P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Rana Sher Muhammad, resident of out side Delhi Gate, Multan City, contested the election to the Union Committee `4‑D' from Multan City, and the other candidate was Muhammad Jamil. Rana Sher Muhammad was declared elected and this election was not challenged by his opponent, Muhammad Jamil, nor by anyone else. Later on, Rana Sher Muhammad was elected Secretary of the Union Committee and took upon himself the duties of that office. Muhammad Jamil sent a complaint to the Collector. Multan District, who is the controlling authority for all the Basic Democracies in the District of Multan, wherein it was said that Rana Sher Muhammad could not have been elected a member of a Basic Democracy as he had not attained the age of 25 years on the 1st of January 1960‑tae qualification which is requisite because of para. 1 of Part 11 of the Second Schedule to the Basic Democracies Order (President's Order No. 18 of 1959) (to be referred to hereinafter as the Order). On the receipt of the complaint, the Collector, Multan, wrote to the Chairman of the Municipal Committee, Multan, to place the matter before a meeting of the Municipal Committee for their decision. Having met to consider the question, members of the Municipal Committee passed a resolution that Rana Sher Muhammad had not been competent to contest the election, and in coming to this conclusion they relied on the entry in a school leaving certificate relating to Rana Sher Muhammad. After the resolution of the Municipal Committee, Multan, the Collector passed an order removing Rana Sher Muhammad from membership, whereupon the latter has brought this writ petition with a view to having the order of the Collector made ineffectual and inoperative and impleaded the Collector, Multan District, Multan, the Chairman, Municipal Committee, Multan, and Muhammad Jamil as respondents Nos. 1, 2 and 3, respectively.

2. Of the respondents, only No. 2 contested the petition, the stand taken by him being that neither was the resolution passed by the Municipal Committee incompetent, nor was the order of the Collector, Multan, as the controlling authority for Basic Democracies, Multan, which was based on the above‑mentioned resolution, invalid.

3. Learned counsel for the petitioner urged that the question whether or not the petitioner was below the age of 25 years on the 1st of January 1960 could not have been referred to the Municipal Committee, Multan, and, therefore, the proceed ings of that body were invalid and that at any rate the finding of the Committee was wrong, with the result that the impugned order passed by the Collector, Multan was without any binding force. In this connection, learned counsel for the petitioner relied on the provisions contained in Article 25 of the Order, of which the relevant parts are clauses (2), (3) and (4) and the other four clauses do not deal with the matter under consideration. The three relevant clauses read as under: ‑ "(2) A member of a local council shall render himself liable to removal from membership‑‑ (a) if he incurs any of the disqualifications specified in Part 11 of the Second Schedule ; (b) if he, without reasonable excuse, absents himself from three consecutive meetings of any local council ; or (c) if he is guilty of an abuse of power or of any misconduct in the discharge of his duties as a member, or has been responsible for any loss or misapplication of any money or property of any local council, or any local body or other local authority." "(3) The Controlling Authority may, after such enquiry, if any, as may be considered necessary, remove any appointed member of a local council, who is liable to removal under this Article, from such membership Provided that no appointed member shall be removed with out consultation with, or without the previous approval in writing of, the authority in consultation with whom or with whose approval he was appointed under Article 21." "(4) An elected member of a local council shall not be removed from such membership unless, at a special meeting to be convened for the purpose In accordance with the rules made by competent authority, a resolution to the effect that he is liable to be removed under this Article is passed‑ (a) in the case of a member of a Union Council or a Town Committee, by a majority of the representative members of a Thana or Tahsil Council concerned (b) in the case of a member of a Union Committee, by a majority of the representative members of the municipal body or the Cantonment Board concerned ; and (c) in the case of a member who is the Chairman of a Union Council or a Town Committee, or of a Union Committee and is ex‑officio a member of a Thana or Tahsil Council, or of a municipal body or a Cantonment Board, by a majority of such members of the District Council concerned as are the Chairmen of the Union Councils, of the Town and Union Com mittees, and of the municipal bodies, in the District, and the vice‑Presidents of the Cantonment Boards therein ; and on the passing of such resolution, the member shall stand removed."

4. It was contended by learned counsel for the petitioner that the finding of the Municipal Committee with regard to the age of the petitioner being under 25 years on the 1st of January 160 could not be considered correct, because it was based merely on an entry In a school register. He cited a decision of this Court in Muhammad Nawaz Khan v. The Collector District Gujranwala and another (P L D 1960 Lah. 1123), wherein it was said that entries with regard to age in a school register could not be considered to be very reliable. It appears to me that if the Municipal Committee was competent to consider whether or not the petitioner could be removed from membership on the ground that he was under 25 years of age on the 1st of January 1960, the fact that the Com mittee accepted as conclusive a piece of evidence, which this Court would not have considered conclusive if the question of fact to be decided had come up before it, would not be sufficient for exercise of writ jurisdiction. It need hardly be emphasised that whether or not a fact is proved is for the Tribunal which is competent to decide that question to determine, and a Court empowered to issue a writ concerning the orders of the Tribunal cannot substitute' its own finding of fact for tire one given by the Special Tribunal. If, therefore, the Municipal Committee was competent to deal with the matter, its resolution will not become invalid on the ground that it had acted on evidence, which would not have been consider ed sufficient by this Court.

