P L D 1961 (W (PLP)

SHABIR AHMAD, J.‑This petition has been presented by Sheikh Abdur Rahman, an Advocate .of Bahawalnagar, under Article 2 (4) of the Laws (Continuance in Force) Order, 1958, for the issue of an appropriate writ which would make inopera tive the resolution of the District Council, Bahawalnagar, regard ing his removal from membership of the Union Committee A, Bahawalnagar, and the consequent order passed by the Collector, Babawalnagar District, under Article 25 of the Basic Democracies Order (President's Order No. 18 of 1959), disqualifying him from being a member of any Local Council for five years. Originally there were only two respondents to the petition, namely, the Collector, Bahawalnagar, and the District Council, Bahawalnagar but subsequently the petition was amended in some respects and a number of other persons were impleaded as respondents. All the respondents put in written statements controverting the claim of the petitioner to the issue of a writ for the purpose for which the writ was sought.

2. The facts material for the purposes of the disposal of the petition may be briefly stated. The petitioner was elected a member of the Union Committee A, Bahawaluagar, as one of its five members and was subsequently elected as its Chairman. By virtue of his election as Chairman of the Union Committee, the petitioner automatically became an "elected member" of the Municipal Committee, Bahawalnagar. On the 31st of December 1960, the Collector, Bahawaluagar, who is the controlling authority for the Union Committee of which the petitioner had been elected a member, and subsequently the Chairman, served on him a notice under Article 25 (2) of the Basic Democracies Order, 1959, to show cause why he should not be removed from member ship of the Union Committee on the following grounds:‑ (i) That he had failed to hold any meeting of the Union Committee A, Bahawaluagar, from February till November 1960; (ii) that this behaviour and conduct towards members had been objectionable; and (iii) that he appeared in the discharge of his duties to have abused his powers to the detriment of the other members. The petitioner sent his reply wherein he requested the Collector, Bahawalnagar, to hold an inquiry into the charges levelled against him which he said were too vague in character. On the 27th of January 1961, the Collector made a reference to the elected member of the District Council, Bahawalnagar, under rule 4 (3) of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960. The matter was to be considered by the District Council, Bahawalnagar, on the 2nd of February 1961, and a decision had to be arrived at with regard to the action that should be taken against the petitioner under clause (4) of Article 25 of the Basic Democracies Order, 1959. The petitioner sought to have the intended meeting of the District Council, BahawaInagar, declared invalid and for that purpose presented Writ Petition No. 81 of 1961 which was dismissed at a preliminary hearing on the 2nd of February 1961, on the ground that it was premature. On the '2nd of February 1961, the majority of the members of the District Council, Bahawalnagar, passed a resolu tion that the petitioner be removed from membership of Union Committee A, Bahawalnagar. Some objections appear to have been raised before the Collector, Bahawalnagar, regarding the proceedings of the meeting of the District Council held on the 2nd of February 1961 whereupon the matter was again referred by the Collector to the District Council. The District Council met on the 17th of February 1961, and passed a resolution con firming their resolution dated the 2nd of February 1961. Upon this acting under clause (5) of Article 25 of the Basic Democracies order, 1959, the Collector passed an order that the petitioner was disqualified for five years from being elected a member of a Basic Democracy. It is with the object of having the resolution of the District Council, Bahawalnagar, and the order of the Collector, Bahawalnagar, made ineffective that the Writ Petition has been presented, though in the prayer clause of the petition no reference has been made to the order of the Collector, Bahawalnagar.

