2005 PLP 186 (SCMR)

JAVED IQBAL, J.‑‑‑ This appeal with leave of the Court is directed against the judgment dated 22‑9‑2003 of the learned Lahore High Court, Lahore, whereby writ petition preferred on behalf of appellant was disposed of in the following manner:‑ "Recall motions carried against petitioners by the majority of members of the Town Council, Tehsil Council and Zila Council are maintained. The rules framed under section 191 of the Punjab Local Government Ordinance (XIII of 2001) on 1‑9‑2003 are in accordance with law, consistent with the provisions of the Ordinance and had not been made in a mala fide manner and can validly be applied after 18‑9‑2003. Said rules framed on 1‑9‑2003 were enforced forthwith prior to their publication in the Official Gazette which took place on 18‑9‑2003. The enforcement of the Punjab Local Government (Recall motions against Naib Nazims and Nazims) Rules, 2003 prior to publication in the Official Gazette is unlawful in view of subsection (3) of section 191, Mumtaz Hussain v. Chief Administrator Auqaf (PLD 1976 Lahore I11), Muhammad Suleman and others. v. Abdul Ghani (PLD 1978 SC 190), Ismail v. Member, Board of Revenue, Punjab, Lahore (2000 YLR 295), and Messrs Nemat Flour Mills Pvt. Ltd., through Director v. Government of the Punjab through Secretary, Local. Government and Rural Development Department, Lahore (2001 YLR 835). Consequently the Notifications dated 2‑9‑2003 issued by the Punjab Election Authority and the Government of Punjab against petitioners under rule 14(1) and (2) of the said rules are illegal"

3. The Punjab Election Authority and the Government of 'Punjab can apply the afore‑referred rules after 18th of September, 2003, the day on which same were published in Official Gazette."

2. Being aggrieved civil petition for leave to appeal was filed and leave granted by means of this Court's order dated 7‑10‑2003, which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:‑‑ "This petition is directed against the judgment dated 22‑9‑2003 of the Lahore High Court, Lahore passed in Constitutional Petition No. 11358 of 2003.

2. The petitioner was elected as Nazim of Data Gunj Bukhsh Town. A no confidence motion was moved against him in the said Tehsil Council which according to the respondent was voted upon and passed by the majority of the members of the said council. According to section 63 of the Local Government Ordinance 2001, it was required to be referred to the members of the Union Council in the said Tehsil which according to learned counsel for petitioner are 693 in numbers for voting. It also provides that the Nazim would cease to be the Nazim after it was passed by the majority of the total number of members. It is an admitted factual position that the members of the Union Council have not yet taken up the said recall motion for voting. On 18th September, 2003, Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 were promulgated which confer discretionary powers on the Provincial Election Authority to restrain a Nazim to perform any of his functions during pendency of said recall motion. A notification was issued by Provincial Election Authority on 23rd September, 2003 whereby the petitioner was restrained from performing any of his functions as Nazim of the said town till the conduct of the voting on the recall motion by the members of the Union Council. As a consequential measure, the Provincial Government on the same date i.e. 23rd September, 2003 issued a notification authorizing the District Coordination Officer, City District Government, Lahore to perform the function of Nazim till further orders. The validity of the Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 in particular rule 14(1) and (2) on the ground that the same were ultra vires of the provisions of section 63 of the Punjab Local Government Ordinance, 2001 and exercise of power under the said rules were challenged before the High Court in the Constitution petition which has been decided through the impugned judgment by holding that:‑‑ (a) the said rules were not ultra vires of the provisions of section 63 of the Punjab Local Government Ordinance, 2001, therefore, were valid; (b) power could be exercised under the said rules by Provincial Election Authority of restraining the Nazim from performing any of his functions as such after the publication of said rules through notification.

3. The main burden of arguments presented by learned counsel for petitioner in support of this petition, inter alia, was that under section 63 of the Punjab Local Government Ordinance, 2001, Town Nazim who is an elected person, does not cease to be Nazim unless a recall motion was voted upon and passed by majority of total members of the Union Council as such confirmation of discretionary powers on the Provincial Election Authority of restraining him from performing any of his functions as such was ultra vires of the said substantive provisions of the Ordinance. He further argued that discretionary powers under Rule 14(1) and (2) of the Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 by the Provincial Election Authority, even if held to be available, the same was exercised mechanically without application of mind. Learned counsel also challenged the wires of some provisions of section 63 of the Ordinance 2000 and proceedings of the recall motion conducted by the Tehsil Council by arguing that neither the proposer nor the secondor supported the recall motion in the house as such it should be deemed to have not been moved.

4. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court learned counsel for respondents (2‑3), who were the movers and secondors of the recall motion in the Tehsil Council, frankly conceded that question No.l raised by the learned counsel for petitioner is important question of law and public importance, therefore, in principle, he would not oppose the grant of leave to appeal to settle the same by an authoritative pronouncement by this Court but.objected to grant of interim relief prayed for by the petitioner of suspension of the order of Provincial Election Authority restraining the petitioner from performing function as Nazim and consequential appointment of Deputy Co‑ordination Officer to perform the function of Town Nazim.

5. Leave is granted to consider inter alias‑ (a) Whether Rule 14(1) and (2) of the Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 are ultra vires of the provisions of section 63 of the Punjab Local Government Ordinance, 2001? (b) If the said Rules i.e. 14(I) and (2) are found to be not ultra wires A of the provisions of section 63, whether the discretionary power vested in the Provincial Election Authority in this case has been exercised on the application of proper. mind, keeping in view the principles laid down by the superior Courts regulating the exercise of such powers?

6. As to interim relief, after hearing learned counsel for the parties, we are inclined to pass the order as prayed, for, the order passed by the Provincial Election Authority, has the effect of depriving the petitioner of exercising his powers and performing functions under the Punjab Local Government Ordinance as Nazim though, under the said provisions, he does not cease to be Nazim, till the passing of the recall motion by majority of the total number of members of the Union Council.

7. Operation of the order/notification dated 23rd September, 2003 issued by the Provincial Election Authority, restraining the petitioner from performing any of his functions as Nazim of Data Gunj Bukhsh Town and consequential notification issued by the Provincial Government of the same date of appointment of Deputy Coordination Officer to perform functions of Nazim of the said Town shall remain suspended till the disposal of appeal.. " 3.On 23‑10‑2003 C.M.A bearing No.2435 of 2003 in Civil Appeal No. 1390 of 2003 was moved and disposed of and operation of, the notification dated 20‑10‑2003 issued by the Election Authority, summoning the meeting of the Members of the Union Council in pursuance of the recall motion passed on 15‑8‑2003 by the Town Committee was suspended.

