P L D 1983 Lahore 488 (PLP)

Ch. Muhammad Ismail for Petitioner. Khalil Ramdey, A. A.-G. for Respondents Nos. 1 and

2. Nemo for Respondent No.

3. Date of hearing: 8th May, 1983. . ????????? JUDGMENT This Constitutional petition has been filed by a member of the Municipal Committee, Shakargarh, District Sialkot, in the circumstances that the Chairman of the Committee, respondent No. 3, tendered his resignation on 20th of January, 1982. The respondent's case is that he withdrew the resignation on 22-1-1982. The Committee passed a resolution accepting the resignation on 23-1-1982. Communication was sent to the Election Authority for issuance of necessary notification. Respondent No. 3 moved the Election Authority saying that he had withdrawn his resignation. The Election Authority asked for a report. The Assistant Director, Local Rural Development Department, Sialkot held an inquiry in the presence of the members and came to the conclusion that the respondent had withdrawn his resignation on 23-1-1982 at 9.15 p. m. before holding of the meeting (in which the resignation was accepted) at 11.00 a. m. the same day. The Deputy Commissioner endorsed the finding and sent a Memorandum to the Election Authority to the effect that the application for withdrawal of resignation had reached the Committee's office on 23-1-1982 before the start of the meeting, which should have been considered alongwith the resignation as permissible under rule 4 (Resignation Rules, 1981). On receipt of this communication, the Election Authority sent a Memorandum to the Deputy Commissioner, Sialkot, that since respondent No. 3 had withdrawn his resignation before start of the meeting, of Municipal Committee, Shakargarh, held on. 23-1-1982 at 11-00 a. m. for placing of resignation before it, he continues to be Chairman of the aforesaid Municipal Committee'. This is dated 12th May, 1982. It is challenged through this writ petition.

2. Learned counsel for the petitioner has contended firstly, that according to the application of the respondent (Annexure `E'), the latter had withdrawn his resignation on 22-1-1982, and the finding that he had done so on 23-1-1982 at 9-15 a. m. is illegal. He has secondly contended that the Election Authority had no right to ask for holding of the inquiry in the matter. On legal plane, the learned counsel has submitted that against the resolution of the Municipal Committee accepting the resignation of respondent No. 3 on 23-1-1982, the latter had the right to challenge the same by means of an appeal under section 166, of the Punjab Local Government Ordinance, 1979, and the Election Authority did not have the jurisdiction to pass the impugned Memorandum on 12th May, 1982. He has contended that the powers of the Election Authority are prescribed under sections 17 and 34 of the aforementioned Ordinance. Section 17 deals with the holding of elections in a fair and legal manner. This provision has nothing to do with the situation in hand. As regards section 34, he has submitted that the jurisdiction of the Election Authority is just to issue a notification about election, resignation or removal of a Chairman or Vice-Chairman or a Member of a Local Council. He also submitted that rule 4 of the Punjab Local Council (Resignation) Rules; 1981, which provides for withdrawal of resignation before it is placed before a Local Council, is ultra vires of section 30 of the aforementioned Ordinance, because the latter section only provides that a Chairman, Vice,Chairman or Member may resign his office- by tendering resignation in writing to the Local Council of which he is the Chairman, Vice-Chairman or member.

3. The last contention may be disposed of first. The impugned rule has been made in pursuance of powers conferred under section 167 of the Punjab Local Government Ordinance, 1979, which lays down that the Government may make rules for carrying out the purposes of the Ordinance. It is obvious that in order to deal with the situation in its entirety regarding the resignation etc. the Governor may provide that resignation . tendered may be withdrawn before its being placed before the competent authority i. e; the Local Council.

4. As to whether the respondent had withdrawn the resignation on 22-1-1982 as he said, or, at 9-15 a. m. on 23-1-1982, that is of not much consequence in view of the fact that the Assistant Director and the Deputy Commissioner have come to the conclusion on evidence and record that the respondent had withdrawn the resignation earlier than the holding of the meeting. Under aforesaid rule 4, if the withdrawal had taken place,) before the meeting, the matter had to be placed before the Council and that having not been done, the resultant action of the Council was contrary to the) provisions of the law.

5. As regards the contention of the learned counsel for the petitioner that the respondent could file an appeal, and that the Election Authority bad no right to issue the impugned Memo. dated 12th May, 1982, it may be taken note of that against the resolution accepting the resignation of respondent. No. 3 by the Municipal Committee, respondent No. 3 may have had recourse to an appeal. But that did not mean that in the circumstances of the case, the Election Authority had no right to issue the Memo. impugned in this petition. The learned counsel for the petitioner is right that section 17 of the Ordinance had no application to the facts of the case, but section 34 of the Ordinance which reads as follows: "The election, resignation or removal of a Chairman, a Vice-Chairman or a Member or the vacation of office by a Chairman, Vice-Chairman or a Member of a local council shall be notified." will involve that the Election Authority can see before issuing a notification as to whether there was, in fact, an election, resignation or removal. If in same circumstances there is a doubt about the happening or existence of the fact, it would be within the permissible province of the Authority to see as to whether the fact had, in fact, happened or not. In this particular case, the Election Authority after inquiry and finding that the resignation had been withdrawn prior to the holding of the meeting, rightly issued the Memorandum. Even if there were to be any doubt about its jurisdiction to do so, we are of the view that this is not a fit case for exercise of discretion in the Constitutional jurisdiction because it will involve holding of fresh inquiry into facts and more importantly fresh elections to the Local Council, are likely to be held as announced in October or November this year and it is not desirable to upset the working of the Council and creating uncertainty. Therefore, notwithstanding the able arguments of the learned counsel for the petitioner we do not think that exercise of constitutional jurisdiction is called for. This petition is therefore dismissed but the parties are left to bear their own costs. M.Y.M.??????????????????????????????????????????????????????????????????????? Petition dismissed.