1983 PLP 455 (SCMR)

ASLAM RIAZ HUSSAIN, ACTG. C. J.‑Muhammad Sharif petitioner seeks Leave of Appeal against the order of the Lahore High Court (Bahawalpur Bench), dated 21‑11‑1982, accounting the respondents' writ petition.

2. The facts, briefly, are that in the local bodies elections, held on 25‑9‑1979, Muhammad Umar respondent No. 1, got elected as Member of the Town Committee, Liaqatpur from Ward No. 4, while Syed Baqir Hussain Shah respondent No. 2, got elected from Ward No. 5, applications under section 29 of the Punjab Local Government Ordinance, 1979, were filed against their election before the Commissioner, Bahawalpur, who accepted the same vide order dated 10‑12‑1981, on two grounds namely that they were members of the P. P. P. and secondly that they were guilty of miscon duct inasmuch as they had encourged and allowed encroachment on land belonging to the Municipal Committee by illegally permitting unauthorised persons to build houses on it. The result was that both of them were unseated, Feeling aggrieved respondent No. 1 filed a writ petition before the High Court which was accepted by the impugned order setting aside order of the Commis sioner, on the ground that section 29 provided only disqualification incurred after the election. As for the allegation of 'misconduct' it was observed by the learned Judges of the High Court that since one of the grounds on which the learned Commissioner based his order is being member of a political party, related to a disqualification incurred by respondent No. 1 prior to his being elected as Member of the Town Committee, the High Court should not interfere with it in the exercise of its equitable jurisdiction. It observed fur ther that: "where a tribunal below has based his order on more than one grounds and one of them is found not to be within the scope of his jurisdiction or is an irrelevant consideration, this Court would not chop off the bad part of the order and sustain the other. This is properly a func tion of the Court of appeal. We are also fortified in our view by reference to decision of the Supreme Court in re Sheikh Amir‑ud Din v. Claims Commissioner, Pakistan, Lahore P L D 1968 S C 165, that a cause which is lawfully pending before a tribunal below cannot be removed from his jurisdiction and the proper course to be followed in such like case is to remand the case to the functionary below to deal with the matter afresh ...." The High Court, therefore, accepted the writ petition and remanded the case to the Commissioner for fresh decision. It may be mentioned that by- election of Wards Nos. 4 and 5 Town Committee, Liaqatpur, was held in the meanwhile and Muhammad Sharif, the present petitioner was elected unopposed from Ward No. 4, and took oath of the office as a Councilor. He had, therefore, been impleaded as a respondent in the aforementioned writ petition. As such, feeling aggrieved by the above‑noted order of remand passed by the' High Court the petitioner has filed this petition for Leave to Appeal.

3. The learned counsel for the petitioner contended that the reason given by the learned Judges of the High Court for 'setting aside order of the Commissioner relating to .the allegation of 'misconduct' is not sound because it does not attract the principle enunciated in the case of Rehmat Elahi (P L D 1965 Lah. 1 12), that where one of the grounds on which the concerned authority relied is found to be bad the entire order falls to the ground the counsel submitted that in cases which do not relate to `preventive detention' it is sustainable even if one of the grounds on which it is based is found to be correct, the entire order cannot be struck down. The respondent‑caveator submitted that the allegation levelled against the respondents namely, that they had encouraged encroachment and illegally permitted unauthorized persons to construct houses on the municipal land does not come within the definitions of `misconduct' as given in the explana tion to section 29 of the aforementioned Ordinance. Learned counsel for the petitioner submitted that this contention was, misconceived because, in the first place, the explanation given at the end of section 29 is not a definition and secondly because in view of the word 'include' used in it, it is apparent that it is not exhaustive. Leave is granted to consider the aforementioned questions. Security in the sum of Rs. 2,

000. Shall be heard on the same record with permission to file other docu ments. Stay order granted earlier shall continue in the meanwhile. Petition accepted.