4. Malik Muhammad Qayyum, learned Advocate Supreme Court appeared on behalf of appellant and controverted strenuously that the controversy has not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is contended that various important points agitated before the Lahore High Court were never decided causing grave prejudice against the appellant. In order to substantiate the said contention it is argued that the question as to whether the provisions as contained in section 63(4) of the Punjab Local Government Ordinance, 2001 (hereinafter referred to as the 'Ordinance') are in conflict with the concept' of electoral college contained in sections 149(3) and 154(3) of the Ordinance was not answered by the learned High Court: It is next contended that Hon'ble High Court erred while directing the Government and Punjab Election Authority to legalize its infirm order contained in the notification dated 16‑8‑2003 which could not have been done without dilating upon various questions as agitated before the learned High Court as well as incorporated in the writ petition. It is urged with firmness that the Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 (hereinafter referred to as 'the Rules') are in conflict with the provisions of the Ordinance and the relevant provisions of the Constitution of .Islamic Republic, of Pakistan and are thus ultra vires because Election Authority has been given unfettered power by the rules which in fact was never conferred upon it under the Ordinance itself. It is argued that the provisions as contained in rule 14 vests unlimited power in State functionary to the derogation of the exercise of powers of the public representatives who by virtue of their office command the confidence of the general public and thus the rule is oppressive and arbitrary which is against the settled democratic norms and in violation of well‑entrenched principles of natural justice. In this context it is further argued that the power given under rule 14 override the provisions as contained in section 63 of the Ordinance and thus violates the principles of subordinate legislation which has to be subservient to the parent legislation. It is pointed out that the rules cannot confer new powers on public functionaries which the Ordinance does not grant and can only be framed within the parameter of the Ordinance to prescribe and give a detail of the powers already granted under it. It is argued that the promulgation of rules with haste and orders of the removal of appellant were passed simultaneously with a wilful omission by not mentioning the date for the final motion which is indicative of misuse of power as,, well as mala fides. It is pointed out that notification dated 23‑9‑2003 was issued after notifying the rules on 18‑9‑2003 and issued immediately after the pronouncement of the judgment of learned High Court dated 22‑9‑2003 which is another example of ulterior motive. Malik Muhammad Qayyum, learned Advocate Supreme Court on behalf of appellant criticized bitterly the proceedings dated 15‑8‑2003 being void, mala fide and carried out under force and coercion to remove the appellant due to his political association with Muslim League (N). It is argued, that the recall proceedings could not have been voted upon by the Minority, Peasant and Women members as those persons were not the appellants electors which made the voting illegal and liable to be set aside. It is urged emphatically that the main object of the enactment of the Local Government Ordinance specially, section 63 is that baseless allegation having no substance must not cause any legal consequences as the proceedings based thereon are fictional and ineffective. The motion moved against the appellant contained only bald and baseless assertions which were never supported by any evidence and on the contrary it was stated by the, seconder in a categoric manner that all the allegations levelled against the appellant contained in the recall motion were false and baseless. In fact no recall motion pursuant to the true spirit of provisions as contained in section 63 of the. Ordinance was ever moved.

5. It is further argued that reasons must be given by the Members before formation of any opinion and in absence whereof it would become justiciable. The learned Advocate Supreme Court has referred the following authorities to substantiate his viewpoint as discussed above:‑‑, Abdul Majeed v. Muhammad Subhan (1999 SCMR 1245), Abdul. Razique Khan v. Province of. Sindh (PLD 1994 SC 79), Federation of Pakistan v: Muhammad Saifullah Khan (PLD 1989 SC 166), Abdul Malik , v. State (PLD 1968 SC 349), S. Narayanappa v. I.T. Commissioner Bangalore (AIR 1967 SC 523), Ahmad Tariq Rahim v. Federation of Pakistan (PLD 1992 SC 646), Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) and Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473). It is contended that the provisions as enumerated in section 63(1) of. the Ordinance have not been complied with.

6. Malik Muhammad Qayyum, learned Advocate Supreme Court remained critical regarding the powers conferred upon the Election Authorities which, according to him, does not figure in as all the functions have been assigned to the Election Commission of Pakistan and simultaneous conferring of powers upon the Election Authority is mala fide because Government wants to exert undue influence. It is also pointed out that the provisions as contained in section 63 of the Ordinance being self‑executing, there was no justification whatsoever for framing of rules. In this regard reliance has been placed on cases titled West Pakistan Bar Council Tribunal Lahore v. Mr. Yousaf Ali Khan (1972 SCMR 485) and Province of East Pakistan v. Noor.Ahmad (PLD 1964 SC 451).

7. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court appeared on behalf of respondents No.2, 3, 6 and the Punjab Election Authority‑respondent No.7 and argued that exercise of discretion by the Election Authority is judicious, independent and strictly in accordance with law and no serious‑ allegation whatsoever has been levelled against the Election Authority. It is pointed out by Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court that first phase concerning recall motion has been completed in accordance with law, and thirty Members have conveyed there no confidence' and thus the appellant has no moral or legal right to perform the function of Nazim and accordingly in view of the will of the public representative the Election Authority may be allowed to complete the second phase pursuant to notification dated 20‑10‑2003 after allowing C.M.A. bearing No.3053 of 2003. In order to substantiate his viewpoint, reference has been made to the following authorities:‑‑ Amin Ahmed v. Ministry of Production. Government of Pakistan (PLD 1996 Karachi 27), Calicon (Pvt.) Ltd., v. Federal Government of Pakistan (NLR. 1993 Civil 364), Calicon (Pvt.) Ltd., v. Federation of Pakistan (MLD 1996 708), Fauji Foundation v. Shamimur Rahman (PLD 1983 SC 457).

8. Syed Shabbar Raza Rizvi, learned Advocate General Punjab has supported the judgment impugned for the reasons enumerated therein with further submission that all the proceedings qua recall motion have been completed in accordance With law and the Members have exercised their free‑will without any coercion or compulsion. It is pointed out that the recall motion has been passed by a clear majority, hence the question of any mala fide does not arise. The learned Advocate General has also highlighted the difference between "recall motion" and "no confidence". The learned Advocate‑General submitted that first phase has been completed and meeting of the Members of Union Council was called for consideration of the recall motion in pursuance of the resolution of the Town Committee but further action could not be taken due to order passed by this Court on 23‑1.0‑2003. It is further contended that the rules have been framed in exercise of power as conferred upon Government under section 191 of the Ordinance. He has referred .following authorities in support of his arguments:‑‑ Federation of Pakistan v. Saeed Ahmed (PLD 1974 SC 151), Ghulam Haider v. SHO CPS (PLD 1988 Quetta 52), Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415), State v. Ziaur Rahman PLD 1973 SC 49), Fauji Foundation, v. Shamimur Rahman (PLD 1983 SC 457) and Muhammad Safeer v. Faqir Khan (2000 SCMR 312).

