P L D 1961 Supreme Court 145 (PLP)

(11) Mr. M. H. Gazdar (12) Khan Abdulla Khan (13) Mr. T. Motandas (14) Mr. S. A. Latif (15) Mr. G. Allana and further appoint Mr. A. K. Gabole as the Chairman of the said Committee. (Sd.) N. M. nnan Chief Commissioner, Karachi." As against this order of the Chief Commissioner Mr. Jamil Ahmad, who was Deputy Mayor of the Corporation at the time of its dissolution, filed a petition on the 4th July 1957 (which was numbered as Writ Petition No. 340 of 1957) for a writ of certiorari or mandamus for setting aside the said order, restoring the Corporation forthwith, or in the alternative to direct the Chief Commissioner to notify forthwith the date of election of the Karachi Municipal Corporation within two months of the Court's order, and also for a writ of mandamus or prohibition to restrain the Municipal Commissioner from adopting the Electoral Rolls to 4 be prepared by the Election Commission, and either to finalize the Electoral Rolls which were being prepared by the Chief Officer at the time of the dissolution of the Corporation or, if the finalization takes more than two weeks, adopting the existing Electoral Rolls for the purpose of the election. This was followed by another writ petition by the same person, being Writ Petition No. 461 of 1957, to which one new respondent, namely, the Election Commissioner, was added, which appears to be substantially the same as the first writ petition and was directed against the amendment of the Electoral Rolls for the holding of the election. There was no allegation in either of these writ petitions that the Chief Commissioner had not exercised his own judgment in passing the order of dissolution and was doing so at the dictation of the Central Government. Although no foundation was laid in facts in the petitions or affidavits, this point was allowed by the High Court to be raised in arguments before it. In this connection it is also necessary to note that the life of the Corporation expired by the lapse of time under the Act on 25th of May 1957, a few days before the filing of the writ petitions, and that immediately after the dissolution as a matter of fact the Chief Commissioner took steps for holding the next general election of the Corporation and for this purpose within three weeks of the Notification, namely, on the 6th January 1957, he ordered a fresh census for preparation of a new Electoral Roll and preliminaries to be done, which went on for four or five months. The final Electoral Roll was completed on the 28th of February 1958 and elections were actually held on the 24th April 1958, after which a new Corporation came into existence. The High Court after hearing the parties to the writ petitions held (1) that the order dissolving the Corporation was not the Chief Commissioner's order but was dictated by the Central Government whereas it was the Provincial Government which had the power, and therefore the order was invalid, (2) that inasmuch as reasons were not published in the Gazette Notification, the order was vitiated and (3) that general elections not having been ordered in the Notification and a specific date fixed for the purpose, a mandatory provision of section 280 (1) of the City of Karachi Municipal Act, 1933, had been violated and the order was vitiated thereby. The High Court, therefore, held that the order dissolving the Municipal Corporation as notified on the 14th December 1956 was bad in law, and ordered and directed that the Karachi Municipal Corporation would be run in accordance with the Act by the Municipal Commissioner, as ordered by the Chief Commissioner, with the help of the Advisory Committee, and further directed that the said Municipal Commissioner would perform all the powers and duties of the Corporation under the supervision of the High Court, and under its guidance from time to time when necessary, and directed the Municipal Commissioner to prepare complete Electoral Roll so as to hold elections of the Councillor by April 1958, and a writ in terms of this order was issued on the 27th September 1957. The learned Attorney‑General appearing on behalf of the appellant in this case has assailed all the three grounds relied upon by the High Court in support of its order as being untenable and invalid. The point that the order of dissolution was dictated by the Central Government is clearly devoid of force. In the first place, the petitions did not lay any ground in fact in support off this point and the High Court should not have gone into it Unless it was asserted in the petitions as a fact and as it involved investi gation into facts, it should not have been allowed to be raised incidentally in the midst of arguments without giving a chancy to the other side to refute it. Besides, it is clear that the initiative was taken by one Chief Commissioner, and after consultation with the Central Government the order of dissolution was finally passed by his successor. Such consultation was entirely appropriate for the Chief Commissioner who was administering Karachi, on behalf of the Central Government, under certain instruments, among which special mention may be made of the Ministry of Interior Notification No. 3/4/52‑Kar. II, dated the 21st October 1952, and the President's Order No. VI, dated the 15th April 1958, which declared the validity of the former Notification. That Notification conferred upon the Chief Commissioner