P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Dr. Muhammad Aslam, M.B.B.S., a Medi cal Practitioner of Renala Khurd, was appointed as a member of the Town Committee Renala Khurd by the Collector of Montgomery District, who, under the Basic Democracies Order, 1959 (President's Order 18 of 1959), is the Controlling Authority for the whole District of Montgomery for the purposes of the above‑mentioned order. On the 6th of December 1960, a notice was served on Dr. Muhammad Aslam to show cause within ten days of the receipt of the notice why he should not be removed from the membership of the Renala Khurd Town Committee, under Article 25 (3) of the Basic Demo cracies Order, 1959. The notice contained the information that the removal was contemplated because Dr. Muhammad Aslam had been established to have done things mentioned in clause (c) of sub‑Article 2 of Article 25 of the Basic Democracies Order, 1959. In the reply that he sent to the Collector, Dr. Muhammad Aslam denied that he had been guilty of the things alleged against him. This reply was evidently not considered satisfactory by the Collector who, on the 20th of April 1961, passed an order, removing Dr. Muhammad Aslam from membership. After the above order was passed, Dr. Muhammad Aslam presented the present petition with a view to obtaining a writ that would make Ineffectual the order of his removal from membership of the Renala Khurd Town Committee.

2. The Collector of Montgomery District, who had removed the petitioner from membership of the Renala Khurd Town Committee, was impleaded as the only respondent in the writ petition. In the written reply that he put in, the respondent said that the order of removal was entirely justified and, therefore, no question of issuing a writ arose. A pre liminary objection was taken to the maintainability of the petition to the effect that sub‑Article (7) of Article 25 of the Basic Democracies Order, 1959, made the order of the Con trolling Authority final and no writ could, therefore, issue in the matter.

3. In order to determine the points raised by the parties, it appears necessary to have a clear picture of the relevant law, and I would, therefore, reproduce those provisions here. That part of Article 25 of the Basic Democracies Order, which is material for the purposes of the present case, reads as under: - "

25. Resignation and removal of members.‑(1) Any member of a Local Council may resign his office by tendering his resignation to the Chairman, and if he is the Chairman, to the Controlling Authority, and the seat of the members, or the office of the Chairman, as the case may be, shall become vacant when the resignation is accepted by the Controlling Authority. (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 II 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 mis conduct 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 without 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. * * * * * * * * * * * (7) No Court shall have jurisdiction to enquire into question the validity of any thing done, or any order made or resolution passed under this Article." Rules 4 and 5 of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, which were made by the Governor of West Pakistan In exercise of the powers conferred on him by Article 89 of the Basic Democracies Order, 1959, and appeared in the Gazette of West Pakistan, Extraordinary, dated the 11th of June 1960, as a notification without any number, are also relevant. These two rules read as under: ‑ "

4. Notice of disability.‑(1) If the Controlling Authority is of opinion that any member has rendered himself liable to removal from membership, under clause (2) of Article 25 of the Order, it shall, by notice in writing, call upon such member to show cause, within the fourteen days of the receipt of the notice, why he should not be so removed. (2) On receipt of the notice under sub‑rule (1) such member may, within the specified period, offer such explanation as he may deem necessary or he may resign his office. (3) If the explanation offered under sub‑rule (2) is In the opinion of the Controlling Authority, not satisfactory or if the resignation tendered by the member is not accepted, the Controlling Authority shall: ‑ (a) in the case of an appointed member, take action under rule 5 ; and (b) in the case of an elected member, make a reference for taking proceedings as required by clause (4) of Article 25 of the Order. (4) The Controlling Authority, while making a reference under clause (b) of sub‑rule (3) shall send a copy of the reference to the member concerned.

5. Removal of appointed members.‑(I) If the explanation offered by an appointed member Is, in the opinion of the Controlling Authority, not satisfactory, the Controlling Authority may hold such enquiry as may be necessary, and shall consult or obtain the approval of the authority in consultation with whom, or with whose approval, such member was appointed. (2) If the Controlling Authority is of opinion that the member concerned has rendered himself liable to removal, he shall pass an order removing such member from membership and specifying the period, under clause (5) of Article 25 of the Order, for which he shall not be eligible for election or appointment to any Local Council."

4. I will first of all take up the contention of learned counsel for the respondent in support of the preliminary objection raised by the respondent in the written statement to the effect that no writ could issue because of what is contained in sub‑clause (7) of Article 25 of the Basic Democracies Order, 1959, which has been reproduced in the last paragraph. Before sub‑clause (7) of Article 25 of the Basic Democracies Order, 1959, can be invoked, it has to be established that the order for which immunity is claimed was justified by any provision of Article