9. Dr. Khalid Ranjha, learned Advocate Supreme Court appeared on behalf of official respondents and argued that the appointment of District Co‑ordination Officer has been withdrawn and it would now be an academic exercise to examine the vires of rule 14(2) because it is not an alive issue as the notification challenged in this regard has been withdrawn. It is urged with vehemence that the rules have been framed in accordance with the Ordinance, and there is no inconsistency whatsoever.

10. We have carefully examined the respective contentions as agitated on behalf of the parties and perused the judgment impugned. We have gone through the entire record with the eminent assistance of learned counsel. After having gone through the entire record we are of the considered view that the proceedings initiated against the appellant for recall motion appears to be mala fide and fraught with manoeuvring, coercion, inducement, harassment and threats. We are conscious of the fact that it is one of the difficult tasks to prove mala fides but it is not considered 'impossible. This Court in case titled Federation of Pakistan through the Secretary Establishment Division v. Saeed Ahmad Khan and others (PLD 1974 SC 151) while discussing the question of mala fides has held as follows:‑‑ "Mala fides is one of the most difficult things to.prove and the onus is entirely upon the person alleging mala fides to establish it, because, there, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any inquiry be launched upon merely on the basis of vague and indefinite allegations, ‑nor should the person alleging mala fides, be allowed a roving inquiry into the files of the Government for the purposes of fishing out some kind of a case. "Mala fides" literally means 'In bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the actions does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for person alleging that an action has been taken mala fide. To show that the person responsible for taking the action has been motivated by anyone of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal, malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterized as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorized by the law but for the personal aggrandizement of the persons empowered with the power to make the order of acquisition, or because the person so authorized to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. Similarly, if the acquisition of the taking over of industries is authorized in certain specified circumstances and for certain specified purposes. Then the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law. In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession. It is true that in the case of Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 SC 323) it had been pointed out that in the case of a detention of a person the initial onus is on the detaining authority to prove that detention was lawful but this principle does not apply in other cases where the onus is initially upon the person alleging mala fides to prove mala fides. It would be wrong, therefore, in such cases to call upon the authority to produce evidence in its possession to justify its action merely on the basis of a vague allegation that the action has been taken mala‑fide. In such cases the party making the allegation should first be called upon to adduce proof and after he has led evidence to make out a prima facie case then and only then should the other side against whom the allegation of mala fides is made be called upon to justify the action. If the Courts keep this in view, we venture to think that the difficulties to which the learned counsel appearing on behalf of the Governments have referred will not arise. In this connection we may also refer to the observations of this Court in the case of Lt. Col. Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), where the question arose as to whether compulsory retirement of an officer was mala fide. This Court observed as follows:‑‑ `In the present case from the materials that have been placed before us, all that can be said is that the functionaries responsible for deciding the question of the retirement of the appellant in Civil Appeal No. 100 of 196.6 may have made a wrong judgment but there is nothing before us which would lead us to the inference that the action was necessarily mala fide or the result of any conspiracy. There is no allegation that anyone in particular was ill‑disposed towards him or had any special personal reason for getting rid of him. Nor did he state as to what was the nature of the conspiracy against him or who were' the alleged conspirators. A general allegation,of hostility against all senior officers from even before partition was not sufficient to establish mala fides of those who were ultimately responsible for the decision to compulsorily retire him. Mala fides have to be alleged with particularity and mere assertion of a general malice cannot be sufficient for this purpose'." Muhammad Ishaq v. Collector Lahore District 2000 YLR 1074, Muhammad Ahmad Siddiqui v. Collector Lahore District 2000 MLD 820 and Hussain Ahmed v. Pervez Musharraf, Chief Executive PLD 2002 SC 853.

11. On the touchstone of the criterion as laid down by this Court and mentioned hereinabove the factum of mala fides has been examined. After having gone through the relevant record we are of the view that the allegation of mala fides is not without substance. It ‑is worth‑mentioning that the appellant's leadership was acknowledged as "dynamic leadership" by Government of the Punjab on 5th June, 2003 and the DO letter written in this regard is reproduced herein below for ready reference: "No.SOV(LG)5‑26 of 2003 . Government of the Punjab LOCAL GOVERNMENT & RURAL DEVELOPMENT DEPARTMENT Dated: Lahore, the June 5, 2003. COUNCILLORS'S TRAINING PROGRAMME My dear Khawja Ahmad Hassaan, Through these lines I express my pleasure and gratitude on the successful conduct of a training programme for the councillors by your Town Municipal Administration. The training modules and events of the programme were well‑designed to meet the training requirements of the councillors. Such endeavours and undertakings would, undoubtedly, develop the requisite capability and capacity of the nascent Local Governments, in general, and Union Administration, in particular, apart from strengthening the new Local Government System. I appreciate your gesture and sincere efforts that were rendered in this regard. Please convey my appreciation and thanks to the members of your administration who worked really hard to impart meaningful training to the councillors. I am hopeful that under your dynamic leadership, TMA. .Data Gunj Bakhsh Town, would always rise to the occasion, as and when so required and would keep on making significant contributions towards the successful implementation of PLGO‑2001. (Emphasis provided). With Profound regards. Yours sincerely, (Naguib Ullah Malik) Kh. Ahmad Hassaan, (Esq.), Town. Nazim, Data Gunj Bukhsh Town, Town Municipal Administration, Lahore. 12: On 5‑7‑2003 vote of confidence was passed by 42 Members out of 46 which was re‑affirmed on 21‑7‑2003. Nobody knows what happened between the intervening period w.e.f. 21‑7‑2003 to 10‑8‑2003 which compelled Mian~ Azhar Javed (proposer) and Mr. Muhammad Shahzad Azam (Seconder) who moved recall motion on 11‑8‑2003 pursuant to section 63 of the Ordinance which was passed on 15‑8‑2003 and culminated into notification dated 16‑7‑2003, issued by the Government of Punjab under section 197 of the Ordinance, which is reproduced hereinbelow for ready reference: "Government of the Punjab Local Government & Rural Development Department Dated: Lahore, the 16th August, 2003. NOTIFICATION No.SOV(LG), 5‑17 of 2002 (p). whereas, on approval of no confidence motion against Town Nazim, Data Gunj Bukhsh Town, Lahore by the Town Council, Data Gunj Bukhsh Town, Lahore, the said Town Nazim has lost confidence of the House, therefore in exercise of powers conferred under section 197 (Removal of difficulty) of the Punjab Local Government . Ordinance 2001 the Government of the Punjab hereby authorizes the Town Municipal Officer, Town Municipal Administration. Data Guni Bukhsh; Lahore to operate the accounts of TMA Data Guni Bukhsh, Lahore, alongwith District Coordination Officer City District Government, Lahore as Joint Signatories to sign the pay bills/cheques for the purpose of withdrawal/disbursement 'of salaries to the staff of Town Municipal Administration. Data Gunj Buldish, Lahore and payment of utility bills from the funds of TMA concerned with immediate effect in the public interest till further orders. (Emphasis provided).