the powers and duties of the Provincial Government of Sind, in relation to the Federal Capital, to be exercised "subject to such general or special instructions as may from time to time be given to him by the Central Government." It is quite plain that the order of dissolution cannot be avoided on this ground. With regard to the second ground the High Court's finding that no reasons have been given is equally unsustainable. In the Notification, dated the 14th December 1958, which has been quoted above, two reasons have been given: (1) that the Corporation has been persistently abusing its powers and (2) making default in the performance of the duties imposed on it by the Act of 1933. These are the grounds which are sufficient under section 280 (1) of the Act to justify the dissolution. Section 280 (1) runs thus:‑ "280 (1).‑If at any time, upon representation made or otherwise, it appears to the Provincial Government that the Corporation is not competent to perform or persistently makes default in the performance of the duties imposed on it by or under this or any other Act for the time being in force, or exceeds or abuses its powers, the Provincial Government may after having given an opportunity to the Corporation to show cause why such order should not be made, issue an order directing that the Corporation shall be dissolved from such date as may be specified in the order and that general elections shall take place in accordance with the provisions of this Act so far as they may be applicable. Such order shall be published in the official Gazette together with the reasons for making it." The law nowhere requires that the reasonings, on which the authority holds that the above facts exist, or the reasonings adopted by it to refute the reply should be included in the Notification. It would make a Notification needlessly prolix and unwieldy. The Notification is just intended to give the public information of the reasons on which the dissolution had been ordered so that they may know that the supersession has been on legal grounds. The rest of the proceedings in this connection have nothing to do with the Notification. I, therefore, hold that the reasons given in the Notification are sufficient for the purpose to satisfy the law. I now come to the third ground on which the High Court has held the Chief Commissioner's order to be invalid. All that section 280 (1) requires is that there should be a statement in the Notification "that general elections shall take place in accordance with the provisions of this Act so far as they may be applicable." It is argued by the learned Attorney‑General that this does not go beyond the general promise that the general elections were going to take place after the dissolution. It is conceded that the omission may amount to an irregularity, but maintain that this cannot vitiate the order of dissolution itself. He has submitted that the High Court has gone beyond the requirements of the section itself, inasmuch as it thinks that a specific date for general elections should be fixed in the Notification itself to make it valid, which is not a requirement of this section. He further submits that "provisions relative to the time for publication, as well as those regulating the manner and details of publication, are generally considered directory" and not mandatory. (He relies on the text of Crawford on Statutory Construction, 1940 Edition page 74). He also relies on the same book, where a principle deprived from certain American decisions had been laid down "that a statute which requires certain things to be done, but does not prescribe any results to follow if they are not done, should be held directory." (Page 524, Note 39). He also drew our atten tion to paragraph 266 of the same book at page 529, where under the heading "Statutes Pertaining to Official Action" the principles stated are as follows:‑ "As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory." He also relied on Maxwell's Interpretation of Statutes, 6th Edition, pages 649‑50, for the proposition that "where the prescriptions relate to the performance of a public duty; and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the essential aims of the Legis lature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only." I agree with the learned Attorney‑General and hold that the provision in section 280 (1) of the Act relating to general elections to be notified is directory and not mandatory and a substantial compliance with this would be enough. In the present case, although the elections were not mentioned in the Notification itself, within three weeks of the Notification steps as a matter of fact were publicly taken by the Chief Commissioner in accordance with the Act of 1933, which ultimately ended in a general election in April 1958, which is the date by which the High Court itself directed the elections to be held. The High Court's order directing the Corporation to work under its control and guidance is also open to grave objection. For the above reasons the order of the High Court on the writ petitions is unsustainable and is set aside. The writ issued by the High Court is hereby recalled. In the circumstances of the case I make no order as to costs. FAZLE AKBAR, J.‑I agree. S. A. RAHMAN, J.