1994 PLP 1794 (CLC)

4. The learned Single Judge in his judgment dated 30‑1‑1994 held the notification to be bad in law mainly for two reasons, firstly that powers under section 26‑A of the Punjab Local Government Ordinance, 1979 could only be exercised towards the end of the term of the Local Councils for holding fresh elections and,' secondly, that simultaneously with the curtailment of the term, the Government must announce the schedule for holding elections to the Local Councils and as it has not been done, the term could not have been curtailed. After having come to this conclusion, the learned Judge did not feel persuaded to restore the Local Councils and their Office Bearers as in his opinion it was not in larger public interest to do so in view of serious allegations against the Members of the Local Councils which, according to the learned Single Judge was a matter of public knowledge. The learned Single Judge, therefore, proceeded to direct the Government to hold fresh elections to the Local Councils by 31‑3‑1994 failing which only those Local Councils the curtailment of term of which has been challenged by filing Constitutional petitions would stand revived.

5. Both the parties felt aggrieved by this judgment of the learned Single Judge and filed these Intro‑Court Appeals. So far as writ petitioners were concerned, their grievance was that after having found the impugned notification to be without lawful authority, the learned Single Judge should have as a necessary consequence, directed the restoration of the petitioners to their Offices and revival of the Local Councils for the remaining term. On behalf of the Provincial Government, the grievance was that the learned Single Judge has erred in holding that the notification suffers from any legal vice.

6. All these appeals were admitted to regular hearing, where after keeping in view the importance of the matter we started day‑to‑day hearing of the appeals. On behalf of the appellants/writ petitioners, Mr. S.M. Zafar, Mr. Maqbool Elahi Malik and Mr. Karamat Nazir Bhindari, Advocates were heard.

7. In reply, the learned Advocate‑General started his arguments. On 29‑3‑1994, during the course of he4ring certain aspects were pointed out to the learnd Advocate‑General on which he sought time to obtain further instructions. The case was accordingly adjourned to 30‑3‑1994. On that date, a request for further postponement was made by the learned Advocate‑General on the ground that the Chief Minister was outside the country. The case was, therefore, adjourned to 6‑4‑1994.

8. The learned Advocate‑General further requested that operation of the impugned judgment of the learned Single Judge be suspended. Earlier, we had not passed any order on the application for interim relief as we, were of the view that the appeals themselves would be disposed‑ of by 31‑3‑1994. However, as it was not possible to complete the hearing before that date, we, keeping in view the fact that the appeals had been partly heard and both the parties had challenged the judgment of the learned Single Judge in appeals, suspended the operation of his judgment till 6‑4‑1994.

9. When the cases came up for hearing on 6‑4‑1994, we were informed by the learned Advocate‑General Punjab, that the Government of Punjab has issued the Punjab Local Government (Amendment and Validation) Ordinance, 1994 (VI of 1994) whereby an explanation was added to section 26‑A of the Punjab Local Government, Ordinance, 1979 and validation was granted to the notification issued under section 26‑A, notwithstanding any judgment of any Court. It was further stated by the learned Advocate‑General that the notification impugned in the Constitutional petitions namely Notification No.SOV(LG) 3‑32/93 dated 15‑8‑1993 has been superseded by another Notification bearing No. SOV(LG) 3‑32/93 dated 5‑4‑1994. Copies of the Punjab Gazette in which the amending Ordinance as also the notification of 5‑4‑1994 had been published, were placed on record.

8. At the request of the learned counsel for the appellants the cases were adjourned to 9‑4‑1994‑so as to enable them to make their submissions in the light of the new development.

9. Today, we have heard Dr. A. Basit, Advocate for the appellants/writ petitioners as also Mr. Karamat Nazir Bhindari, Advocate, who appeared for some of them.

10. Dr. A. Basit, Advocate submitted that he has filed a civil miscellaneous application before this Court in which he has prayed that the effect of Punjab Ordinance VI of 1994 and of the subsequent notification dated 5‑4‑1994 be nullified. We, however, pointed out to the learned counsel that neither the amending Ordinance VI of 1994 nor notification dated 5‑4‑1994 were under challenge in the appeals before us, therefore, the validity and the effect of these instruments could not be gone into, at least without amendment of the petitions and appeals. He was, therefore, asked as to whether he would like to move for amendment of the appeals/Constitutional petitions or to file fresh petitions in this behalf. He, however, stated that he has already invoked the jurisdiction of the Supreme Court of Pakistan and would, therefore, be doing neither.

11. Mr. Karamat Nazir Bhindari, Advocate, however, verbally sought permission to amend the petitions in the light of subsequent development. We were, however, not inclined to grant this request mainly for the reason that as stated by Dr. A. Basit, Advocate, the Supreme Court of Pakistan is already seized of the matter and on the rule of propriety the same matter cannot be re agitated before us. Furthermore, we were also of the view that in the circumstances, the appellants should, if so advised, file fresh separate petitions challenging the amending Ordinance and the notification.

12. As already mentioned, in the Constitutional petitions out of which these appeals have arisen the validity of Notification No.SOV(LG) 3‑32/93 dated 15th August, 1993 was questioned. That notification, however, stands superseded by the subsequent notification of 5th April, 1994 and is, therefore, not in existence. In this view of the matter, we are of the view that with the supersession of the impugned notification, these appeals have been rendered infructuous and cannot be proceeded with. These appeals stand disposed of in the above terms. A.R.K./Z-121/L Appeals disposed of.