2. The Town Nazim, Data Gunj Bukhsh Town, Lahore is ceased to perform his functions till further orders: (Sd. ) NAGUIB ULLAH MALIK SECRETARY LG&RD DEPARTMENT"

13. The said Notification could not have been issued under section 197 of the Ordinance, the provisions whereof have been misinterpreted and misconstrued because the elected representative could not have been substituted with that of District Coordination Officer, City District Government of Lahore. How the Town Nazim, Data Gunj Bukhsh could be stopped to perform his duties as recall motion was yet to be voted upon by the Members of Union Councils as contemplated in section 63(4)(5) of the Ordinance. Even otherwise section 197 of the E Ordinance could not have been invoked to achieve the ouster of the Town Nazim as its main object is the removal of any difficulty which may arise in giving effect to the provisions of the Ordinance, main object whereof is "to devolve political power and decentralize Administrative and financial authority to accountable local governments for good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at grass‑roots level": The issuance of said notification smacks of mala fides because the power which was never conferred upon the Government has been exercised having no legal sanctity whatsoever behind it.

14. We have examined with care and caution, the provisions as contained in‑ subsection (3) of section 191 of the Ordinance. It seems quite inevitable because without doing it neither the vires of rule 14 of the Rules can be examined nor its exact scope and rationale behind it determined. We, being Court of law, are conscious about our limitation as well as the extent to which we can proceed. We are also aware that "the words of the statute are to be construed so as to ascertain the mind of the Legislature from the natural and grammatical meaning of the words which it has used. Viscountess Rhonda's claim (1922) 2 AC 339 at page 365, per Viscount Birkenhead, LC). "The essence of the law," writes Salmond, (Jurisprudence at p.152 (11th Edn.): "It is an elementary rule of construction of statutes that the judicature in their interpretation have to discover and act upon the mens or sententia legis. Normally, Courts do not look beyond the litera legis" "per Hidayatullah, J., in Motilal v. L.T. Commr. AIR 1951 Nag. 224, 225 "lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the Courts must be content to accept the litera legis. as the exclusive and conclusive evidence of the sententia legis. They must, in general, take it absolutely for granted that the Legislature has said what it meant, and meant what it has said. Ita Lex Scripta est is the first principle of interpretation. Judges are not at liberty to add to ox take from or modify the letter of the law simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable. It is no doubt true that the felt necessities of the times must, in the last analysis, affect every judicial determination, for the law embodies the story of a nation's development through the centuries and it cannot be dealt with as if it contains only axioms and corrolaries of a book of mathematics. A Judge cannot stand aloof on chill and distant heights. The great tides and currents which engulf the rest of men, do not turn aside in their course and pass the Judge by. But at the same time, the Judge must remember that his primary function is to interpret the law and to record what the law is. He cannot allow his zeal, say, for social or agrarian reform, to overrun his true function. He does not run a race with the Legislature for social or agrarian reform. His task is a more limited task; his ambition a more limited ambition. Of course in this process of interpretation he enjoys a large measure of latitude inherent in the very nature of judicial process. In the skeleton provided by the Legislature, he pours life and blood and creates an organism which is best suited to meet the needs of society and in this sense he makes and moulds the law in a creative effort. But he is tied by the basic structure provided by the Legislature which he cannot alter and to appeal to the spirit of the times or to the H spirit of social or agrarian reforms or for the matter of that any other reform for the purpose of twisting the language of the Legislature is certainly . a function which he must refuse to perform. (Thakorelal Amritlal Vaidya v.Gujarat Revenue Tribunal AIR 1964 Guj 183, 187).

15. It may not be out of place to mention here that "Maxwell in Interpretation of Statues (At p.7, .10th Ed. Satyanarain v. Bishwanth AIR 1957 Pat. 550, 554) quotes the following passage from Nokes v. Doncaster Amalgamated Collieries (1940)/AC at pp. 1014, 1022):‑‑ "The golden rule is that the words of ‑a statute must, prima facie, be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law; for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning .of statutory words but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. Crawford in his Statutory Construction has discussed the various ways by which the meaning of statues is to be ascertained. At page 274, he writes "The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be made of the context, and the subject matter and purpose of the enactment. After the exhaustion of all intrinsic aids, if the legislative intent is still obscure, it is proper I for the Court to consult the several extrinsic matters for further assistance. And during the consideration of the various sources of assistance, further help may, of course, be found on the use of the numerous rules of construction. Austin divided the interpretative process into three sub‑processes: (1) finding the rule; (2) finding the intention of the Legislature; and (3) extending or restricting the statute so discovered to cover cases which should be covered. DeSlovere recommended the following steps; (1) finding or choosing the proper statutory provisions; (2) interpreting the statute law in its technical sense; and (3) applying the meaning so found, to the case in hand. According to Odgers (Construction of Deeds and Statutes, 2nd Ed. At pp.289‑290 there are three methods of judicial approach to the construction of a statute, viz, (i) the Literal; (ii) by employing the golden rule; (iii) by considering the mischief that the statute was designed to obviate or prevent. Vacher v. The London Society of Compositors, 1913 AC at pp. 107, 117 (Lord Macnaghten), 121 (Lord Atkiason), 130 (Lord Moitlton), is an example of the employment of all three methods approached. The question there was whether under section 4(1) of the Trade Disputes Act, 1906, any tortuous act by trade unions was protected of only such tortuous acts as were committed in contemplation or furtherance of a trade dispute. The House of Lords took the former view and, in. delivering their opinion, Lord Macnaghten adopted the Golden Rule from Grey v. Pearson (1857) 6 HL Cas 61: 26 LT Ch. (473) Lord Atkinson followed the literal approach and the case of Cooke v. Charles A. Vageler (1901 AC at pp.102, 107) while Lord Moulton discussed the history of the statute and applied the mischief method. "

16. The judicial consensus in this particular sphere seems to be that "the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical constriction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two construction one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct, Kanai Lal v: Parannidhi, 1958, SCR 360, 367, AIR 1957 SC 907; 910‑11; Municipal Board Rajasthan v. S.T.A. Rajasthan AIR 1955 SC 458, 464; Bootamal v. Union of India, AIR 1962 SC 1716, 1718, 1719; Sirajul Haq v. S.C. Board, AIR 1959 SC 198; 205; (1857) 6 HL Cas 61, 26 LT Ch. 473, 1901 AC at pp. 102, 107, Collector of Customs, Baroda v.Digvijayasinhji, etc. Mills, AIR 1961 SC 1549, 1551; Shri Ram v. State of Maharashtra, AIR 1961 SC 674, 678, AIR 1950 SC 165, 168; Madan Lal v. Changdeo Sugar Mills, AIR 1958 Bom 491, 495,AIR 1954 SC 749, (1955) 1 SCR 829, 836‑7, AIR 1955 SC 376, 381, AIR 1955 SC 504, Jamat‑I‑Islami v. Federation of Pakistan PLD 2000 SC 111; Muhammad Iqbal v. Government of Punjab PLD 1999 SC 109; Province of East Pakistan v. Noor Ahmad PLD 1964 SC 451; Collector of Sales tax v. Superior Textile Mills Ltd. PLD 2001 SC 600; Shujat Hussain v. State 1995 SCMR 1249; Province of Punjab v. Munir Hussain Shah 1998 SCMR 1326; Interpretation of Statutes 7th Edn. 1984 by Dr. Tahir Mahmood; Understanding Statutes Canons of Construction, 2nd Edn. by S.M. Zafar; The Interpretation of Statutes by M. Mahmood and Craies on Statutes Law, 7th Edn. by S.G.G. Edgar.