‑Three points fall for determination in this case. I agree that the validity of the order passed by the Chief Commissioner could not be challenged on the ground that he had acted under orders of the Central Government. In the first place, the Chief Commissioner had applied his own mind to the facts and came to the conclusion that supersession of the Corporation was called for. If he consulted the Central Government of which he was the delegate for the administration of the Federal area, it would not in any way affect the legality of his own order. I am also clearly of the opinion that the failure to include in the notification issued by the Chief Commissioner any reference to elections that were to follow the supersession of the Corporation, was not fatal to its legality. The direction in the relevant provision of law must be regarded as directory rather than mandatory. On the third point, however, in the absence of a full argument, I have not been able to make up my mind. This point concerns the necessity of giving reasons in the notification for the proposed action. I would prefer not to express an opinion on this point, as, in my humble judgment, the question has not been threshed out before us. In view, however, of the fact that elections have already taken place subsequent to the supersession of the Corporation, the question of law raised is merely of an academic nature and I would reserve my opinion on it for expression in a more appropriate case. In these circumstances, I am inclined to dismiss the appeal as infructuous. B. Z. KAIKAUS, J.‑This appeal was heard in unusual circumstances. In pursuance of the orders of the Chief Commis sioner or the High Court the elections had already been held and the only reason for this appeal was that the Government wanted a decision on the points involved. The other party did not appear, for obviously they had no interest in defending the appeal. There are three points on which a decision can be given. The first is that the Chief Commissioner did not by himself constitute the Provincial Government and, if he acted under the directions of the Central Government, his action would still be in accordance with law. The second is that the failure to record reasons in the order of supersession did not vitiate the order, and the third that it was not necessary to give directions with respect to fresh elections in the order itself. As regards the first of these points, it had been conceded before the High Court that it was the Chief Commissioner who was the Provincial Government within the meaning of section 280 of the City of Karachi Municipal Act, 1933. In the grounds of appeal to this Court the contention was that although orders were received from the Central Government it was the Chief Commis sioner who had initiated the matter and therefore the order should be regarded as having been passed by him independently of the directions of the Provincial Government. It had not been urged that an order of the Central Government itself would be valid. At the hearing my Lord the Chief Justice with his usual quickness of mind perceived that there had been some misapprehension and an investigation into the notifications confirmed his opinion. The relevant notifications showed that the Chief Commissioner was to act under the directions of the Central Government, so that objection to his order on this ground was really not well‑founded. The Administration of Karachi has now been taken over by the within the meaning of section 280 of the City of Karachi Municipal Act. As regards the other two points, and particularly with respect to the first of these two, I do not think it will be advisable to give any decision in the absence of a full argument. My personal reaction, without the help of authority, I would presently state, but I do not think we should give a decision at all on a question of such importance on the material that has been placed before us. The High Court had on the question as to the effect of failure to record reasons referred to a number of cases. It would not be correct to overrule all those cases without even a reference to them. The learned Attorney‑General did not during the course of argument refer to even one of them. He put forward a simple argument, that if the Provincial Government states the category under which, out of the categories mentioned in section 280 (1), the case falls, the requirement regarding recording of reasons would be sufficiently complied with. For instance, if the Provincial Government simply said without referring to any facts that the Committee had exceeded its powers, reasons should be regarded as having been stated. When we asked the Attorney‑General whether in the cases which were relied upon by the High Court there was any reference as to what was meant by the recording of reasons he gave a vague answer that the cases were not helpful. I read some of those cases myself and found that there was a discussion as to what was meant by the recording of reasons. In one judgment it had been held that not only the conclusions of fact but the reasons for those conclusions had to be stated. According to the learned Attorney‑General even the conclusions of fact are not to be stated, only the category under which the case falls. If an appeal is filed only for the purpose of getting a decision on a question of law of importance it is necessary that an effort be made to place the whole of the relevant material before us, particularly when the opposite party is not represented. A good deal of