25. It is well settled that powers of Tribunals of general jurisdiction, which the ordinary Courts of a country are, to determine the validity or otherwise of orders passed by a Tribunal of special jurisdiction cannot be presumed to have been taken away if the orders for which immunity from scrutiny is claimed do not fall within the ambit of the provision of law which is relied upon for the assertion that jurisdiction had been taken away, unless the words of the law are clearly to the effect that the orders of the special Tribunal are sacrosanct, as far as Courts are concerned, even though the orders may amount to exercise of jurisdiction that did not exist. If a tribunal of special jurisdiction gives a finding of fact which has some evidence, however meager, to support it, the powers of Courts of general jurisdiction to declare that finding to be incorrect would not exist. If, however, the Tribunal acts either with an ulterior motive or bases its order on a ground which would not justify the passing of the order, the powers of the Tribunals of general jurisdiction to declare the order to be invalid would, In the absence of clear words to the contrary, continue to exist. However, it should not be supposed that a Tribunal of general jurisdiction would be in a position to substitute its own findings for the findings given by the Tribunal of special jurisdiction. If occassion arises for the Tribunal of general jurisdiction to issue a direction with regard to an order passed by a Tribunal of special jurisdiction, the order of the former Tribunal must confine itself to declaring the order of the latter tribunal to be inoperative and ineffectual. What I have said above with regard to the powers and orders of tribunal of general jurisdiction applies equally to powers of this Court when it is acting in the exercise of its extraordinary jurisdiction to issue writs. It follows, therefore, that if it can be established either that there was no evidence at all in support of the finding given by the Collector, or the evidence had been misread, or that though the findings of fact had been arrived at correctly, the law was wrongly applied, the jurisdiction to issue a writ in this case, notwithstanding the provisions contained in sub‑Article (7) of Article 25 of the Basic Democracies Order, 1959, shall exist. This position is so well established that I need mention no authority in support of it, except a decision of a Full Bench of this Court, recently given in Gulab Din v. Major A. T. Shaukat (P L D 1961 Lah. 952), wherein it was held by a Bench of three Judges, of whom I was one, that words to the same general effect as exist in sub‑Article (7) of Article 25 which occurred in a Martial Law Regulation or a Martial Law Order of a Martial Law Authority, do not completely oust the jurisdiction of this Court to issue writs. All that the Court would do however, is to say that the impugned order is inoperative, but will not pass any order which the law has declared to be within the exclusive jurisdiction of some other authority. When considering whether it should issue a writ with regard to the orders of a Tribunal of special jurisdiction, this Court will ordinarily be slow to act if an equally efficacious remedy has been provided by the law under which the Tribunal of special jurisdiction acted. One finds that there is no provision in the Basic Democracies Order, 1959, with regard to appeal or revision of an order passed under Article 25 of the Order, and I have no hesitation in coming to the conclusion that in case the circumstances show that the orders of the special Tribunal are against the law under which they purport to have been passed, the jurisdiction to issue writ could be exercised.

5. I now proceed to consider whether any grounds exist for exercising writ jurisdiction by this Court. It will be noticed that clause (c) of sub‑Article (2) of Article 25 of the Basic Democracies Order, 1959, under which the respondent acted, makes it clear that the member to be removed must have been guilty of an abuse of power or of any misconduct in discharge of his duties as a member or should have been responsible for any loss or misapplication of any money or property of any local council, or any local body or other local authority. It is clear that the above‑mentioned clause can be invoked only if it is established that what the member did amounted to misuse of his power as a member. The allegations against the petitioner were mentioned in the notice served on him to be that he along with two other members of the Town Committee of Renala Khurd had made an application to the Controlling Authority in which certain allegations were leveled against the Secretary and some members of the staff of the Committee. It was mentioned in the notice that the Tehsildar, Renala Khurd had made an enquiry and had found the allegations in the complaint to be baseless. I will assume that the report of the Tehsildar was that the allegations made in the complaint sponsored by the petitioner and two other members of the Town Committee against the Secretary and some other members of the Town Committee of Renala Khurd were baseless and I would even assume that the allegations were known by the petitioner to be false. The question to determine, however, is whether the provisions of clause (c) of Sub‑Article (2) of Article 25 of the Basic Democracies Order, 1959, under which the Controlling Authority had passed the order of removal are attracted. I may mention that Rules 4 and 5 of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, will not alter the position because those rules only lay down the procedure, while the substantive law with regard to removal is to be found in the Basic Democracies Order, 1959.

6. Now, it is clear that any person in the world could make a complaint against the Secretary and staff of the Renala Khurd Town Committee, though it is unlikely that a person not living within the jurisdiction of that Town Committee would make a complaint against its officers. As any resident of Renala Khurd could make a complaint against the officers of Renala Khurd Town Committee, I fail to see how the making of a complaint by a member would amount to abuse of power as a member. If the thing established to have been done were a thing which only a member could do, doing that thing for improper motives or without justification would, no doubt, be abuse of power as a member, but that can not be the case if what was done was not the exclusive power of a member to do. I am further clear in my mind that the duties as a member to which a reference is made in clause (c) of sub‑Article (2) of Article 25 are duties which a member has to perform by reason of the Basic Democracies Order, 1959, and has no reference to general good conduct which is the duty of every one to maintain. Lest it should be thought that I am saying that the law gives a licence to the members of a Basic Democracy to make false accusations against the servants of that body, I will explain that if the Controlling Authority complains to a Magistrate that the petitioner had committed an offence under section 182 of the Pakistan Penal Code, by having conveyed false information to a public servant, the result could be that the petitioner would be convicted of that offence, and if there be a conviction, the provisions of clause (c) of Part 11 of the second Schedule to the Basic Democracies Order, 1959, would be attracted and the petitioner would at once cease to be qualified to be a member of any Basic Democracy. The view of law I have taken was expressed in similar circumstances in Raja Sher Afgan Khan v. The West Pakistan Government (P L D 1957 Lah. 527) by a Bench of this Court of which I was a member. It is true that the case decided in 1957 related to the removal of a member under the Punjab Municipal Act, 1911, but the relevant provision, namely, the matters for which an order of removal could be passed were materially the same in the Punjab Municipal Act, as they are in the Basic Democracies Order, 1959, and therefore, that decision has relevancy in this case.

7. In view of what I have said above, I hold that the provision of law under which the respondent had acted was not applicable and, therefore, the order removing the petitioner from membership could not have been passed. I‑would, therefore, issue a writ of certiorari, declaring that the impugned order has no validity in law, but would pass no orders with regard to costs of the petition. SHAKIRULLAH, J.‑I agree. K. B. A. Petition accepted.