17. Moreover, it must be assumed that the Legislature intended to correct the evils which led to the law's enactment. It is logical to assume, in a democracy, that the needs and the desires of the people will find expression in the enactments of the Legislatures consisting of representatives of the people. If this were not so, then there would be little, if any, justification for resorting to the circumstances surrounding the enactment of a law in an effort to ascertain the legislative intent. (Crawford : Statutory Construction at pp.368, 369).

18. All the proceedings initiated against the appellant which culminated into completion of first phase have been examined in the light of above mentioned discussion and on the touchstone of the criterion as laid down in section 63(1) of the Ordinance which is reproduced hereinbelow for ready reference:‑‑ "

63. Internal recall of a Tehsil Nazim.‑‑‑(l) If in the opinion of a member of the Tehsil Council there is a reason to believe that the Tehsil Nazim is acting against, the public policy or the interest‑of the people or is negligent or is responsible for loss .of opportunity to improve .governance and the delivery of services, he may be seconded by another member of the Council, give a notice to move a motion .in the Tehsil Council through Naib Tehsil Nazim, for recall of Tehsil Nazim."

19. A bare perusal would reveal that section 63(1) of the Ordinance, has been couched in a simple and plain language and no scholarly interpretation is called for but the significance and import of certain words used therein cannot be ignored as it depicts that unbridled and unfettered powers/discretion have not been conferred upon the Member to move a recall motion whenever he so desires. In other words it does; not depend upon the whims and wishes of a particular Member to move recall motion but it is subject to certain conditions which are as under:‑‑ (a) Formation of opinion which surely means an independent assessment based on the consent which should be free from any temptation, coercion, inducement, undue influence and in the interest of public. (b) If it is motivated by any other factor as mentioned hereinabove, it would not be a fair opinion.

20. In the same wake of events we have considered the conduct of Mian Azhar Javed (proposer) who moved the recall motion and Mr.Muhammad Shahzad Azam who stood seconder. A bare perusal of the relevant proceedings would reveal that Mian Azhar Javed kept mum and failed to utter even a single word in support of recall motion and such conduct is not only unusual against human behaviour but highly critical. We may point out that it does not depend on the whims and wishes of the Member to move such a motion unless in "his opinion" there is a "reason to believe" that the Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for O loss of opportunity to improve governance and the delivery of services. Mr. Muhammad Shahzad Azam by whom the motion was seconded has highlighted the background and circumstances which compelled him to support the motion. He mentioned in a categoric manner that he was. apprehending danger to his life and stated that all the allegations levelled against the appellant were baseless. While addressing the house on recall motion, he expressed his views as follows:‑‑

21. The said views as expressed by Mr. Muhammad Shahzad Azam is indicative of the fact that the motion was never seconded voluntarily but on the contrary it was result of threat, coercion, inducement, harassment and dictation. In the same wake of events it has been observed that the rules were framed and made applicable with immediate effect in violation of the provisions as contained in section 191(3) of the Ordinance which makes publication of such rules mandatory in the official gazette before it could be made applicable. The rules were admittedly published in the official gazette on 18‑9‑2003 but the Government of. Punjab issued Notification No.SOV(LG)5‑17/2002(P) data: 16‑8‑2003 whereby an elected representative was substituted with that of a bureaucrat which not only depicts mala fides but an indecent haste as well. The said notification was, however, withdrawn by another notification dated 2nd September, 2003. The withdrawal of said notification leads us to draw the inescapable conclusion that the issuance of earlier notification was mala fide and unlawful. It is worth‑mentioning that the recall motion has two phases before it could attain finality as laid down in section 63 of the Ordinance. The recall motion could only be completed after its approval by the Union Councils in term of section 63(4) of the Ordinance and until completion of that process the appellant could not have been ousted from the office and accordingly the said notification could not have been issued. In fact no opinion was formulated by the proposer and seconder which in fact was based on extraneous considerations such as inducement, coercion and registration of false and fake cases. The speech of the seconder reflects a clear picture of the compelling circumstances which forced him to support the recall motion. The foundation of the entire edifice is based on mala fides and coercion which must fall on the ground being in grave violation of the object and reason of the Ordinance specially the provisions as contemplated in section 63 of the Ordinance: It is a severe blow on the new adverted system which otherwise is not flawless and would collapse if such illegal, immoral, undemocratic and dishonest practice is allowed to be continued. The democratic values must be protected to save the system which otherwise is crumbling for certain obvious reasons. It must not be lost sight of that no such opinion could be formulated unless and until the Member has "reason to believe" that Tehsil Nazim is acting against the public policy or the interest of the people or is inefficient being negligent to perform his functions including good governance or his failure to fulfill the genuine expectations of the voters of the area. The opinion so formulated must be based on some reasoning. If the opinion of a Member is free from bias, mala fides, ulterior motives, illegal gains, temptation, coercion, harassment, political motivation and mischief, it would not be justiciable otherwise it could be looked into subject to certain exceptions. A free and fair opinion formulated in accordance with the parameters as laid down in section 63 of the l Ordinance would not be justiciable except as mentioned.

22. In the said background we have also adverted to section 191 of the Ordinance which runs as follows:‑‑ "

191. Rules.‑‑(1) The Government may, by notification in the official Gazette make rules for carrying out the purposes of this Ordinance. (2) In particular and without prejudice to the generality of the fore going power such rules may provide for all or any of the‑matters specified in Part I of Fifth Schedule. (3) The rules made under subsection (1) shall be subject to previous publication in the official Gazette and shall meet the following considerations:‑‑ (a) consistency with democratic decentralization and subsidiarity; . (b) enhancement of welfare ,of the people; . (c) fairness and clarity; and (d) natural justice and due process of law.