material should have been available. The requirement of recording of reasons occurs in a number of statutes and, if we go into cases relating to those statutes it will not at all be difficult to find authority in support of the proposition that reasons recorded must relate to facts. In fact, it would be difficult to find any authority to the contrary. To state my personal reaction it is extremely improbable that the Legislature when making a provision of this character was requiring the Provincial Government to state only the category under which the case falls. It should be observed that the grant of power to the executive to do away with one stroke of pen with a body which has been elected by the people is a very unusual provision. It does not so far as I have been able to ascertain (I have gone through the Local Government Act which now consolidates such provisions) exist in England and if in that country such a body were to be superseded the Parliament would have to pass an Act. If it was necessary in this country to grant the executive such a power it has at least to be regulated to such a way that its abuse is prevented. If we were to hold that there is no need to state either the allegations of fact or the reasons therefore in orders passed by the Provincial Government under section 280, the result would be that the executive itself would be the sole judge of the legality of its own actions, and this is not consistent with what is now‑a‑days called the rule of law. If reasons are not recorded there would be no method of knowing whether the order of the Provincial Government is in accordance with law. Suppose the Government frames 10 charges involving action in excess of power by the Committee and suppose further that out of these charges 8 are such that if the facts are true the power has in fact been exceeded, but that in the remaining two charges the Government is really taking a wrong view of the powers of the Committee and assumes that the Committee has not a power with in fact the Committee has. If the Government finds on facts only these two charges proved which really do not constitute any excess of power the order would be really void, in law, but it could not be known that it was so void because all that the Government would say will be that the Committee had exceeded its power. The provision as to recording of reasons must have an object. The object appears to be that the reasons may be known to: (1) the public that constitutes the electorate or the tax payer ; (2) the person against whom the charge is brought, and (3) any authority that is to determine the legality of the order. If we were to interpret the requirement as to recording of reasons as meaning only a reference to the category under which the case falls the object of the provision would not be served. Nobody would be any the wiser by a simple statement as to whether the powers have been exceeded or abused or whether there was a persistent default in the words of section

280. In any case, the reasons must relate to facts and not to a simple statement of a legal effect. If charges have been framed the least that could be done was to say which charges had been proved. I am not accepting that the simple statement as to what charges were proved would be sufficient. I am only saying that if even the charges which are proved are not mentioned the recording of reasons would be wholly without any use. That there should be reasons even for the conclusion appears to me properly within this requirement. If the highest Court of Justice in the country when it determines the rights and liabilities of the parties has to state its reasons, why should not then an executive authority while giving a decision which is at least quasi judicial state its reasons? There does not appear to me to be any particular objection to the statement of reasons in the order under section 280 by the Provincial Government. After all the Government has reached a decision on the basis of some reasons and if those reasons are stated nobody would be harmed. On the other hand, if reasons are stated the legality of the action could be easily determined. Action of the Provincial Government may be wholly invalid in law on account of misconception of the scope of their power or of the definition of an expression. Are not the decisions of the High Court, which is a Superior Court, so many times interfered with on the ground that they misconceived the definition of an expression or that they did not properly conceive the scope of a particular action. If the High Court could make mistakes on questions of law the Provincial Government too can make similar mistakes and an order under section 280 which is bona fide may still be in violation of law. If two interpretations of a statute are possible the rule is that we should adopt that which is reasonable and which would be more in accord with justice and our conceptions of the citizens' rights. Out of the two constructions, the first being that only the naming of the category in which the case falls is sufficient, and the second that the facts actually found by the authority should be mentioned which is the one which should be adopted in accordance with this rule. It does not appear to me to be difficult to hold that the second alternative should be adopted. With respect to the requirement as to directions for holding an election I agree that only a