P L D 1958 (W (PLP)

SHABIR AHMAD, J.‑--Chaudhry Qasim‑ud‑Din, Advocate, who used to be a Councillor of the City of Lahore Corporation, has presented this petition under Article 170 of the Constitution of the Islamic Republic of Pakistan for the issue of a writ of quo warranto, mandamus or any other appropriate writ, order, or direction to the effect that the Advisory Council of the City of Lahore Corporation, alleged to have been set up in the month of January last year, is an illegal body, the members of which have no legal status with the result that they cannot advise the Administrator of the City of Lahore Corporation or interfere with his work and that the act of the Government of West Pakistan in not holding elections to the City of Lahore Corporation is illegal, mala fide and based on ulterior motives. A direction is also sought that the elections to the City of Lahore Corporation be held immediately. The respondents to this petition are forty‑four in number, but of them only a few need be mentioned. Respondent No. 1 is the Province of West Pakistan, through the Secretary, Social Welfare and Local Government; respondent No. 2 is the City of Lahore Corpo ration, through the Administrator of the City of Lahore Corporation; respondent No. 3 is Sayyed Hadi Ali Shah, an ex‑Mayor of the City of Lahore Corporation; respondent No. 18 is Malik Muhammad Akbar, Advocate, an ex‑Councillor of the City of Lahore Corporation; while Sheikh Muhammad Rafiq v. Advocate, respondent No. 44, is also an ex‑Councillor of the Corporation.

2. The grounds on which the writ, direction or order is prayed for may be briefly stated. The last elections to the City of Lahore Corporation were held in 1953 and the Councillors took the oath of allegiance on the 20th of July 1953. The ordinary tenure of the members of the City of Lahore Corporation under the Act governing it, i.e., the City of Lahore Corporation Act, 1941, (to be referred to hereafter as the Act), is three years, but could be extended under section 10 of the Act for one year. The tenure of the members of the City of Lahore Corporation (to be referred to hereafter as the Corporation) came to an end automatically on the 19th of July 1956, because the power to extend it was not exercised. On the 15th of September 1956, West Pakistan Ordinance XX of 1956 was promulgated whereby section 395‑A was added to the Act this section was to the effect that if the term of the Councillors is not extended under the proviso to section 10 of the Act, provisions of section 394 of the Act would apply with the result that an Administrator of the Corporation, who under the original Act, could be appointed only where the Corporation had been superseded, could be appointed. The Ordinance was replaced by the West Pakistan Act XIV of 1957 which made some modifications in the law and made it obligatory that a fresh Corporation be reconstituted within six months of the date of the expiry of the term of the Councillors. Mr. Ahmad Raza, a senior member of the Provincial Civil Service, was appointed as the Administrator of the Corporation on the 25th of October 1956, by an order notified in the gazette of West Pakistan and took upon himself the duties enjoined on him and started exercising the powers conferred on him under section 394 of the Act. It is alleged in the petition that on the 9th of January 1957, Makhdoomzada Hasan Mahmood, the Minister for Social Welfare and Local Government, West Pakistan, appointed some of the ex‑Councillors as advisers to the Administrator. No order was passed in writing either about the appointment or about the powers which the members of what was called the Advisory Council of the City of Lahore Corporation were to exercise. According to the petition, the Advisory Council was installed in the office of the Corporation and Sayyed Hadi Ali Shah, who was elected as the Chairman of the Advisory Council by a majority of its members, started using the room meant for the Mayor, was given a clerk, a stenotypist, two peons, a telephone and a full set of rooms. Sayyed Hadi Ali Shah was an ex‑Mayor of the Corporation, but at the time when the Corporation ceased to exist on the 19th of July 1956, he was not the Mayor as he had not been elected to that office in the annual elections which were held for filling the post of the Mayor. It was said in the petition that the Advisory Council not being a body recognized by law, could not interfere with the work of the Administrator and no expenses could be incurred for affording facilities to its members out of the Corporation funds. The petition went on to say that Sayyed Hadi Ali Shah had been asked to nominate the members of the Advisory Council as he was a member of the ad hoc Committee of the Republican Party in Lahore and that the members of the Advisory Council were mostly persons, who had inclinations towards the Republican Party, which is now in power in West Pakistan and that the object in installing the Advisory Council was to help the Republican Party in winning the general elections to the Corporation as well as general elections to the Provincial Assembly and the National Assembly. With regard to the elections to the Corporation, it was said that they had been delayed with ulterior motives.