23. A bare perusal would reveal that Government has been empowered to frame rules but the power so conferred upon the Government is not unlimited but subject to certain prerequisites and conditions which are as under:‑‑ (i) The rule may be framed for carrying out the purpose of the Ordinance i.e. to devolve political power and decentralize administrative and financial authority to , accountable local governments for good governance, effective delivery of services and transparent decision making through institutionalized Q participation of the people at grass‑roots level. (ii) The legislation has made it obligatory by using the word "shall" in section 191(3) that the rules so framed must meet certain considerations such as consistency with democratic decentralization and subsidiarity, enhancement of welfare of people, fairness and clarity and natural justice and the process of law.

24. In the light of scenario as portraited hereinabove we intend to examine the provisions as contained in rule 14 of the Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 to determine as to whether the same are in consonance with the conditions as enumerated in section 191 of the Ordinance as mentioned above being subordinate legislation. It would not be out of context to mention here that "the initial difference between subordinate legislation arid statute law lies in the fact that a subordinate law‑making body is bound by the terms of its delegated or derived authority, and that Courts of law, as a general rule, will not give effect to the rules, etc. thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the Courts the validity of delegated legislation as a general rule can be. The Courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed". Institute of Patent Agents v. Lackwood [ 1894] AC 347, 359, 360, 364, 365. (2) In the absence of express statutory provision to the contrary, may inquire whether the rule‑making power has been exercised in accordance with the provisions of the statute by which it is created either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation". (Cf. London Traffic Act, 1924, S.10(3), which provided for maximum penalties, Ilbert, Legislative Methods and Forms (1901), p.310) and it follows that the Court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials."

25. It must be kept in view that "when the legislature confers power on Government to frame rules it is expected that such powers will be used only bona fide, in a responsible spirit and in the true interest of the public and in furtherance of the object for the attainment of which such powers were conferred". (Land Realization Co. Ltd. v Postmaster-General (1950) 66 TLR (Pt. 1) 985, 991, per Romer, J. (1950) Ch.

435. It is to be noted that rule‑making authority which falls within the ambit of subordinate legislation as conferred upon the Government by virtue of section 191 of the Ordinance is neither unlimited nor unbridled and the limitations as mentioned in section 191 of the Ordinance must be adhered to in letter and spirit.

26. In India the subject has been discussed in extenso by the Judges of the Supreme Court in Delhi Laws Act, 1912, etc. (1951 SCR 747) Mr. Justice Mukherjea observed therein at p.997:‑ `It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the Legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The Legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it.'

27. It is well‑settled "that Rules made under a statute must be treated for all purposes of construction or application exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction and application. Such Rules cannot be treated as administrative directions. Harilal v. Dy. Director of Consolidation, 1982 All. LJ

223. They continue to be rules subordinate to the Act, and though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost. Chief Inspector of Mines v. K.C. Thapar, AIR 1961 SC 838,

845. The rule of interpretation is that if subordinate legislation is directly repugnant to, the general purpose of the Act which authorizes it, or indeed is repugnant to any well‑established principle of statute ...., it is either ultra vires altogether, or must, if possible, be so interpreted as not to create an anomaly. (Allet: Law and order, at p.133). If reconciliation was found to be impossible between the section and the rules made thereunder and the latter is found to be in excess of the statutory power authorizing them, the subordinate provision, the rules so made, must give way and such rules shall be held to be ultra vires the rule‑making authority. But before, we go to that length, we will have to struggle against such a construction and will have to make an effort within the bounds of reason to bring them within the, ambit of the rule‑making power if that can be possibly so done. This is because when a competent authority entrusted with the task of making rules, exercises that power, the rules made by it should be as far as possible supported even by a `benevolent' interpretation, particularly when the result of holding otherwise would be to give rise to a conflict of jurisdiction. (Narasimha Raju v. Brundavanasaha AIR 1943 Mad. 617, 621; Aribam Pishak Sharma v. Aribam Tuleswer Sharma AIR 1968. Manipur 74".

28. It is worth‑mentioning that "Rules, which must be read together with the Act under which they are made, cannot repeal or contradict express provisions in the Acts from which they derive their authority, and if the Act is plain, the rule must be interpreted so as to be reconciled with it, or, if it cannot be reconciled, the rule must give way to the plain terms of the Act. (Quoted James, LJ in ex parte Davies, (1872) 7 Ch.A. 526, 529, "New Sindh" AIR 1942 Sind 65, 71 (SB)."

29. It is a well‑recognized principle of interpretation of statutes that if the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to. (Barisal Cooperative Central Bank v. Benoy Bhusan AIR 1934 Cal.537; Municipal Corporation v. Saw Willie,‑AIR 1942 Rang 70, 74)".

30. In the case of statutory rules the Court can always examine the question as to whether the same are inconsistent with the statute under which they are. made. In this regard we are fortified by the dictum laid down in Hazrat Syed Shah Mustarshid Ali Al‑Quadari v. Commissioner of Wakfs AIR 1954 Cal. 436. .

31. A rule‑making body cannot frame rules in conflict with or derogating from the substantive provisions of the law or statute, under which the rules are framed. No doubt that the rules‑making authority has been conferred upon the Government but "a rule, which the rule‑making authority has power to make will normally be declared invalid only on the following, grounds:‑‑ (1) Bad faith, that is to say that powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorized or actually forbidden; (2) that it shows on its face a misconstruction of the enabling Act or a failure to comply with the conditions prescribed under the Act for the exercise of the powers; and (3) that it is not capable of being related to any of the purposes mentioned in the Act. (Shankar Lal Laxmi Narayan Rathi v. Authority under Minimum Wages Act, 1979 MPLJ 15 (DB). Rules cannot go beyond the scope of the. act M.P. Kumaraswami Raja AIR 1955 Mad. 326 nor can they, by themselves, enlarge the scope of statutory provisions. K. Mathuvadivelu v. RT Officer, AIR 1956 Mad.

143. They cannot also militate against the provision under which they were made. (Kashi Prasad Saksena ro. State of U. P. AIR 1967 All. 173.

32. There is no cavil with the proposition that "the power of rule making is an incidental power that must follow and not run parallel to the present Act. These are meant to deal with details and can neither be a substitute for the fundamentals of the Act nor can add to them. PLD 1975 Azad J&K 81 = PLJ 1975 Azad J&K

89. There are two main checks in this country on the power of the Legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self‑effacement. The only requirement of law in such situations is to insist that the subordinate body charged with the duty of making rules must strictly confine itself C within the sphere of its authority for the exercise of its subordinate C legislative power and in each case it is the duty of the Courts in appropriate proceedings to be satisfied that the rules and regulations so made are:‑‑ (a) by the authority mentioned in the Act, and (b) that they are within the scope of the power delegated therein. (PLD 1966 Lah. 287).