3. The first contention raised by learned counsel for the petitioner was that the procedure followed by the District Council, Bahawalnagar and the Collector, Bahawalnagar, regarding the case of the petitioner contravened the provisions of Article 25 of the Basic Democracies Order, 1959, and, consequently, the entire proceedings which had culminated in the removal and disqulification of the petitioner were illegal, void and inoperative. In order that the argument of learned counsel for the petitioner be clearly understood, it appears desirable to reproduce Article 25 of the Basic Democracies Order, 1959, here. This Article, in its original form, stood as follows: "(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 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 misconduct in the discharge of his duties as a member, or has been responsi ble 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 inquiry 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. (4) An elected member of a local council shall not be removed from such membership unless, at a special meeting t9 be convened for the purpose in accordance with the rules made by competent authority, a resolution to the effect that he is liable to be removed under this Article is passed‑ (a) in the case of a member of a Union Council or a Town Committee, by a majority of the representative members of the Thana of Tehsil Council concerned; (b) in the case of a member of a Union Committee by a majority of the representative members of the municipal body or the Cantonment Board concerned ; and (c) in the case of a member who is the Chairman of a Union Council or a Town Committee, or of a Union I Committee, and is ex‑officio a member of a Thana or Tehsil Council, or of a municipal body or a Cantonment Board, by a majority of such members of the District Council concerned as are the Chairmen of the Union Councils, of the Town and Union Committees, and of the Municipal bodies in the District and the Vice‑Presidents of the Cantonment Boards therein; and on the passing of such resolution, the member shall stand removed. (5) A person removed under this Article shall cease to be a member of every local council of which he may be a member, and shall not be eligible for election or appointment to any local council for such period, not exceeding five years, as the Controlling Authority of the local council from which he is removed may fix in each case, (6) Nothing in this Article shall apply to any official member. (7) No Court shall have jurisdiction to inquire into or question the validity of anything done, or any order made, or resolution passed under this Article." It may be mentioned here that the expression "local council" occuring in the above‑reproduced Article has been expressed in clause (24) of Article 3 of the Basic Democracies Order (President's Order No. 18 of 1959) to mean a Council constituted under the order and to include a Town Committee and a Union Committee but not to include any such Committee as is mentioned in Article 30 of the Order, namely, a Union Development Committee, nor a Development Council. An amendment was made in Article 25 as it originally stood by section 4 of President's Order 14 of 1960 [Basic Democracies (Amendment) Order, 1960], whereby clauses (1‑A) and (I‑B) were added after clause (1) and some changes were made in clause (5) of Article

25. Section 4 of the Basic Democracies (Amendment) Order, 1960 is in the following terms:‑ "In the said Order, in Article 25,‑ (a) after clause (1), the following two new clauses (I‑A) and (1‑B) shall be inserted, namely:‑ (1‑A) A person shall on the acceptance of his resignation from the membership‑ (a) of a District Council, if he be the Vice‑Chairman of a Municipal body or the Vice‑President of a Cantonment Board, cease to be such Vice‑Chairman or Vice‑President ; (b) of a Thana or Tehsil Council, if he be the Chairman of a Union Council or a Town Committee cease to be such Chairman. (1‑B) If any Chairman of of a Union Committee who, under the provisions of this Order, is a member of a Municipal body or a Cantonment Board, resigns from such membership, then, on his resignation being duly accepted, he shall cease to be the Chairman of Union Committee ; and (b) in clause (5),‑ (i) after the words ' every local council ' the commas and words' Municipal body, or other local authority' shall be inserted ; and (ii) after the words ' any local council ' the commas and words 'Municipal body, or other local authority ' shall be inserted."

4. Sardar Muhammad Iqbal, Advocate, learned counsel for the petitioner, contended that as worded clause (2) of Article 25 of the Basic Democracies Order, 1959, could only mean that action under the clauses succeeding this clause could be taken if all or any of the things mentioned in clause (2) were definitely proved‑ to exist and before they could be proved to exist there should be a clear finding by some authority that they existed. When asked to state which authority should arrive at the conclusion that the things mentioned in clause (2) of Article 25 of the Basic Democracies Order, 1959, existed, learned counsel replied that no provision had been made in the Order regarding such authority and, therefore, it was incumbent on the person empowered by Article 89 of the Order to make Rules to make a provision regarding the authority which was to give a finding before the body mentioned in clause (4) of Article 25 of the Order could consider the case of an elected member of a Basic Democracy for removal from membership. He pointed out that the Rules which appeared as West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, 'in the Gazette of West Pakistan Extra ordinary dated the 11th of June, 1960, made no provision regard ing the authority competent to take action under clause (4) of Article 25 of the Basic Democracies Order, 1959, and, therefore, either no elected member could be removed till such provision were made or the Collector of the District concerned would be competent to hold a preliminary inquiry for arriving at the conclusion whether or not a person whom it was sought to remove from his elected membership of a local council should be proceeded against or not. I have considered the contention raised by Sardar Muhammad Iqbal regarding the second clause of Article 25 of the Basic Democracies Order, 1959, but find myself unable to accept it. It is inconceivable that the intention of the law‑maker was that even after it had been decided by an authority which had held a regular inquiry for that purpose that an elected member of a Local Council had been guilty of misconduct, it should remain open to the body competent to pass a resolution under clause (4) of Article 25 of the Basic democracies Order, 1959, to disregard that finding and to pass a resolution that the member should not be removed. This would be giving that body so much power in this regard, that I would not be prepared to infer that this power had been given unless the words used were not open to the interpretation that it was not. The language used in the five clauses of Article 25 of the Basic Democracies Order, 1959 is not at all open to the construction that before the matter could go to the body competent to pass a resolution under clause (4) of Article 25, a definite finding after a detailed inquiry should have been given that the member whose case for removal was to be considered had been guilty of all or any of the things mentioned A in clause (2) of Article

