P L D 1957 (W (PLP)

KAYANI, J.‑

This petition is by certain residents of the Bhera Municipality questioning the action of Government in "restoring" the committee which had been superseded under section 238 (1), Municipal Act, and praying for a direction that the committee should not function without a fresh election. Section 238, Municipal Act, may be reproduced for a proper appreciation of its contents:

238. (1) Should a committee be incompetent to perform, or persistently make default in the performance of, the duties imposed on it by or under this or any other Act, or exceed or abuse its powers, the local Government may, by notification, in which the reasons for the doing shall be stated, declare the committee to be superseded. (2) When a committee is so superseded, the following consequences shall ensue :‑ (a) All members of the committee shall, from the date of the notification, vacate their seats. (b) All powers and duties of the committee may until the committee is reconstituted, be exercised and performed by such person as the local Government may appoint in that behalf. (e) All property vested in the committee shall, until the committee is reconstituted, vest in His Majesty. (2) The Government may, if it shall think fit, at any time constitute another committee in the place of any committee superseded under this section. The first consequence of supersession is that the members "vacate" their seats. Can they reoccupy seats, as though they had vacated them at pleasure? Other provisions of the Act show that whenever a seat is vacated or becomes "vacant", it is filled by a fresh election or appointment, and that the same person does not re‑occupy it, unless he is returned to it by a fresh order of appointment or a fresh election, Thus section 14, clause (c) says that Government may direct that a seat "which is then filled by election shall thenceforward, when vacant, be filled by appointment" and clause (d) provides for a converse case, where a seat was originally filled by appointment and the Government directs that it shall be filled by election, "When vacant". Under clause (e), Govern ment may direct that the seat of a specified member "shall be vacated on a given date", and section 17 (2) provides for the "filling" of such vacancy either by election or by appointment. Under section 15, if a member resigns and his resignation is accepted, he "shall be deemed to have vacated his seat", and "a new member shall be elected" under section 17 (1) "to fill his place". There is thus no doubt that upon the supersession of a committee its members cease to be members, and there is no apparent power in section 238 to restore them to life. It, R therefore, the Government "restore" the committee, there will be no members to constitute it. Thus on the language of ‑subsection (2), clause (a), the effect of supersession is that a committee, once superseded, is dead, and it can be reconstituted only as a result of fresh elections. But other parts of section 238 create doubts, and it was for that reason that we attended to clause (a) first. These doubts arise out of a comparison of the language of clause (b) with subsection (3). Clause (b) says that "until the committee is reconstituted", its powers will be exercised by such person as the Commissioner may appoint‑commonly called an administrator. Subsection (3) gives power to the Government " at any time to constitute another committee". One might think that while under clause (b) the same committee is reconstituted, under subsection (3) a new committee is constituted. That subsection (3) refers to a new committee is not a matter for doubt. But whether "reconstitution" means just "fresh constitution" or "constitution afresh of the same committee" is not so clear. The Act uses the word "constitution" both in respect .of municipalities and com mittees. Chapter II of the Act, which comprises sections 4 to 10, is entitled "Constitution of Municipalities". Section 4 says that the Government may propose any local area, by notification, to be a municipality and invite objections. After the objections have been considered and disposed of, Govern ment may, by notification, "declare the local area to be, for the purposes of this Act, a municipality of the first or second class". Thus is a municipality "constituted". Chapter III, beginning with section 11, deals with the "Constitution of Committees". By section 11, "there shall be established for each municipality a committee having authority over the municipality" and consisting of not less than five members. Thus the municipality is the area while the committee is the governing body exercising authority in that area. By section 12, every committee shall consist of members appointed by Government or elected by the people, or partly of the one and partly of the other. This is how a committee is cons tituted, and we do not find that the word is used in any special sense, whether in the one case or in the other. The phrase "until the committee is reconstituted" can therefore mean "until the governing body has started functioning again" not necessarily consisting of the old members. And this meaning alone should be placed on it in view of the fact that under clause (a) the effect of supersession is that the members vacate their seats and become non‑existent. Counsel for the petitioner relies on a Full Bench case, Sh. Muhammad Arif v. Administrator, Lahore Municipality (A I R 1939 Lah. 369), and although this is not an altogether opposite case, it contains some passages which support his argument. The question in that case was whether the Administrator's term ends with the term of the committee, and the answer was in the negative. The argument apparently dwelt on the difference between "the reconstitution of the committee" and the constitution of another committee, the latter event occurring after three years. It was repelled, however, by pointing out that although three years had passed, the Government had not constituted another committee: Subsection (3) allowed Government to constitute another committee "at any time", whether before or after the expiry of three years. The effect of the vacation of seats, in their 'Lordships' opinion, was to make the members non‑existent, and no committee can exist without members. The effect of subsection (3) was that "another committee" was to be constituted for the superseded committee. Reference was made to a Madras case, Mahamahopadvava Rangachariar v. The Municipal Council of Kumbakonam (I L R 29 Mad. 539) where in construing the corresponding section of the Madras District Municipalities Act, 1884, (section 41) it was held that the supersession of a municipal council is only a suspension for a limited period. The Madras Act, however, limits supersession to supersession for a fixed term. Incidentally, section 41 of the Madras Act employs language which makes the meaning of the word "reconstituted" very clear in that context. "The Governor‑in‑Council may, by notification, direct that the Council be dissolved and re constituted immediately". If "reconstituted" implied that the old members were to function again, there would be no sense in dissolving the Council and reconstituting it immediately. Mr. Mahmud, who appeared for the Government, conceded that the members, having vacated their seats, could not reoccupy them, and he did not lay any store by the word "reconstituted". He contended, however, (1) that the supersession order was itself invalid inasmuch as it did not state the reasons for which the committee had been super seded, and (2) that under section 19, General Clauses Act, Government could rescind the order of supersession. As to the first argument, the reason is sufficiently stated for the purpose of section 238 when the order says that the committee has persistently made default in the performance of the duties imposed on it. This is apart from the fact that we will not encourage inconsistency in the conduct of Government. As to the second argument, the Government can please itself by rescinding the order of supersession, but section 238 (2) (a) has already taken effect and the members do not exist. We accept the petition with costs and direct the old members not to function and the Government to constitute another committee by holding a fresh election, if it choose to terminate the administrator's rule. A.H. Petition accepted.