P L D 1958 (W (PLP)

RAHMAN, C. J.‑--The petitioner, Haji Rehan‑ud‑Din, was elect ed President of the Municipal Committee, Multan, in a regularly convened meeting of the Committee held on the 23rd of January 1956. His election was notified in the Gazette of West Pakistan, some time in February 1956 and he began to function as President of the Committee from that time. By a notification dated the 8th of January 1958, published in the Gazette of West Pakistan dated the 10th of January 1958, the Provincial Government removed the petitioner from his office of President, of the Muni cipal Committee. It was mentioned in the notification that certain complaints alleging abuse of powers had been made to Govern ment against Haji Rehan‑ud‑Din, that Government had verified the truth of those complaints from the records of the Municipality; and that they were satisfied that the charges against him were fully substantiated and called for his removal/ from the office of the Presidentship of Municipal Committee, Multan. It was further recited in the notification that Government had communi cated to the petitioner, by means of a registered letter, the reason for his proposed removal and had invited him to tender within twenty‑one days, an explanation as required by the proviso to section 22 of the Punjab Municipal Act, 1911, that he had tender ed his explanation accordingly, which was considered by Government and found to be unsatisfactory. The petitioner has challenged this notification as illegal and tainted with mala fides. It is averred that the facts of the case did not attract the provisions of section 22 of the Punjab Municipal Act, 1911, as adapted for West Pakistan, (hereinafter referred to as the Act) and that, in any case, the failure of Government to hold a proper inquiry into the allegations, after they had been repudiated by the peti tioner and the denial of an opportunity td the petitioner of showing cause against the proposed order, vitiated it. It was, therefore, prayed that a writ of mandamus or any other appropriate writ, direction or order may be issued to the Government of West Pakistan, through the Secretary, Social Welfare and Local Govern ment Department, restraining the respondent from interfering with his functions as President of the Municipal Committee, Multan, and calling upon it to withdraw the impugned notification concerning his removal. The petition was contested on behalf of the respondent.

2. It seems necessary to set out section 22 of the Punjab Municipal Act, 1911, under which Government purports to have acted in the present case. It runs as follows:‑ "Whenever a president or vice‑president vacates his seat or tenders in writing to the committee his resignation of his office, he shall vacate his office; and any president or vice‑president may be removed from office by the Provincial Government on the ground of abuse of his powers or of habitual failure to perform his duties or in pursuance of a resolution requesting his removal passed by two‑thirds of the members of the committee; Provided that before the Provincial Government notifies his removal, the reason for his proposed removal shall be communi cated to him, by means of a registered letter in which he shall be invited to tender within twenty‑one days, an explanation in writing and, if no such explanation is received in the office of the Secretary, Transferred Departments, within twenty‑one days of the despatch of the said registered letter, tide Provincial Government may proceed to notify his removal".

3. It appears that the Government first sent a notice to show cause against his removal to the petitioner, on the 6th of August 1957, through the Deputy Commissioner, Multan. Exception was taken to this procedure on behalf of the petitioner who pointed out that under section 22 of the Act, a registered letter had to be sent to the petitioner with a direction to submit a reply within twenty‑one days, instead of the fifteen days mentioned in the notice dated the 6th of August 1957. Government realised that they had made a mistake and rectified the position by issuing afresh show‑cause notice, by registered post, dated the 9th of January 1958, and permitted him to send his explanation within twenty‑one days, as required by the section.