25. Consequently, I am of the view that the meaning of clause (2) of Article 25 of the Basic Demo cracies Order, 1959, is that if the Collector of the District was of the opinion that the petitioner was liable to be removed under Article 25 of the Basic Democracies Order, 1959, he could move the District Council to consider the question and if they passed a resolution that that action was called for, the petitioner stood removed. The procedure detailed by me was undoubtedly followed in the present case and, therefore, I find no force in the contention that the resolution of the District Council regarding the petitioner's removal from membership and the consequent order of the Collector, Bahawalnagar, disqualifying the petitioner from seeking membership of an elective body for a period of five years were void, illegal and inoperative. The first contention of Sardar Muhammad Iqbal, Advocate learned counsel for the petitioner, is therefore, repelled.

5. The second contention of Sardar Muhammad Iqbal was that as the petitioner had become an elected member of the Municipal Committee of Bahawalnagar, the Collector of that District could not refer his case to a District Council because not that officer but the Commissioner of Division in which Bahawal nagar was situate was the Controlling Authority. In this connection he relied on the provisions of the Municipal Administration Ordi nance (X of 1960) wherein the "Controlling Authority" is defined in clause (10) of section 3 to mean the Government in some cases and the Commissioner in some others, and the name of the Collector does not figure at all in that connection. In so far as it said that a Collector of a District is not a Controlling Authority for the purposes of the Municipal Administration Ordinance, the contention of Sardar Muhammad Iqbal is uncontrovertible but the fact that the argument is correct with regard to the part detailed above does not lead to the conclusion that it is correct in all respects. For the determination of the question whether or not the argument of learned counsel for the petitioner is correct with regard to the material question that arises on his argument namely that a person who became an elected member of a Muni cipal Committee cannot be removed from membership of the Municipal Committee unless the case against him were referred for consideration to the appropriate body by the Commissioner of a Division, 'one has to consider the provisions of section 16 of the Municipal Administration 'Ordinance, 1960. This section reads as follows :‑ "

16. Removal of members.‑(1) A member shall render himself liable to removal from membership,‑ (a) if he incurs any of the disqualifications specified in PartII of the second Schedule to the Order ; (b) If be, without reasonable excuse, absents himself from three consecutive meetings of the Municipal Committee ; or (c) If he is guilty of an abuse of power of any misconduct in the discharge of his duties as a member, or has been respon sible for any loss or misapplication of any money or property of the Municipal Committee, or of any local council or other local authority. (2) The Controlling Authority, may, after such enquiry, if any, as may be considered necessary, remove any appointed member, who is liable to removal ‑ under this section, from such membership. (3) An elected member shall not be removed from such membership unless, at a special meeting of the District Council concerned, to be convened in accordance with the provisions of the Order, a resolution to that effect that he is liable to be removed under this section is passed by a majority of such members of the District Council concerned as are the Chairmen of the Union Council of the Town and Union Committees, Vice‑Chairman of the Municipal Committee, in the District, and the Vice‑President of the Cantonment Board therein, and on the passing of such resolution the member shall stand removed. (4) A person removed under this section shall cease to be a member of every local Council or other local authority of which he may be a member,, and shall not be eligible for election or appointment to any local Council or other local authority for such period, not exceeding five years, as the Controlling Authority may fix in each case. (5) Nothing in this section shall apply to any official member: (6) No Court shall have jurisdiction to enquire into or question the validity of anything done, or any order made under this section." The term "elected member " which occurs in subsection (3) of section 16 has been defined in clause (15) of section 3 of the Ordinance to mean the Chairman of every Union Committee in a Municipality, or where the number of such Committees exceeds thirty, every such Chairman elected under the Ordinance to be a member. In the case under consideration, the number of the Union Committees did not exceed the number of members fixed for the Municipal Committee, and, therefore, the petitioner had on his election as the Chairman of the Union Committee A, Bahawalnagar, automatically become an elected member of the Municipal Committee, BahawaInagar. The contention raised by Sardar Muhammad Iqbal on the language used in clause (3) of section 16 of the Municipal Administration, Ordinance, 1960 was that the meeting of the District Council contemplated by subsection (3) of section 16 could be convened by the Controlling Authority for the Municipality because according to him the intention behind the words "in accordance with the provisions of the Order," which occur in subsection (3) of section 16 of the Ordinance was that the authority competent to convene the meeting would, change according as the removal was to be from a Local Council mentioned in the Basic Democracies Order, 1959, or from a Municipal Committee mentioned in the Municipal Administration Ordinance, 1960. I am clear in my mind that this interpretation of learned counsel for the petitioner cannot be accepted because such an interpretation can be arrived at only if all accepted canons of interpretation of laws are overlooked and the words used in subsection (3) of section 16 of the Municipal Administration Ordinance, 1960, are not given their plain and ordinary meaning. The language employed in subsection (3) of section 16 of the Municipal Administration Ordinance, 1960 is so precise and unambiguous that the argument that the Controlling Authority would be different if the member to be removed is an elected member of a Municipal Committee than it would be if he happened to be a member of a local council, cannot be accepted. It is clear that the intention of the law‑making authority was that if the body contemplated by clause (4) of Article 25 of the Basic Democracies Order, 1959, had declared a person to be unfit for holding the office of a member of a Local Council mentioned in that Order he would also lose his seat in the, Municipal Committee which seat he had got by reason on his being a Chairman of the Local Council in question. There C is nothing unjust in this‑though injustice of a law cannot be a ground for holding that it was invalid if it was not invalid for some other reason‑because the person who had come to the Muni cipal Committee by reason of the fact that he had been elected a Chairman of a local council cannot be considered fit to continue to be entitled to a membership which had automatically devolved on him on his being elected a Chairman of a Local Council. I would, therefore, repel the second contention of Sardar Muhammad Iqbal also.