33. Keeping in view the said background we propose to examine the vires of rule 14 which is reproduced hereinbelow for ready reference;‑‑ "

14. Power of Election Authority to pass restraining order.‑‑(1) When the motion for recall of a Nazim or Naib Nazim of a Council has been approved under sections 24(4), 47(4), 62(2), 63(4), 72(4), 84(2) or 85(4), the Election Authority may restrain that Nazim or Naib Nazim from performing his functions till the declaration of result of the votes to be cast by the members of the respective councils so as to prevent misuse of power by the Nazim or the Naib Nazim as the case may be and ensure free and fair exercise of right of vote by the members entitled thereto. (2) Where the Election Authority restrains a Nazim or Naib Nazim from performing his functions under sub‑rule (1), the Government may during the said period nominate any officer to perform his functions."

34. We have minutely examined the provisions as contained in rule 14 of the Rules, reproduced above, and we are of the considered opinion that it is not in consonance with section 191 of the Ordinance as the main object of the framing of such rule was to kick out certain Nazims. The inordinate delay which occurred in framing of rules leads us to draw the only irresistible conclusion that its enactment with promptitude at a particular juncture was to use it against certain "undesirable Nazims". The said view finds support, from the fact that the rules were used without getting it published in the official gazette which was sine qua non prior to its promulgation. The rules have not only been framed in a haphazard manner but it depicts indecent haste as well. We don't want to provide any guideline qua framing of rules which falls within the exclusive jurisdictional domain of the Government and besides that a comprehensive guideline has been provided under section 191 of the Ordinance itself as well as in the preamble. The provisions ‑as contained in the rules are not only in consonance but also in violation of the provisions as contained in section 191 of the Ordinance. Everything has been incorporated in the rules except consistency with democratic decentralization, enactment of welfare of the people, fairness and due process of law. The Election Authority has been blessed with all the powers which were never conferred upon it by the Ordinance. How a bar/restrain could have been imposed by the Election Authority on Nazims and Naib Nazims being public representatives from performing their functions? How the Government could nominate any bureaucrat to perform such functions which are required to be performed by an elected person.

35. It must not be lost sight of "that. Rules made ‑under any Act could never be intended to override the specific provisions of the Act E itself. The purpose of the Rules is to provide for procedural matter or E matters which are subsidiary to the provisions of the Act. (Shanta Prasad v. Collector, Nainital 1978 All. LJ 126; Dattatraya Narhar Pitale v. Vibhakar Dinka Gokhale 1975 Mah.LJ 701 (FB); Narayanan v. Food Inspector, Calicut Corporation 1979 Ker LT

469. They may in some cases explain the provisions of the Act and it might in certain cases be legitimate to read the rules alongwith the provisions of the Act in order to find out the true intention of the Legislature in enacting the latter, no rules can ever .be construed to override the specific provisions of the Act itself. Ganpat v. Lingappa AIR 1962 Bom 104, 105; Adarsh Industrial Corporation v. Market Committee, Karnal AIR 1962 Punj 426, 430 (Tek Chand, J.), Devjeet v. Gram Panchayat AIR 1968 Raj LW

231. Although rules made under the Act cannot override the Act, they maybe used as contemporance expositio of .an ambiguous provision in the Act, specially when they are to have effect as if enacted in the Act." Shri Synthetics, Ltd., Ujjain v. Union of India 1982 Jab LJ 279; 1982 MPLJ 340 (DB); Central Bank of India v. Their Workmen AIR 1960 SC 12). 36. "It is a well‑recognized principle of interpretation of statutes that if the rules framed under the statutes, or bye‑laws framed under the rules, are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then these provisions must be regarded as ultra vires of the statute and cannot be given effect to. (Barisal Cooperative Central Bank v. Benoy Bhusan, AIR 1934 Ca1.537, 540).

37. It is well‑entrenched legal proposition that "the rules made in pursuance of a delegated authority must be consistent with the statute under which they came to be made. The authority is given to the end that the provisions of the statute may be better carried into effect, and not with the view of neutralizing or contradicting those provisions. (Rajam Chetti v. Seshayya ILR 18 Mad.236, 245, Raghanallu Naidu v. Corporation of Madras, AIR 1930 Mad.

648. Rules framed under the rule‑making power given by an Act should not be repugnant to the Act and in case of conflict between the rules and the Act, the Act should prevail. (Central Karnataka Motor Services, Ltd.. v. State of Mysore AIR 1957 Mys 7). The general power to make rules cannot, however, be used, to widen the purposes of the Act or to add new and different means for carrying out or to depart from, and vary its terms. Shankarlal Laxminarayan Rathi v. Authority under Minimum Wages Act, 1979 MPLJ 15(DB). 38. "Where a Court is required to determine whether a piece of delegated legislation is bad on the ground of arbitrary and excessive delegation, the Court must bear in mind the following well‑settled principles: (1) The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and this cannot be delegated by the Legislature. (2) The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. (3) Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not interfere. (4) What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of a particular Act with which the Court has to deal, including its Preamble. (5) The nature of the body to which delegation is made is also a guidance in the matter of delegation. (6) What form the guidance should take, will depend upon the circumstances of each statute under consideration, and cannot be stated in general terms. In some cases guidance in broad general terms may be enough, in other cases more detailed guidance may be necessary." Organ on (India), Ltd. v. Collector of Excise, Mandsaur 1977 MPLJ 118‑b(DB).

39. The rules may be declared ultra vires if the same are not made, sanctioned, published in the manner prescribed by the enactment repugnant to it, uncertain or unreasonable, bad faith, misconstruction of the enabling Act, failure to comply with the conditions prescribed under the enactment and violation of the object and reasons of the enactment.

40. The scope and power to make rules has been examined by Mr. S.M. Zafar in his book "Understanding Statutes at page 772 as follows:‑‑ "It is a recognized principle of law that the rules made in pursuance of a delegated authority must be consistent with the statute, under which they came to be made. The authority is given to the end that the provisions of the statute may be better carried into effect, and not with the view of neutralizing or contradicting those provisions." (Rajam Chetti v.Seshayya ILR 18 Mad.236, 245, Raghanallu Naidu v. Corporation of Madras AIR 1930 Mad. 648. "Rules framed under the, rule‑making power given by an Act should not be repugnant to the Act and in case of conflict between the Act and the rules the Act should prevail." (Central Karnataka Motor Services Ltd. v. State of Mysore AIR 1957 Mys 7; PLD 1967 Kar. 618). "The general power to make rules cannot however, be used, to widen the purposes of the Act or to add new and different means for carrying out or to depart from, and vary its terms. " (Shankarlal Laxminarayan Rathi v. Authority under Minimum Wages Act 1979 MPLJ 15). "If the power can be found elsewhere than the section quoted, the rule will be referred to that power and held not to be ultra vires." (Secretary of State v. Appurao AIR 1924 Mad. 24; King Emperor v. Shirallabh AIR 1925 Nag. 393; Hukam Chand Mills v. State of MP AIR 1959 MP 195, 196). "When rules are framed they may be referred to any power in the Act which validates them." Gulabbai v. Board of Revenue AIR 1957 MP 43). "Where an authority passes an order which is within its competence it cannot fail merely because it purports .to be made under a wrong provision if it can be shown to be within its powers under arty other rule." Bala Kotiah v. Union of India AIR 1958 SC 232, Prem Shankar Sarnia v. Collector 1962 Jab LJ 997): "Provided that the law‑making body had authority to make it under some other provision of law misquoting its authority by; oversight or mistake does not take away any authority given by law." Raghanalu Naidu v. Corporation of Madras AIR 1930 (sic) 648, 650). "In order to justify a rule the rule itself need not show on its face under what particulars section of Act it is being made. So long as the rule, can be justified under the rule‑making power, the non‑recital of the fact that it has been so made, will not make the rule bad or invalid. (Brojendra Kumar v. Union of India AIR 1961 Cal. 217, 220).