4. The reply sent by the petitioner is contained in Annexure D/3, but it refers back to his earlier replies, namely, Annexures D/1 and D/2. These replies have to be read in the light of the charges framed against the petitioner, which are set out in Exh. A/1. The first charge related to postponement of certain meetings of the Committee called for fixed dates, which had been postponed under orders of the President. The charge attempted to make out that the President had acted contrary to law, in thus postponing the meetings without ascertaining the views of the Committee. The second charge accused him of employing a few of his favou rites in the Municipal Committee, by misuse of his emergency powers, conferred by section 35 of the Act, inasmuch as he had approved, by order, dated the 25th of June 1956, the appointment of Mistri Muhammad Umar as Head Mechanic of the Municipal Workshop at Rs. 150 per mensem in the grade of Rs. 100‑5‑150; by order dated the 20th of June 1956, he had appointed Dr. Muhammad Ibrahim Malik as Medical Officer for the Lahori Gate Municipal Dispensary at Rs. 250 in the grade of Rs. 250‑20 450‑25‑550; and he had appointed Dr. Muhammad Ibrahim Malik, Incharge Lahori Gate Dispensary, as Deputy Medical Superin tendent, Infectious Diseases Hospital, in addition to his own duties, at a special pay equal to 20 percent of his substantive pay. It was added that no emergency existed in the case of the above appointments and the refusal of the President to discuss these cases at the subsequent meetings of the Committee, in fact amounted to a denial of the members' rights and privileges, which he was not competent to suppress. The third charge maintained that the petitioner had not been giving appropriate rulings due to partisan considerations and had thus hindered the smooth working of the Committee.. The instances mentioned in this context were that at the meeting held on the 30th of October 1956, Sardar Abdul Jabbar Khan had put up the proposal that the post of Taxation Officer should be abolished, but the President had ruled that as the matter was under consideration of Government, no discussion on the subject could be permitted. Secondly, at the meeting held on the 30th October 1956, Mst. Hussain Bibi, a Lady Member of the Committee, had moved a resolution that a post of Educa tion Superintendent should be created for the supervision of schools, but the President had ruled that as the Deputy Commis sioner had suspended the resolution of the Committee regarding the withdrawal of powers from the District-Inspectress of Schools, the question of the creation of the post of an Education Superintendent, could not be considered by the Committee. By his conduct, it was alleged; the President had prevented the Committee from exercise of its right of expressing its opinion on the subject, which could later be considered by Government or any other competent authority for what it was worth. Then there followed vague and general charges to the effect that works were not execut ed according to any pre‑arranged plan, after determining priorities and in most cases they were executed to satisfy certain interests; that they were never executed in time in accordance with the terms of the agreements and conditions of the agreements and that in some cases, the President had acted under section 35, without any justification, and, therefore, the President had been flagrantly abusing his official position and acting in violation of approved procedure. In the penultimate portion of the charge‑sheet, it was stated that the President had been responsible for gross mis management and mal‑administration and the following instances were appended:‑ "(a) The recovery of tae house‑tax arrears, which now exceeds Rs. 15,00,000 is at a stand‑still and no steps appear to have been taken about it to realize this heavy amount. (b) Sanitation arrangements are most unsatisfactory in some, parts of the town. (c) The Municipal control over the erection and re‑erection of buildings is lax. During 1955‑56, ninety‑four cases were only disposed of, as against 406 reported cases, of unauthorised cons tructions. During 1956‑57, one hundred and sixty‑eight cases' were registered but only ten cases are reported to have been'' disposed of. Your inaction to decide the cases of unauthorised constructions promptly, has further encouraged this evil. (d) No vigorous steps appear to have been taken to demolish the dangerous buildings in the city of Multan. During 1955‑56, notices were issued in respect of 147 such buildings but action was taken in respect of 83 buildings only. In 1956‑57, notices were issued in cases of 75 buildings but compliance was reported in the cases of 16 buildings only. This shows your apathy towards human life. (e) No detailed record of movable and immovable property of the Municipal Committee has been prepared and this betrays lack of interest on your part, in safeguarding and protecting the interests of the Committee as its custodian. (f) Tehbazari and encroachments are on rapid increase with out consideration for the evils of congestion and vehicular traffic". In the last paragraph, it was asserted that the above charges were sufficient proof of the fact that the petitioner had lost his grip over the Municipal administration as a result of his mismanage ment, mat‑administration, partisan feelings and biased views, and all this rendered his continuance in office as undesirable and detri mental to the interest of the Committee.

5. It appears that Government had, after receipt of the written explanation of the petitioner in answer to the charges, sent the Inspector Local Bodies to make an inquiry on the spot. The inquiring officer visited Multan, looked at certain papers in the Municipal records, and submitted a report to Government. He apparently confined himself to the legal aspects of the first two charges, and commented upon them from that point of view with out offering any opinion on the points of fact involved. With regard to the remaining charges, he expressed the view that they could not have been substantiated personally against the President. This inquiry, we are satisfied, was of an ex pane nature. It is admitted that no notice about the visit of the inquiring officer was sent to the petitioner and though it is now claimed that a counsel appeared on behalf of the petitioner before the inquiring officer, no record showing that this was so, has been placed before us and the petitioner has denied that he had any knowledge of the inquiry being held. The position, therefore, is that the inquiry was more or less of a farce. It may be that someone from the Committee had appeared before the inquiring officer and he may have even made certain representations on behalf of the petitioner, presumably‑as his friend. We are not satisfied, however, that any notice was given to the petitioner, of the matters that the inquiring officer was going to look into or that 11e was afforded any opportunity of putting his own point of view before him.

6. With regard to the first charge it is enough to say that in a previous writ petition, filed by Haji Rahan‑ud‑Din and disposed of by, this Bench by order dated the 9th of January 1958, the position was clarified with regard to the powers of the President to postpone meetings. In this respect Government obviously A adopted an untenable position, on an erroneous view of the law. It was held by us that the President had ample powers to postpone a meeting without consulting the Committee and without going to the normal meeting place of the Committee the first charge, therefore, could not have formed the basis of any removal order under section 22 of the Act, as it was in fact without foundation. The mere postponement of meetings, without proving an improper motive for the postponement could in no sense be described as abuse of powers.

