council through Naib Tehsil Nazim for recall of Tehsh Nazim. (2) On receipt of notice referred to in subsection (1), the Naib Tehsil Nazim shall summon a session of the Tehsil Council not earlier than three days but not later than seven days, if the Tehsil Council is not already in session. (3) Where the Tehsil Council is already in sessions, the motion referred to in subsection (1) shall be taken up for deliberations on the next day from its receipt by the Naib Tehsil Nazim. (4) If the motion referred to in subsection (1) is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the Tehsil. (5) Where the motion is approved by simple majority of the members of Union Councils of the Tehsil present and voting, the Tehsil Nazim shall cease to hold office from the date of notification to be issued in this behalf by the Election Authority. (6) Where the motion fails in the Tehsil Council, the proposer and seconder of such motion shall lose their seats both as Union Nazims and members of Tehsil Council. (7) The Tehsil Nazim shall have the right to appear before the Tehsil Council and address it in his defence. (8) No motion for recall of Tehsil Nazim shall be moved during the first 'six months of assumption of office of Tehsil Nazim nor shall such motion be repeated before the expiry of one year from the rejection of previous motion. The provision relating to Tehsit Nazim apply to the Towns under section 51 of the Ordinance. Majority of the members of the Council are against the petitioner and motion of recall was carried in the House, as such, the first phase has been successfully completed against him."

13. The allegation of mala fide on the basis of speech of Malik Shahzad Azam in the House and the other assertions made in these petitions cannot be examined under Article 199 of the Constitution as they need factual inquiry in the disputed facts per law laid down in the Federation of Pakistan through the Secretary, Establishment Division v. Saeed Ahmad Khan and others (PLD 1974 Supreme Court 151) the relevant observations are as under:-- "Mala fides is one, of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there, to start with a presumption of regularity with regard to all official acts, and until that presumption is rebutted the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, mala fides must be pleaded with particularity and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any inquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving inquiry into the files of the Government for the purposes of fishing out some kind of a case. "Mala fides" literally means `in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala. fide to show that the person responsible for taking the action has been motivated by anyone of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala, fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterized as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorized by the law but for the personal aggrandizement of the person empowered with the power to make the order of acquisition, or because the person so authorized to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. Similarly, if the acquisition of the land or the taking over of industries is authorized in certain specified circumstances and for certain specified purposes, then the taking of action in such a case for purposes not so specified or in circumstances not proved for by the law would amount to colourable exercise of power or a fraud upon the law. In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession. It is true that in the case .of Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 323 it had been pointed out that in the case of a detention of a person the initial onus is on the detaining authority to prove that detention was lawful but this principle does not apply in other cases where the onus is initially upon the person alleging mala fides to prove mala fides. It would be wrong, therefore, in such cases to call upon the Authority to produce evidence in its possession to justify its action merely on the basis of a vague allegation that the action has been taken mala fide. In such cases the party making the allegation should first be called upon to adduce proof and after he has led evidence to make out a prima facie case then and only then should the other side against whom the allegation of mala fides is made be called upon to justify the action. If the Courts keep this in view, we venture to think that the difficulties to which the learned counsel appearing on behalf of the Governments have referred will not arise. In this connection we may also refer to the observations of this Court in the case of Lt.-Col. Farzand Ali v. Province of West Pakistan PLD 1970 SC 98, where the question arose as to whether compulsory retirement of an officer was mala fide. This Court observed as follows:-- "In the present case from the material that have been placed before us, all that can be said is that the functionaries responsible for deciding the question of the retirement of the appellant in Civil Appeal No.100 of 1966 may have made a wrong judgment but there is nothing before us which would lead us to the inference that the action was necessarily mala fide or the result of any conspiracy. There is no allegation that anyone in particular was ill-disposed towards him or had any special personal reason for getting rid of him. Nor did he state as to what was the nature of the conspiracy against him or who were the alleged conspirators. A general allegation of hostility against all senior officers from even before partition was not sufficient to establish mala fides of those who were ultimately responsible for the decision to compulsorily retire him. Mala fides have to be alleged with particularity and a mere assertion of a general malice cannot be sufficient for this purpose." The Honourable Supreme Court reiterated this view in the case of Fauji Foundation (PLD 1983 Supreme Court 457) Mian Ziauddin (1985 SCMR 365). There is no dispute that when an action is mala fide, without jurisdiction or coram non judice same is nullity in the eyes of law and is to be struck down whenever brought into the notice of the Court the judgments cited by the learned counsel for the petitioners in support of said proposition of law need no comments as in the instant petitions petitioners failed to prove mala fide or pressure exercised by Provincial or the City Government. Mala fide is not proved by any undisputed material on the record and factual inquiry in disputed facts cannot be undergone under the Constitutional jurisdiction as observed by the Honourable Supreme Court in the judgments referred above. In these circumstances, the citations relied upon by the petitioners are of no help to them. The contention that no-confidence motion was manoeuvred under pressure and carried in mala fide manner in the circumstances has no merit.