3. The reply of the West Pakistan Government was that the delay in holding the elections to the Corporation was due to circumstances beyond the control of the Provincial Government. With regard to the Advisory Council, it was said in the written statement of respondent No. 1 that the appointment of its members was made so that they may act in an advisory capacity to apprise the Administrator of the measures which would improve the general condition of the town, that its members were expected to mobilise public opinion by persuading the people to lend a helping hand to the Administrator in the implementation of the plans of the, Corporation, but the members had no legal status. It was, however, denied by respondent No. 1 that the members of the Advisory Council were named by Sayyed Hadi Ali Shah, respondent No. 3 and it was said that the list of advisers was sent to the Minister‑in‑charge by the Administrator, respondent No.

2. The Administrator in his written statement said, inter alia, that the expenses which were stated in the petition to be about Rs. 700 a month were being met out of the Corporation funds to give facilities and amenities to members of the Advisory Council. It was further said that a list of advisers was supplied by Sayyed Hadi Ali Shah to the Administrator who passed it on in original to the Minister for Social Welfare and Local Government. With regard to the expenditure being incurred for the Advisory Council, it was said by the Administrator, respondent No. 2, that the Audit Department of the Corporation had objected to the incurring of the expenditure on the ground that it was not a valid charge on the funds of the Corporation and that the objection had been brought to the notice of the Provincial Government and the Commissioner, Lahore Division. In his written statement Sayyed Hadi Ali Shah, respondent No. 3, said, inter alia that the members of the Advisory Council were sacrificing their time and energy to be of service to the citizens of Lahore. In paragraph No. 15 of the written statement of respondent No. 3 it was said that the Administrator of the City of Lahore Corporation was subject to the control of the Advisory Council. The written statement put in by Mr. Muhammad Akbar, respondent No. 18, was to the effect that the Government was competent to constitute an Advisory Council for assisting and advising the Administrator. It was, however, said that the Government be directed to hold general elections to the Corporation immediately in accordance with law. In the brief written statement put in by Sheikh Muhammad Rafiq, respondent No. 44; it was said that he was in full agreement with the petitioner with regard to the reliefs prayed for in the petition and that he had, therefore, resigned from the Advisory Council on the ground that it was an undemocratic body.

4. With regard to the Advisory Council, Ch. Qasim‑ud‑Din, the petitioner, who argued his case himself, urged that there was no provision in the Act for the appointment of such a body and on that short ground the appointment of that body by the Minister had no legal effect and, therefore, no expenditure could be incurred out of the Corporation funds to afford facilities and amenities to the members of the Advisory Council. Mr. M. Anwar, the learned Assistant Advocate‑General, who appeared for the West Pakistan Government, respondent No. 1, urged that though it was no doubt true that the Act did not contemplate the appointment of an Advisory Council of the type, of which the present Advisory Council was, yet there was no illegality in affording facilities and amenities to its members, because the advice they were tendering was of a useful character and the expenditure incurred to get advice of that type could not be said to be either illegal or a waste of Corporation funds. Mr. Karamat Ali, Advocate, who put in written statement on behalf of respondent No. 3 only but appeared for that respondent and most of the 'others, urged that the Advisory Council had been appointed to keep a check and control on the work of the Administrator of the Corporation and the appointment was perfectly within the four corners of the law and the expenditure incurred on the Advisory Council could not be said to be unwarranted.

