1989 SCMR 1571 (PLP)

SAAD SAOOD JAN, J.‑‑These are two petitions for special leave to appeal from the judgment dated 21‑1‑89 of the Lahore High Court whereby the proceedings of the Municipal Committee, Mailsi, held on 24‑12‑87 for elections to seats reserved for special interests were quashed and a direction was given that fresh elections to the said seats be held in accordance with law.

2. Elections to the Muslim seats in the Municipal Committee, Mailsi, were held on 30‑11‑1987. In these elections Ashiq Hussain Javed and Rashid Ahmad Nawaz, hereinafter referred to as the contesting respondents, were declared as elected. The Election Authority appointed 24‑12‑1987 as the date for election to seats reserved for special interests. On 23‑12‑1987 two members of the public, Ghulam Oadir and Munshi Khan moved applications under section 29, read with section 21, the Punjab Local Government Ordinance, 1979 before the Secretary in ,the Local Government Department,alleging that the contesting respondents were approved and registered contractors of the Municipal Committee and as such they were disqualified from being elected as members thereof. These applications were supported by the affidavits of the applicants and the certificates issued by the Head Clerk of the Municipal Committee. On the basis of these applications, on that very day the Secretary made an order calling the comments of the contesting respondents and the Divisional Commissioner. He also suspended the membership of the contesting respondents till the receipt of the comments and hearing of the applications. Consequently, in the meeting held on 24‑12‑1987 the contesting respondents were not permitted to cast their votes in the election to the seats reserved for special interests. In the elections the petitioners before us were declared elected to the said seats by a majority of one vote. On 30‑12‑1987, the Secretary dismissed the applications with the findings that the allegations against the contesting respondents were baseless and without any foundation.

3. On 26‑12‑1987 the contesting respondents filed writ petitions in the Lahore High Court challenging the legality of the order dated 23‑12‑1987 of the Secretary and the elections held on 24‑12‑1987 on a number of grounds. It was inter alia stated on their behalf that there were 19 Muslim seats in the Municipal Committee. After the elections held on 30‑11‑1987, the members elected for the Muslin seats divided themselves into two groups. Their group consisted of 10 members were their rival faction, known as `Khichi Group' comprised 9 members In view of the majority they enjoyed, though slender it was, they were likely to increase their strength after the elections to the seats reserved for special interests. To convert their majority into minority, a Provincial Minister, a parliamentary Secretary and two members of the then National Assembly prevailed upon the Secretary to suspend their membership by an illegal order and as soon as this result was achieved the Secratary withdrew the order of suspension.

4. It appears that in suspending the membership of the contesting respondents, the Secretary had acted under Rule 3(3) of the Punjab Local Council (Removal of Chairmen, Vice‑Chairmen and Members) Rules, 1982.These Rules had been framed under section 167, read with section 29 of the Punjab Local Government Ordinance, 1979. Section 167 empowered the Provincial Government to make rules for carrying out the purposes of the Ordinance. Section 29 set out the grounds upon which a Chairman: Vice‑Chairman or a member of a Local Council could be removed by the Provincial Government.

5. Before the High Court, it was not the case of any of the parties that the contesting respondents suffered from the disqualification alleged against them by Ghulam Qadir and Munshi Khan. So far no action has been taken against Ghulam Oadir and Munshi Khan for filing false applications and affidavits. Similarly, no proceedings have been taken against the Head Clerk for issuing palpably untrue certificates.

6. The High Court found that the power given to the Provincial Government by section 29, the Punjab Local Government Ordinance, could be exercised only if a member duly elected incurred a disqualification mentioned therein and that it could not be extended to his pre‑election antecedents; consequently, Rule 3(3) of the Punjab Local Council (Removal of Chairman, Vice‑Chairman and Members) Rules, which had reference to section 29, could not be invoked by the Secretary to suspend the membership of the contesting respondents on the ground, even if it was true, that prior to their election they were approved and registered contractors of the Municipal Committee. It also found that the Secretary had not acted bona fide in making the order of 23‑12‑1987. Accordingly, it declared the proceedings of the Municipal Committee held on 24‑12‑1987 to be without lawful authority and of no legal effect and directed that the elections to seats reserved for special interests should be held afresh in accordance with law.

7. These two petitions for special leave to appeal have been filed by persons who were elected to the seats reserved for special interests. It is contended on their behalf that the High Court was not right m taking the view that section 29 of the Punjab Local Council (Removal of Chairman, Vice‑Chairman and Members) Rules referred only to such disqualifications which a member might incur after his election. It is also contended that after the Secretary had withdrawn his order dated 30‑12‑1987 no dispute was left between the parties and as such the writ petition filed by the contesting respondents had become infructuous. It is also contended that the question whether the petitioners had been legally elected was a matter for the Election Tribunal to decide and as a matter of fact the election petitions had already been filed before the said Tribunal. In the circumstances, the High Court should have refrained from setting aside the election for now the matter was subjudice before a competent forum.

8. The contentions raised in support of these petitions need examination. Leave to appeal is granted. Security for costs in the sum of Rs.10,000 in each A petition. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any.

9. The circumstances under which the elections to the seats reserved for special interests were held, we are not inclined to stay the operation of the order within High Court.. The appeals may, however, be listed for hearing at Rawalpindi A.A./I‑74/S Leave granted