14. The objection against the rules framed by the Government of Punjab on 1-9-2003 is devoid of any merit. Section 191 of the Ordinance reads as under. "

191. Rules.

(1) The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters specified in Part I of Fifth Schedule. (3) The rules made under subsec tion (1) shall be subject to previous publication in the official Gazette and shall meet the following considerations:-- (a) Consistency with democratic decentralization and subsidiarity; (b) enhancement of welfare of the people; (c) fairness and clarity; and (d) natural justice and due process of law." The Ordinance empowered the Government to frame the rules to carry out the purposes of the Ordinance. The rules have been framed in accordance to the Ordinance and no inconsistency has been pointed out during arguments, therefore, no valid objection can be raised against them. Punjab Election Authority is empowered by rules to conduct second phase or election and meanwhile to issue interim orders consistent with the spirit or parent law. The order of the Government and the Election Authority pursuance to rule 14(1)(2) is not repugnant to the Ordinance or any other law. The object of permitting them to adopt interim measures is to keep the atmosphere smooth and transparent for holding of fair election. Petitioners were elected by all the members of the Union Councils of Zila in case of Zila Nazim and members of Union Councils in case of Tehsil Nazim and members of Union Councils of Town in case of Town Nazim, therefore, they are entitled to vote for recall during second phase. The Ordinance and the rules have provided that during first phase if House shows no-confidence in the Nazim they have to make a move and if ii succeeds the matter is to be put up before the members of their respective constituencies to express their confidence or no-confidence. The explanation to section 24, subsection (4) of said section and subsection (4) of section 63 authorize the Election Authority for causing of voting of Zila Nazim, Tehsil Nazim, Town Nazim and the Union Nazim. The rules under a statute unless repugnant to the Constitution or inconsistent with parent law cannot be struck down in view of the law laid down by the Supreme Court in Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others (PLD 1997 Supreme Court 11). The relevant observations of the Supreme Court run as under:-- "

15. From the review of the above case law, it is evident that the Court is not at liberty to inquire into the motives or mala fide on the part of the Legislature, once a statute is competently made the Court is not entitled to question the wisdom or fairness of the Legislature. Nor the Court can refuse to enforce a law competently made on the ground that the result would be to nullify its own judgment. The latter proposition of law has been enunciated by this Court inter alia in the case of the State v. Zia-ur-Rehman (supra), Messrs Mamunkanjan Cotton Factory v. The Province of Punjab and others (supra) and Haji Ghulam Rasool and others v. The Government of Punjab (supra). In the above second case the Governor by issuing the Punjab Cotton Control (Validation of Levy of Fee) Ordinance, 1971, nullified the effect of the judgment of the erstwhile High Court of West Pakistan rendered in the case of Hakimuddin v. Chief Cotton Inspector (PLD 1960 Lahore 709), where it was held that the recovery of the cotton fee from the petitioner's ginning factory was ultra vires the West Pakistan Cotton (Control) Act, 1949. This Court upheld the above validation Ordinance. Whereas in the above second unreported judgment relating to Darbar of Hazrat Data Gunj Aakhsh, this Court upheld the Ordinance No. XVI of 1971 promulgated by the Governor of Punjab, the effect of which was that it had taken away the rights conferred upon the Majawaran by the judgment of this Court reported in PLD 1971 Supreme Court

376. It may also be pointed out that in the case of Piare Dusadh and others v. Emperor (supra) the Governor-General promulgated an Ordinance inter alia validating the convictions which were held illegal by the Federal Court of India. When the matter again brought before the Federal Court assailing the above validating Ordinance, it upheld the validity of the said Ordinance." The rules framed under the Statute could not go beyond and overreach Statute itself. The amendment in the rules in the aforesaid case was held to be directory and not mandatory. The rules under question were framed by the Competent Authority consistent with the Ordinance, therefore the objection of the petitioners is repelled.

15. The rules were framed on 1-9-200 and made applicable forthwith. Subsec tion (3), of section 191 of the Ordinance provides that the rules made under subsection (1) shall be subject to previous publication in the official Gazette and shall meet the following consideration:-- (a) Consistency with, democratic decentralization and subsidiarity; (b) enhancement of welfare of the people; (c) fairness and clarity; and (d) natural justice and due process of law. The rules could only be applies after their publication in the official Gazette. The cases were fixed in this Court on 3-9-2003 and action under rule 14(1)(2) was taken, the notifications suspended by this Court were withdrawn and fresh notifications were issued to debar the petitioners from functioning Nazims of their respective councils. The rules were published in the Official Gazette on 18-9-2003 and could not be applied prior to publication in the Official Gazette in view of subsection (3) of section 191 of the Ordinance, Mumtaz Hussain v. Chief Administration Auqaf (PLD 1976 Lahore 1511), Muhammad Suleman and 'other's v. Abdul Ghani (PLD 1978 Supreme Court 190), Ismail v. Member, Board of Revenue, Punjab, Lahore and 13 others (2000 YLR 295) and Messrs Nemat Flour Mills (Pvt.) Ltd. through Director and 6 others v. Government of the Punjab through Secretary, Local Government and Rural Development Department, Lahore and 3 others (2001 YLR 835). The issuance of notifications against the petitioners by the Punjab Election Authority and the Government in these circumstances are unlawful. All the petitions are disposed of in the terms indicated in the short order. H.B.T./A-994/L Order accordingly.