5. Whether or not the impugned Advisory Council has any legal status has to be determined by the provisions of the Act and in this connection the only relevant provisions are section 394 and section 395‑A, the latter of which was inserted by the City of Lahore Corporation (West Pakistan Amendment) Act XIV of 1957. These sections read as follows:- Section 394.‑"(1) When the Corporation is superseded under section 393 the following consequences shall ensue‑ (a) all members of the Corporation shall, from the date of the notification, vacate their seats ; (b) all powers and duties of the Corporation, Standing Committee and the Chief Executive Officer may, until the Corporation is reconstituted, be exercised, and performed by such person as the Provincial Government may appoint in that behalf, and the person so appointed shall be called the Administrator of the City; (c) all property vested in the Corporation shall, until the Corporation is reconstituted vest in such person in trust for the purposes of this Act. (2) The Administrator of the City shall be a corporation sole and may sue and be sued in the name of `The Administrator of the City'. (3) The Administrator of the City shall be subject to the control of the Provincial Government and such, other person or persons as they may direct and shall be subject also to all other restrictions, limitations and conditions imposed by this Act on the Corporation, the Standing Committee and the Chief Executive Officer. (4) The Administrator of the City may at any time be removed by the Provincial Government who shall also have power to appoint another person in his place. (5), The Provincial Government may, if they think fit, at any time constitute another Corporation in the place of the Corporation superseded under this section". "395‑A.. Consequences of expiry of terms without extension.‑ When the term of office of the members of the Corporation expired and is not extended under the proviso to section 10 the members shall vacate their seats on and from the date of expiry of the' term and until elections of the members are held in accordance with the provisions of this Act the provisions of clauses (b) and (c) of subsection (1) and of subsections (2), (3) and (4) of section 394 and of section 395 shall apply as if the Corporation were superseded under section 393 Provided that the Provincial Government shall reconstitute the Corporation within a period of six months from the date on which the members vacate their seats Provided further that if the members had vacated their seats before the coming into force of the City of Lahore Corporation (West Pakistan Amendment) Act, 1957, the Provincial Govern ment shall re‑constitute the Corporation within a period of six months from the date of coming .into force of the said Act." The contention of the petitioner was that the Advisory Council could not be deemed to be a person or persons validly appointed by the Provincial Government to have control over the Administrator and, therefore, its appointment was not warranted by the provisions of law. This position was not controverted by the learned Assistant Advocate‑General, but Mr. Karamat Ali, Advocate, urged strenuously that though the Provincial Minister for Social Welfare and Local Self‑Government had not given the Advisory Council powers of control over the Administrator, it became automatically clothed with these powers because of the provisions of section 394 of the Act. It is evident from some of the documents, which have been placed on the record, that the Advisory Council have been behaving with regard to the Administrator as if they had been given power to control his acts.

6. I cannot bring myself to accept the contention of Mr. Karamat Ali with regard to the Advisory Council having control over the acts of the Administrator, because there is no proof that the Provincial Government, which alone could vest control over the Administrator, in the members of the Advisory Council, had done so. As mentioned above, the position of the Provincial Government clearly is that the members of the Advisory Council have no legal status. In a matter, which is by no means unimportant, one would have expected that the order of the Minister would be in writing so that if at any time a question arises about the import or the validity of that order, the order itself could be produced. It is not without significance that in the Rules of Business of the Government of West Pakistan it is said under the heading "General Procedure of Disposal of Business" in clause 7 that all orders should be passed in writing and where a verbal order is given it should be reduced in writing at the earliest opportunity by the officer receiving it. It is common ground that no written orders were passed by the Minister,‑ an omission which if it was not intentional is astonishing. It is further clear that such an order was not conveyed verbally to any officer and, at any rate, no officer had written it down. It is not necessary in the present case to decide whether or not an order by a Provincial Minister which was not in writing would be valid, because it appears to me that acting under Article 170 of the Constitution Act by this Court with regard to the Advisory Council is called for because its members are claiming and trying to exercise powers which the authority which could have given those powers to them denies having hone so. It is true that in the absence of a written order, there is nothing to show that the Minister had not given the members of the Advisory Council the powers they are claiming for themselves, but in view of the clear averments in the written statement of the Provincial Government, it could hardly be doubted that the Advisory Council has not been given the powers of control over the Administrator which it could have been given under section 394 of the Act, but which it is obvious that the Provincial Government had no intention of conferring on it.