6. The third contention of Sardar Muhammad Iqbal was that the allegation in the three charges which the petitioner was called upon to answer were not established and that even if they be assumed to have been established they could not be considered to be a misconduct by any standard. The first part of this conten tion has to be overlooked altogether for the reason that when dealing with a case in the exercise of writ jurisdiction this Court does not become converted into an authority competent to hear appeals against orders of the authority whose order is under consideration and has to assume the findings of fact as correct unless it be established that the findings are based on no evidence at all. If there is evidence regarding the question on which the authority whose order is under consideration has given a finding this Court cannot in the exercise of its writ jurisdiction enter in to the question whether or not the evidence would justify the finding. That question is for the appellate authority, if any, to consider, and not for this Court when moved for exercise of its jurisdiction to issue an appropriate writ. Learned counsel for the petitioner did not contend that there was no evidence at all regarding the allegations in the three charges sent by the Controller to the petitioner for his reply but urged that the evidence did not justify the findings. Whether or not the evidence justified the findings is a matter this Court, cannot as explained by me, concern itself within these proceedings and I would, therefore, take up the consideration of the contention of learned counsel for the petitioner that even if the charges were established no ground for removal of the petitioner had been made out.

7. With regard to the first of the three charges, namely, that the petitioner had failed for nine months to call a meeting of the Union Committee of which he was the Chairman, Sardar Muhammad Iqbal raised two points, the first being that it was not laid down that the Chairman was to call the meeting of the Committee and the second that the calling of the meeting would have been useless because the functions of the Union Committees had not been fixed by the Provincial Government. For the first of these two points reference was made to rule 4 of the West Pakistan Local Council (Conduct of Business) Rules, 1960, which were published in the Gazette Extraordinary of West Pakistan dated the 30th of June 1960, as Notification No. S. O. (BD)/ 12‑2/60 (1) and 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, read with clauses (2) and (3) of Article 38 and clauses (1) and (6) of Article 39 thereof. Rule 4 is in the following terms :‑ "(1) Ordinary meetings of a local council shall be held at least‑ (i) in the case of Tehsil Council, Union Council, Town Committee or Union Committee‑once in a month ; (ii) in the case of District Council,‑once in two months ; and (iii) in the case of Divisional Council‑once in three months. (2) The Chairman may, whenever he thinks fit, and shall upon a request in writing of not less than one‑fourth of the members of the local council, call an emergent or a special meeting. If the meeting thus requisitioned is not convened the members concerned may move the Controlling Authority and thereupon the Controlling Authority may convene the meeting at such time and date as it may specify by a notice addressed to all the members of the local council. (3) Notwithstanding anything contained in these rules or any regulations for the time being in force the Controlling Authority may direct that any matter specified by him be con sidered by the local council within a specified period and thereon the Local Council shall consider such matter within such period." The contention of Sardar Muhammad Iqbal was that as sub rule (1) of rule 4, reporduced above, did not say, which sub‑rule (2) did, that the Chairman was to call a meeting it should be held that duty has not been laid on the Chairman to call the ordinary meetings contemplated by sub‑rule (1). 1 cannot accept this contention as it appears to me that in the absence of the mention either in the Basic Democracies Order, 1959, or the rules under consideration, of any other authority competent to call ordinary meetings of a local council it has to be presumed that the Chairman of the relevant council was to call the ordinary meet ings especially as emergent or special meetings could be called by a Chairman under sub‑rule (2). It is inconceivable that the intention of the law‑maker and the rule‑making authority was that even in cases of Union Committees which were to have very few members the convener of the ordinary meetings was to be any one other than the Chairman and I repel the contention of learned counsel for the petitioner to the effect that some person other than its Chairman had to call ordinary meetings of a Town Committee.