7. With regard to the second charge, it is pointed out by Mr. Nazir Ahmad Khan for the petitioner, that the latter's affidavit makes it clear that the persons said to have been appoint ed under the emergency powers of the President under section 35 of the Act, were not at all related to the petitioner and that he was in no sense interested in them. This question was not even inquired into by the Inspector Local Bodies when he visited Multan. There is no counter‑affidavit from the respondent's side indeed the affidavit of the petitioner has made serious allegations of mala fide and it was suggested in that affidavit that the Minister for Local Self Government was personally blased against the petitioner because of his relationship with certain other members of the Committee, who belonged to a group opposed to the petitioner. It was further stated in the affidavit that over tures had been made to the petitioner from time to time to join the Republican Party on pain of losing his Presidentship, but that he had declined to change his party affiliations and had been penalized for his loyalty to the Muslim League Party by his removal from the office of the President. Not the slightest effort has been made on behalf of the respondents to put it a written statement or a counter‑affidavit on these points. This is a regret table state of affairs and, in the circumstances; we are constrained to hold that the allegations made by the petitioner in his affidavit, cannot be brushed aside as without substance. It is with reference to this position of the case that Government action has to he judged. We must assume on the facts as revealed by the affidavit of the petitioner that he had no personal interest in the appointment of Muhammad Umar and Dr. Muhammad Ibrahim Malik to the posts mentioned above. At the most it could be said that the President exceeded his powers under section 35 of the Act by making permanent appointments instead of temporary ones and in not allowing discussion of these matters in subsequent meetings of the Committee. This erroneous view of his could not, however, be said to be actuated by any ulterior motive. He may have bona fide believed this to be the correct position and if he erred, he did so in distinguished company. It appears that the matter of appointment of Mistri Muhammad Umar as Read Mechanic, sent up to the Deputy Commissioner, Multan, and even he ruled that the Committee could not question the orders of the President. Assuming, therefore, that the petitioner had made a mistake in not allowing discussion over these appointments in subsequent meetings of the Committee and that the form of appointments was legally open to exception, it does not follow that there was necessarily any abuse of powers by the President, within the meaning of section 22 of the Act. It would be pedantic to expect of Presidents of Local Bodies to pass orders which would be immune from attack on any legal ground. They are after all laymen liable to make mistakes in legal matters. If such mistakes could be the criterion for removal of Presidents of Municipal Committees, probably not one in the whole Province would be found to be immune from action under section 22 of the Act. This could not have been the intention of the Legislature. The commission of a mistake of this kind simpliciter without any addi tional material to justify the finding of abuse of powers like partisanship, ulterior motives etc., could not be pressed into service for drastic action under this penalising section. Government has to be very chary of shaking public confidence in the administration of Local Bodies by condemning functionaries of such Bodies on the slightest provocation and thus deterring public spirited person, from coming forward to undertake the burden of civic responsi bilities. The gravamen of the second charge was the alleged partiality of the President for the appointees and it is conceded that in the face of the affidavit of the petitioner, this part of the charge could not be said to have been established. No material was in the possession of the Government to justify the finding that this charge was proved. In regard to the third charge there is intrinsic evidence in the statement of the charge itself justifying the opinion that it was of a frivolous character. Prima facie the reasons given be the President for disallowing discussion of the two matter in question, were sound and no reasonable person could take exception to the rulings of the President. By no stretch of interpretation the action of the President could be brought within the purview of "abuse of powers" in this behalf.

10. The remaining so‑called "charges"; which are of a general and vague character, if at all, amounted to a condemnation of the Committee as a whole and its functionaries including the Execu tive Officer, rather than of the President personally. The history of the mal‑administration of the Committee over the last so, many years seems to have been pressed into service for the purpose of making out as black a case against the President as the Government could possibly think of. This has created a very unfortu nate impression on our minds that the Government had failed to deal with the case in a responsible and fair manner and it is difficult to avoid the conclusion that the action taken against the President was not free from malafides.

11. It is interesting to note that although, even according to the inquiring officer deputed by the Government for the purpose of Verification of certain matters, only two of the charges merited attention from the legal point of view, the notification issued by Government, roundly alleged that all the charges had been "fully established" against the petitioner. This betrays an extreme lack of care and attention with regard to the facts of the case, on the part of the officer who drafted the notification and has given a handle to learned counsel for the petitioner for the argument that the Government was out to malign the petitioner by fair means or foul. It seems to us that not only the charges were not subs tantiated but in addition the petitioner was deprived of an oppor tunity to show that they were without substance.

12. Mr. Nasim Hasan Shah, who appeared for the respondent, attempted to argue that section 22 of the Act required only an opportunity to be given for the submission of an explanation in writing and did not prescribe an inquiry, even if allegations of fact charged against the President, were repudiated by him. It would, however, be against the principles of natural justice to allow power to Government to remove a person from presidentship o the Committee, on allegations of fact, which he had solemnly repudiated, without affording him an opportunity to establish his defence. Section 22, on the view contended, for by Mr. Nasim Hasan Shah, would tend to make this enactment an engine of oppression rather than of reform of local bodies. In our view it questions of fact are involved in charges which are challenged by the person concerned, it becomes the bouden duty of the Government to hold an inquiry into them, giving a fair opportunity to the person complained against, to offer his defence, if he is so advised and the necessity for such an inquiry would become doubly reinforced where circumstances exist suggesting bad faith.

13. The petition, therefore, succeeds and we allow it with costs. We direct that the notice issued by Government for removal of the petitioner from Presidentship of the Committee be forthwith withdrawn and he be allowed to function as President without further let or hindrance, unless he is removed by due process of law. A.H. Petition accepted.