7. The question that I will now consider is whether spending money out of the Corporation funds for affording amenities and facilities to the members of the Advisory Council would be a misuse of the Corporation funds. Mr. M. Anwar, the learned counsel for respondent No. 1, contended that the money was spent under the orders of the Provincial Government and the expenditure was, therefore, covered by clause g (i) of third part of section 67 of the Act which says that moneys from time to time credited to the Municipal funds may be spent, inter alia, on sums payable under the orders of the Provincial Government. It is obvious that it is only those orders of the Provincial Government for spending money that can be validly passed which are contemplated by the provisions of law relied upon and an order which has no legal basis cannot justify, the expenditure of the funds of the Corporation even though an order for the expenditure may have been passed by the Provincial Government. The contention of .the petitioner was that Corpo ration funds were being spent to afford facilities to persons who supported the Republican Party, now in power in the Province, but it is not necessary in the present case to look into that matter and I will presume that the expenditure is being incurred for a laudable purpose. The present Advisory Council has no legal status and the expenditure on it being not allowed by law, such expenditure does not lose its illegal character because the purpose is laudable. It may be that the law is defective but if it is so the course to be followed, is to have the law changed and not to disregard it.

8. I will now deal with the prayer for grant of a direction to the Provincial Government that the elections to the Corporation be held immediately. I have already mentioned that West Pakistan Act XIV of 1957 modified the City of Lahore Corporation Act, 1941, so that a fresh Corporation has to be constituted within six months of the date of the expiry of the terms of the outgoing, Councillors or of the coming into force of the Act whichever is later, and it would, therefore, appear that under the law the elections cannot be postponed any longer and are in fact already overdue. Mr. M. Anwar, the learned Assistant Advocate‑General, West Pakistan, who appeared for respondent No. 1, stated that it was the intention of the Provincial Government to hold the elections to the Corporation has early a date as possible and explained that the delay that had occurred was due to causes over which the Provincial Government had no control. He gave a number of reasons for the delay, the most important of which was that a decision had been given by a Division Bench of this Court in Mst. Parveen Zohra v. The Province of West Pakistan ( P L D 1957 Lah. 1071) that the guarantee of equal protection given by Article 5 of the new Constitution extends to political rights and women cannot be given less rights than men in the matter' of elections to District Boards. This decision, according to the explanation given by the learned Assistant Advocate‑General, which I see no reason for not accepting, necessitated the preparation of fresh electoral rolls so that names of women voters be included in those rolls. Mr. M. Anwar gave an assurance that the Provincial Government will hold elections within a reasonable time of the decision of the Supreme Court before whom an appeal against the above mentioned decision of this Court was pending. The assurance given by the learned Assistant Advocate‑General on behalf of the Provincial Government was, in my view, entirely sincere and I am satisfied that the Provincial Government could not be held to be blameworthy for the delay in the elections to the Corporation. In these circumstances, I do trot consider it necessary to issue a direction to the Provincial Government to hold the elections to the Corporation immediately, but would issue the direction that the elections be held within one month of the judgment of the Supreme Court in Mst. Parveen Zohra's case.

9. The result is that I would issue a direction that the Advisory Council set up by the Minister Social Welfare and Local Government Department shall not interfere with the work of the Administrator of the Corporation and no amount from the munici pal funds shall be spent for giving any amenities or facilities to the Advisory Council or any of its members. I would further issue a direction that the Provincial Government shall hold elections to the Corporation within one month of the date of the judgment of the Supreme Court in Mst. Parveen Zohra's case. The petitioner shall have his costs of this petition from respondent No.

1. KAIKAUS, J.‑

I agree. A. H. Petition accepted.