8. The contention of Sardar Muhammad Iqbal, Advocate learned counsel for the petitioner, to the effect that even if it was the duty of the petitioner to call ordinary monthly meetings of the Union Committee of which he was the Chairman, calling of meetings of the Union Committee would have been a waste of 'l time because the Provincial Government had not laid down what the functions of the Town Committee A, Bahawalnagar, were to be. This argument invoked clause (1) of Article 31 of the Basic Democracies Order, 1959, to support it. This clause reads as follows :‑ "A Town Committee or Union Committee shall perform such functions as may be prescribed, and may, for the purposes of national reconstruction, social uplift and family planning, and the creation of civil consciousness; adopt, with the previous sanction of the Government, such measures as may be necessary." The argument of learned counsel for the petitioner cannot stand scrutiny because even' without the functions of Union Com mittees being specified by rules, they had some functions of which mention has been made in the clause under consideration. It was open to the Union Committee Bahawalnagar, to adopt measures for the purposes of national reconstruction, social uplift and family planning though carrying such measures out could not be undertaken without sanction of the Government. It is, therefore, incorrect to say that the calling of the monthly meetings of the Union Committee would have amounted to loss‑of labour and waste of time. If the Union Committee did not adopt any measures the Provincial Government could not allow their im plementation and it follows, therefore, that the omission of the petitioner to call the monthly meetings was not a matter which need not have been taken notice of. Nor can there be any doubt that if the third charge, namely that of abuse of power to the detriment of the other members, were established, the peti tioner had been guilty of misconduct. The facts mentioned in the first and the third charges amount to misconduct and it is, therefore, not necessary to consider whether those mentioned in clause did, because if the other two charges were established, misconduct calling for action was clearly established and removal would be justified.

9. It was next contended by learned counsel for the petitioner that because the result of the resolution of the District Council was that the petitioner would lose his seat in the Municipal Com mittee in addition to his seat in the Union Committee, the misconduct on the basis of which action could be taken must have been in the capacity of the petitioner as a member of the Municipal Committee otherwise the peti tioner could not be removed from membership of that body. This argument is untenable because clause (5) of Article 25 of the Basic Democracies Order, 1959 (President's Order 18 of 1959), after its amendment by the Basic Democracies (Amendment) Order, 1960 (President's Order 14 of 1960) is to the effect that removal from membership of a Union Committee automatically leads to removal from membership of a Municipal Committee. The only difference between the effects of Article 25 of the Basic Democracies Order, 1959 and section 16 of the Municipal Administration Ordinance, 1960 is that if the removal emanates from a resolution passed under clause (4) of Article 25 of the Order, the Controlling Authority for the Local Council mentioned in that order can fix the period of disqualification under clause (5) of that Article, but if the removal emanates from a resolution under subsection (3) of section 16 of the Ordinance action under subsection (4) of section 16 of the Ordinance to fix the period for which the member removed shall be under the disqualifica tion mentioned in that subsection will have to be passed by the Controlling Authority for the Municipal Committee concerned. The contention of Sardar Muhammad Iqbal, Advocate, learned counsel for the petitioner dealt with in this paragraph, is therefore, as untenable as those already disposed of.

10. It was lastly contended by the learned counsel for the petitioner that in fact there had been no discussion at the meeting of the District Council held on the 17th of February 1961 and that without discussing the question that fell for determina tion the District Council had passed a resolution confirming their former resolution and in this connection he wanted that the documents connected with the resolution be gone into. This allegation of a slip‑shod manner of conducting the meeting was denied by all of those respondents who, were connected with the resolution and as it is not the practice of this Court when dealing with writ petitions to launch upon inquiries regarding disputed questions of fact, I would not launch upon the inquiry suggested by Sardar Muhammad Iqbal, Advocate.

11. In view of what I have said above, I hold that the petition has no force and would dismiss it with costs. BASHIR AHMAD, J.‑I entirely agree. K. B. A. Petition dismissed.