substantial compliance with this provision is required. Of course when the Committee is superseded steps should be taken as soon as possible to hold fresh elections for the intention is not to allow a simple supersession. It is not necessary, however, that the directions as to election should be contained in the same order. If they are issued simultaneously or almost simultaneously as they were in this case the law is sufficiently complied with. I am of the opinion that we should in this appeal decide that the Chief Commissioner and the Central Government together did constitute the Provincial Government and that the requirement as to directions for a fresh election is only to be substantially complied with; and that we should otherwise dismiss this appeal as infructuous because the elections had already been held and the decision of this appeal can have no possible practical effect. CORNELIUS, C. J.‑I agree on all points with the Judgment proposed by my brother Amiruddin Ahmad, I would, like, how ever, to add a few observations with respect to the points of (1) the giving of reasons in, and for, the order of dissolution and (2) the absence from that order of a specific direction regarding the holding of afresh election. The relevant law, viz., section 280 (I) of the City of Karachi Municipal Act, 1933, reads as follows :‑ "280 (1)‑If at any time, upon representation made or otherwise, it appears to the Provincial Government that the Corporation is not competent to perform or persistently makes default in the performance of the duties imposed on it by or under this or any other Act for the time being in force, or exceeds or abuses its powers, the Provincial Government may after having given an opportunity to the Corporation to show cause why such order should not be made, issue an order directing that Corporation shall be dissolved from such date as may be specified in the order and that general elections shall take place in accordance with the provisions of this Act so far as they may be applicable. Such order shall be published in the Official Gazette together with the reasons for making it." In the order which is impugned, the "reasons" given for the dissolution were‑ (i) that the Corporation has been persistently abusing its powers ; and (ii) that the Corporation has been making default in the performance of the duties imposed on it by the Act, There was no mention of the holding of "general elections" for the re‑constitution of the Corporation, but, as has been pointed out by my brother Amiruddin Ahmad, appropriate action for the purpose was commenced almost immediately after the dissolution, and in a continuous process, Electoral Rolls were prepared and "general elections" were held in due course. I entertain no doubt that the relevant provision in the Act viz., that the provincial Government "may‑issue an order directing that the Corporation shall be dissolved from such date‑and that general elections shall take place in accordance with the provisions of this Act, so far as they may be applicable", is to be treated as a directory provision, and that the use of the verb "shall take place" does not necessarily import a mandatory effect. The governing verb is indeed in the earlier expression "may issue an order directing", and if due weight be given to this, then the verb "shall take place" may carry the emphasis of futurity rather than the view accepted in the High Court, viz., that it represents a command of the Legislature. In any case, the prescription is as to the performance of a public duty, and should prima facie de treated as directory, so that by non‑performance of this ancilliary or supplementary duty of directing fresh elections in the same order by which the Corporation was directed to be dissolved, the latter order could certainly not be thought to be invalidated. As for the requirement of "reasons", I consider that this expression cannot be understood in the sense of an argument presented by way of justification in order to carry conviction, which is perhaps a fair description of the character of "reasons" contained in a judgment. It is to my mind evident, (and I should add that the argument presented before us in the case, was adequate and sufficient to clarify the matter) that the Government would be placed in a very awkward position if it was required to support an act possessing the finality of an order disturbing the life of a branch of the local government, by a justifying argument, canvassing grounds of fact and law. Matters of this kind are generally the subject of public controversy, and it cannot be within the intention of the statute that the Government should face the possibility of its argument being torn to pieces at the hands of the opponents of the dissolution, by e.g., counter‑allegations of fact, and legal disquisition. Such a course would only result in extending the mischief which it is intended to cure by means of the dissolution. It was, in my opinion, a sufficient compliance with the law that the order of dissolution was expressly based on two out of the three grounds, upon which, under the law, the dissolution could have been ordered. In accordance with the decision of the majority the appeal is allowed, the order of the High Court on the writ petitions being unsustainable is set aside and the writ issued by it is hereby recalled. There will be no order as to costs. A. H. Appeal allowed.