41. In the light of what has been discussed hereinabove, we have no hesitation in our mind after having examined the provisions of rule 14 of the rules, that it is not inconsistent with the provisions of section 63 of the Ordinance. There .is neither any logic nor reasoning behind such substitution as allowed by the rules whereby a public functionary can be substituted with that of a bureaucrat. The speculative misuse of powers can be prevented by invoking the provisions as contained in section 63(4) of the Ordinance which provides that if the motion referred to in subsection (1) of section 63 is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the Tehsil. It can be done within a short span of time, which would eliminate the possibility of misuse of power of Nazim or Naib Nazim. The second phase concerning the recall motion as envisaged in section 64(4) of the; Ordinance which otherwise should be completed at the earliest enabling the house to elect the new Nazim which would be in the interest of public and moreso, there would be no occasion for suspicion/doubts, abuse of authority and misuse of power. The subordinate power of framing rules granted by the statute cannot be exercised to override the express provisions of the statute itself, therefore, rule 14 of the Rules is ultra vires of the Punjab Local Government Ordinance and cannot be given effect to. It is well‑settled by now that "a statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates; the rule must yield to the statute. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule‑making authority and the rules framed under an enactment must be consistent with the provision of said enactment. The rules framed under a statute, if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid. The Rule‑making authority cannot clothe itself with power which is not given to it under the statute and thus the rules made under a statute, neither enlarge the scope of the Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force:" Pakistan v. Aryan Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR370; Ziauddin v. Punjab Local Government 1985 SCMR 365; Hirjina Salt Chemicals (Pak) Ltd. v. Union Council Gharo 1982 SCMR 522; Mehraj Flour Mills v. Provincial Government 2001 SCMR 1806 and Collector of Sales Tax v. Superior Textile Mills Ltd. PLD 2001 SC 600

42. It hardly needs any explanation that contemporaneous events may constitute an important extraneous side to the construction of a statute. The concept of such events embraces the history of the period when the statute was enacted, including the history of the statute itself, the previous state of the law, and the mischief or evil against which the statute was aimed as a remedy. In an over‑all sense, contemporaneous events are the relevant conditions existing at the time of adoption of the law. As such, they may be consulted for the purpose of removing ambiguities in the language of an obscure Act. To know the mischief to be remedied or the course or necessity of a law, is to accomplish much of the task of knowing the true meaning. As Blackstone said, "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislators to enact it. (BI Comm 61). It may not be out of place to mention here that after having examined the prevalent circumstances, as discussed in the preceding paragraph, we are of the view that framing of rule was not a bona fide exercise. "It would be a grave departure from well‑recognized legislative practice and it would be a mockery of the Legislature if the existence or efficacy of the provisions of a statute is left to the kind mercies of the rule‑making powers of the Government. No interpretation favouring such a construction could commend itself to Courts. It is something revolting to our jurisprudence to imagine that the command of the Legislature could be overridden by the fiat of the Government. " Rama Rao v. Mund Kur AIR 1960 Mys 313, 314 (Hegde, J).

43. In the light of what has been stated hereinabove we are of the view that rule 14 is ultra vires being contrary to the provisions as envisaged in section 63 of the Ordinance and without legal effect. The provisions as enumerated in section 63 of the Ordinance is not repugnant to the Constitution and is a valid piece of legislation.

44. We must no lost sight of that "democracy at grass‑roots level is altogether a new experience democratic system which has its own peculiar characteristics, alien to it as borrowed from different countries by ignoring the ground realities, completion of necessary infrastructure, spade work and resultantly neither it could deliver the goods nor desired results. Keeping in view the past experiences made by different regimes "we have t6 evolve a system which begins at the beginning and after building a strong base goes on to construct the structure above. It has to be different from the system which seemingly failed and under which a beautifully trimmed structure with all the frills of parliamentary democracy, but hollow from within, was to be suspended from above without any base below on which to rest. Such a system was bound to fail sooner or later because it was unrelated to local conditions. In this connection it is worth‑recalling Sydney Webb's remarks. He said, that any system of government, however mechanically perfect, would fail to take root in the midst of the mass of people, unless it was in some way grafted on the spontaneous grouping of the people themselves. In Pakistan, it broke down sooner than later because it was neither mechanically perfect nor were the mechanics sufficiently qualified to look after it. If Pakistan is to be a real democracy, then all her inhabitants must have a say in their affairs. With the prevailing level of political consciousness they can fully understand their immediate problems and requirements and evaluate what is of immediate good and what is not. There is little reason, therefore, why advantage of this should not be taken by involving them in the management of their affairs through directly chosen representatives. For a villager it is, perhaps, not possible to assess with any degree of accuracy the qualities and disabilities of rival candidates from distant cities who may make periodic appearances at the time of elections, but he is surely a good Judge of a fellow villager who may canvass for his vote for a local council." The said goal can only be achieved if there is no politically motivated interruption and interference from any quarter whosoever it may be. It would not be in the interest of anybody to blame any quarter for its failure specially in the law and order context which hardly needs any elaboration in view of alarming deterioration and it is high time to let the newly‑evolved system work freely without any political and bureaucratic interference or interruption of any kind whatsoever. The newly‑evolved system and all the new laws and rules made to make it functional need an independent, impartial and thorough review as drastic changes would be needed to achieve the desired results.

45. In sequel to above mentioned discussion the entire proceedings initiated against the appellant being mala fide are set aside being unlawful and without legal effect. The entire proceedings, which culminated into first recall motion, are accordingly quashed. We are conscious of the fact that the appellant had lost the confidence of majority, and thus proceedings qua recall motion as enumerated in section 63 of the Ordinance may be reinitiated if so desired by the House subject to all legal exceptions. M.B.A./A‑53/S Order accordingly.