5. The next contention of learned counsel for the petitioner was that sub‑clause (a) of clause (2) of Article 25 of the Order, which was the only one of the three sub‑clauses which could possibly apply to the case, made It clear that the Article came into operation only if a member of a local council, which expression, in view of Article 3 (24) of the Order, means a member of any council constituted under the Order or a Town Committee or a Union Committee, could be removed if, after he had been elected or appointed, he happened to incur any of the disqualifications specified in Part II of the Second Schedule to the Order. He elaborated this argument by saying that Part 11 of the Second Schedule to the Order mace a distinction between qualifications of candidates for membership which are mentioned in paragraph 1 of Part 11 and disqualifications of candidates and members which are enumerated in paragraph 2 of Part 11 of the Secor:d Schedule to the Order and said that it was clear that the intention of the law maker was that clause (2) of Article 25 of the Order could only be invoked if a disqualification had supervened after a person had been elected a member. The clause confines itself to disqualifica tions specified in Part 11 of the Second Schedule to the Order, but it cannot be said that the disqualifications contemplated are merely those mentioned in paragraph 2 of Part II of the Second Schedule to the Order, because one finds that even paragraph 1 of Part II of the Second Schedule after mentioning what qualifications a person should nave for becoming a member goes on to say that he should also satisfy the condition that he is not subject to any of the disqualifications mentioned in paragraph 2 of Part I of the Second Schedule, which Part deals with qualifications of electors. The inference is that if a person has any of the disqualifications mentioned either in paragraph 2 of Part 1 or in paragraph 2 of Part 11 of the Second Schedule, he cannot become a candidate for membership. If a person cannot become a candidate, it is clear that he cannot become a member, with the result that clause (2) of Article 25 of the Order, which concerns itself with removal from membership, cannot apply to his case. It follows, therefore, that the contention of learned counsel for the petitioner that sub -clause (a) of clause (2) of Article 25 of the Order could be invoked only if a disqualification had been incurred after a person had been elected a member has force. Mr. Iftikharul Haq, learned counsel for respondent No. 2, sought to meet the above contention ref Mr. Fazal Ilahi, learned counsel for the petitioner, by relying on clause (3) of Article 25 of the Order, which, he contended, gave unlimited powers of removal of members to the Controlling Authorities, but he overlooked that the clause he invoked concerns itself with members who had been appointed and not with persons who had become members by means of election, and that even with regard to appointed members of local councils, it was made clear that they could not be removed unless one of the sub‑clauses of clause (2) of Article 25 could be made applicable to them. The contention of learned counsel for respondent No. 2 that the powers of a Controlling Authority to remove a person from membership were unlimited and could be invoked even if any of the sub‑clauses of clause (2) of Article 25 did not apply, is entirely untenable.

6. There is also another matter which may be noticed here. It will be seen that sub‑clause (a) of clause (2) of Article 25 of the Order is in the present tense. This would show that the intention was that the disqualification, which would justify action under clause (2) of Article 25 of the Order, must be one which had come into being after a person had become a member. This inference from the use of the words in the present tense in sub‑clause (a) of clause (2) of Article 25 becomes stronger when one considers the language used in sub‑clause (c) of the clause: A part of sub‑clause (c) applies where a member has been responsible for any loss or misapplication of any money or property of any local council or local body or other local authority. The expression "local body" has been defined by clause (23) of Article 3 of the Order to mean a body constituted under any law other than the Order, relating to local Government, and it Is, obvious that a Municipal Committee constituted under any Act which was in force prior to the Municipal Administration Ordinance, 1960, as well as a District Board or such other bodies would be included in the expression "local body". 1f I therefore, a person had caused loss to a municipal committee, be that committee constituted under a law which has been replaced by the Municipal Administration Ordinance, 1960 or one constituted under that Ordinance, action against him would appear to be possible. It is for this reason that the expression used is "has been responsible", which expression would apply even to things that had occurred in the past. Sub‑clause (b) of clause (2) of Article 25 is also worded in the present tense and from the matter it deals with it is clear that the sub‑clause can be invoked only if after becoming a member a person has been guilty of the omission mentioned in the sub‑clause. The difference in the phraseology employed in sub‑clauses (a) and (b) of clause (2) of Article 25 on the one band and sub‑clause (c) of that clause on the other would indicate clearly that clause (2), except in cases in which the last part of sub‑clause (c) was applicable, would come into play where the act or omission which results in creating disqualification occurred after a person became a member on election or appointment.

