1999CLC1515 (PLP)

(4) Wah Muhammad son of Jamadar, and (5) Abdul Hameed son of Wali Muhammad. The first four filed the present writ petitions which are being disposed of by this judgment. Learned counsel for the petitioners argued that the impugned order has been passed in an arbitrary manner without providing any opportunity of hearing to the petitioners. It has also been pointed out that Umar Din on whose initiation the impugned order has been passed was the proposer of Muhammad Naeem Safdar who filed aforementioned Writ Petition bearing No.21238 of 1998. On this basis it is argued that the impugned order has been secured by Naeem Safdar Councillor, Town Committee Ladhewala Wariach in a surreptitious manner through Umar Din who was his proposer in the election of the Local Bodies held on 20‑5‑1998. Learned counsel has also referred to report of the Administrator Town Committee Ladhewala Wariach to the effect that the petitioners have got no contract whatsoever with the said Committee. Learned counsel Mr. Alamgir has entered appearance for respondent Umar Din, while Mr. Amjad Pervaiz has appeared for all those respondents who were declared successful on special interest Seats from Town Committee Ladhewala Waraich through notification, issued by Deputy Commissioner, Gujranwala on 17‑10‑1998. Both of them have supported the impugned order on 14‑10‑1998 as well as the Notification, dated 17‑10‑1998 mentioned above. They have stated that respondent No. l Secretary Government of the Punjab Local Government under the Punjab Local Council Removal of Chairman and Vice‑Chairman and Members Rules, 1982 has got ample power to pass any order as he may deem fit. They have placed reliance upon Rule 3 which is to the following effect:‑‑

"(3) Upon receipt of a complaint, Government may take all or any of the following actions‑‑ (a) dismiss the complaint, (b) call for the comments of the respondent within a time to be specified. (c) call for a report from any officer, authority or person, or (d) pass any order as it may deem fit other than an order of removal. On this basis relying upon Rule 3 sub‑rule 3(D) they have stated that the respondent Secretary was competent to pass any order as he may deem fit. They have further stated that the authority which can pass the final order has got the inherent power to pass the interim order as such no exception can be taken to the impugned order passed on 14‑10‑1998. I have considered the contentions and have gone through the documents appended with this petition. It has not been denied that Umer Din respondent who filed the complaint/petitions under section 29 of the Local Government Ordinance, 1979 before the Secretary, Government of the Punjab was the proposer of Ch. Naeem Safdar Councillor. The latter filed Writ Petition No.21238 of 1998 which was dismissed on 14‑10‑1998 and the learned Judge while dismissing his writ petition observed as under:‑‑-- "It seems that the petitioner belongs to a rival group of respondents Nos. l to 4 in the elections of the Special Interest Seats which are going to be held tomorrow. The petitioner remained silent since the holding of elections of the Local Bodies in May, 1998. It appears that the petitioner has his axe to grind. The learned counsel for the petitioner has failed to satisfy me of subsisting interest of respondents Nos. l to 4 in any on going contract or otherwise in respect of the said Local Council. " Said Naeem Safdar, Councillor manoeuvered this application under section 29 of the Local Government Ordinance, 1979 through Umar Din his proposer in the Local Bodies Election on the same ground by superessing all these facts. It is pertinent to mention here that the Secretary, Local Government appeared before this Court on 22‑10‑1998 and stated at the Bar that he would certainly have not passed the impugned order suspending the membership of the petitioners if the Town Committee, Ladhewala Warriach, had the order of dismissal of the Writ Petitions Nos.21236 of 1998 and 21238 of 1998 been brought to his notice. The impugned order, dated 14‑10‑1998 admittedly has been passed without providing any opportunity of hearing to the petitioners on 14‑10‑1998 which in an illegal manner deprived them to participate in the election of Special Seats schedule on the next day. It is consistent practice of the Superior Courts that in an election matter, the interim order of disqualification be sparingly passed and that too where the circumstances are of such a nature that the illegality is apparent on the face of it. It has been held by a Division Bench reported in Abdul Waheed and others v. Din Muhammad and others PLD 1982 Lah. 168 as under:‑‑ "Therefore, it cannot be said that the petitioners will suffer irreparable loss or grievous injury if respondent No.l performs his functions as a Member of the Union Council. The judgment referred to by the learned counsel for respondent No.1 make it quite clear that elect holders are not to be restrained from performing their functions without final judgment and no interim injunction should be issued." Reliance is also placed upon Col. (Recd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others 1986 SCMR

48. It is pertinent to mention here that the Town Committee, Ladhewala Warraich has got 17 Councillors and out of whom five were grounded disqualified temporarily by order of the Secretary, Local Government, dated 14‑10‑1998 impugned in these Constitutional petitions. In this background, can it be said that the election of Special Seats held on 15‑10‑1998 were fair and transparent. The answer is certainly in the negative. I feel sorry in observing that the conduct of Mr. Naeem Safdar, Councillor in manoeuvering impugned order through his proposer Umer Din respondent in spite of the fact that he himself failed to get the same relief in Writ Petition No.21238 of 1998 is highly deprecated. In these circumstances, no sanctity can be attached to the election of special seats of the Town Committee, Ladhewala Warraich held on 15‑10‑1998 conducted by depriving the petitioners from participating in the same in the manner stated in .the preceding paragraphs. Accordingly the order, dated 14‑10‑1998 passed by the Secretary, Local Government and Rural Development Punjab cannot be sustained and is said to have been passed without lawful authority and of no legal effect. Consequently, the election of Special Interest Seats held on the next date i.e. 15‑10‑1998 without participation of the petitioners whose membership was suspended by the impugned order also not be given any credence. Reliance in this respect is placed upon Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104 wherein it was held as under:‑‑

"And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, tall to the ground because such orders have as little legal foundation as the void order on which they are founded. " Reference is also made upon Crescent Sugar Mills and Distillery Limited Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah. 1 wherein it was field as under:‑‑ "Since the basic order suffers from inherent disability, the superstructure raised thereupon falls to the ground and the order impugned in the writ petition cannot be said to have been passed with lawful authority Yousaf Ali v. Muhammad Aslam Zia and others PLD 1968 SC (Pak.) 104 is referred." Resultantly the Notification bearing No. LG‑98/3351, dated 17‑10‑1998 issued by the Deputy Commissioner, Gujranwala qua the declaration of returned candidate of special seats of Town Committee, Ladhewala Warriach namely Muhammad Tariq Khayam, Muhammad Nazir, Hajran Bibi, Hanifan Bibi Ruqayya Bibi and Nargis Bibi at Serial No.7 is declared to have been issued without lawful authority and of no legal effect. This order, however, shall not come into the way of Secretary, Local Government to proceed in the application/Complainant filed by Umar Din respondent under section 29 of the Local Government Ordinance, 1979 in accordance with law and rules. There shall be no order as to costs in the circumstances. H.B.T./M‑1061/L Order accordingly.