7. The contention of learned counsel for the petitioner that if a person was not qualified to be a member at the time he was declared to have been elected, the procedure laid down in clause (4) of Article 25 of the Order was not applicable to him, receives considerable support from the language employed in the above‑mentioned clause which has been reproduced to paragraph 3 of the Order. It will be noticed that the clause says that a member shall not stand removed from membership unless a resolution mentioned in the clause is passed. If the contention raised by learned counsel for the contesting respondent to the effect that even the case of a person who was not qualified to be a member could be referred to a meeting of the body mentioned in clause (4) were to be accepted, the result could be that though a person was not of the age of 25 at the time of his election or at that time suffered from any of the disqualifications mentioned in Part I and Part 1I of the Second Schedule to the Basic Democracies Order, 1959, be could not be removed if he could obtain a majority of the votes of the persons attending the meeting at which his case is considered. It is not possible for a Court of law to be easily persuaded in the absence of clear words to that effect to hold that the law‑maker intended to give a few persons the power to set at naught the provisions of Article 20 of the Order, which lay down the qualifications that a person should have at the time of his becoming a member.

8. Lest it should be supposed that I am laying down that if a person who was not qualified to be a member or was dis qualified from being one has become a member by election or appointment, he cannot be removed from membership., I want to make it clear that my view is that if a person was not qualified to be a member but had been elected or appointed a member, his election or appointment, as the case may be, would be void from the beginning and would have no legal effect. In a case like that it would be open to the Controlling Authority to give a finding that the person was not a member and direct him not to act as one. Other remedies also would be open. A person Interested in the matter could have it declared by a Civil Court of competent jurisdiction that a certain person was not a member, because at the time he was elected or appointed as one he was not qualified to be a member or was disqualified from being one. I will presently show that the above courses would not be unavailable in West Pakistan regarding persons who had been elected on the ground that Rule 55 of the West Pakistan Basic Democracies Election Rules, 1959 (to be referred to hereinafter as the Rules), which on being made by the Governor of the Province under clause (1) of Article 72 and clause (2) of Article 89 of the Order appeared in an extraordinary issue of the Gazette of the West Pakistan Government on the 13th of November, 1959 as Notification No. PEA‑59/940‑ER, was to the effect that an election could not be called in question except by an election petition presented in accordance with the rules. The Rules were made in exercise of the powers conferred by the Basic Democracies Order, 1959, and could not on general principles contain a provision which would go counter to a provision contained in the Order from which the power to make them was derived. Under rule 59 of the Rules there is provision that the election of a returned candidate may be challenged in an election petition on the grounds, amongst some others, that his nomination was invalid or that on the nomination day he was not qualified for or was disqualified from being elected from the ward from which he was elected, but that cannot make any difference, because there is nothing to prevent the Governor from removing the provi sion from the Rules. Moreover, under Rule 55 an election petition has to be presented within thirty days next after the declaration of the result. If it were to be held that the membership of a person, who was declared to have been elected, cannot be challenged by any means other than an election petition, this would amount to holding that the fraud which a person had practised say by concealing something which debarred him from being a candidate or member gets condoned if an election petition is not presented in time and it is clear that this could not be the law. If a person was not qualified to be a member or was disqualified from being one from the beginning, the case stands on a footing different from the one of a person whose election is bad‑in‑law not for the reason that he could not have taken part in the election at all but because what happened at the election made it invalid. With regard to the latter person, the only remedy under the rules would be the making of an election petition, but in the case of the former person I am of the view that an election petition mentioned in Rule 55 of the Rules is not the only remedy. If one were to hold that an election petition was the only means by which the election of a person to a local council can be challenged; one would be holding that the Rules had amended the Basic Democracies Order, 1959, to this extent that a person who under the provisions of the Order was not qualified to be a member or was disqualified from being one became cured of his shortcoming if an election petition to challenge his election is not presented within the time fixed for the presentation of the election petition. This implied amendment of the provisions of the Order could not be effected by rules made in exercise of the power conferred by the Order itself but also because Article 6 of the Order is to the effect that if any provision of any other law relating to local Government comes in conflict with any provision of the Order, the provision of the Order was to prevail. I might mention here that the view that a person who had been appointed a member, though he was not qualified to be one or was disqualified from being one, could be removed by the Controlling Authority from membership without invoking clause (2) of Article 25 of the Order was taken by me sitting in a Division Bench with my learned brother Anwar ul‑Haq in Writ Petition No. 93 of 1961; Nazir Husain Shah v. The Election Controlling Authority (Collector) Multan which was disposed of on the 19th October 1961.

9. For the reasons that I have given above, I hold that the matter concerning the petitioner being under 25 years of age at the date relevant for his election as a member could not have gone before the Municipal Committee under clause (4) of Article 25 of the Order, with the result that their resolution was without any binding force. The order of the Collector, Multan, who was the Controlling Authority was passed against the petitioner simply because the Municipal Committee had passed a resolution against him and the Collector had not independently given his own finding. That being so, the order of the Collector, which indeed is the only operative order, must be held to be ineffectual and void. I would, therefore, issue a writ of certiorari certifying that the impugned order of the Collector, Multan, offended against law and was, therefore, of no validity, and would grant the petitioner costs of his petition. A. H. Writ granted.