2004 PLP 1903 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioners seek leave to appeal tinder Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, from consolidated judgment, dated 24-3-2004, passed by a learned Division Bench of the Lahore High Court, in Writ Petitions Nos. 12719, 12717, 13382, 1163, 1232, 1287, 12006, 12002, 12710, 10671, 10990, 11241, 11249, 211361, 14308, 3372 of 2003, 2508, 1789, 2624, 2625, 2590, 2591 of 2003/BWP, 4134 of 2003, 2087 of 2002, 7421, 11203, 11199, 3421, 9845, 11360, 2509, 2723 of 2003/BWP, 10629, 7982, 10613 of 2003, 429 of 2004, 8094, 9567, 10814, 10400, 11396, 2766, 11111, 11194, 11349 of 2003, 2458 of 2003/11WP and 11491 of 2003.

2. The petitioners were elected as Union Nazims or Naib Union Nazims, as the case may be, of the Union Councils, by direct vote based on adult franchise and joint candidacy, under the provisions of Punjab Local Government Election Ordinance No.V of 2000 (since repealed) (hereinafter referred to as the Election Ordinance). A number of petitioners were voted out by the requisite majority of the members of the respective Union Councils through the internal recall motions under the provisions of section 85 or 92 of the Punjab Local Government Ordinance, 2001 (hereinafter called as the Ordinance). However, in some of these cases, such internal recall motions were not yet moved or carried. The petitioners filed writ petition, calling in question the validity of the internal recall motion as well as the vires, of the provision of sections 85 and 92 of the Ordinance. The same were dismissed by a learned Division Bench of the Lahore High Court, Lahore, by the impugned judgment, dated 24-3-2004. Hence these petitions for leave to appeal.

3. Ch. Naseer Ahmed Bhutta, Advocate Supreme Court, the learned counsel for the petitioners (in C.Ps. Nos. 1204 to 1213 of 2004 and 1447-L of 2004 1463-L, 1464-L of 2004 ,argued that sections 85 and 92 of the Ordinance were discriminatory and ultra vires the provisions of the Constitution and the Ordinance itself. The Legislature should have made a provision whereby a recall motion could be moved and carried only by the electorate which had elected the Nazims and Naib Nazims and not by a different forum of members of Union Councils. The Nazims and Naib Nazims were elected through the same process of joint candidacy. Their relationship inter se was just like that of twin brothers. The procedure provided for the internal recall motion of Nazims by section 85 was different and more cumbersome than the one provided for in the case of Naib Nazims by section 92 of the Ordinance which was quite harsh and without any safeguards or safety valves. It was next contended that the provisions of sections 85 and 92 (ibid) were invalid on the touchstone of the preamble of the Ordinance. The Election to the seats of Nazims and Naib Nazims were held under the Election Ordinance and the Rules made thereunder which did not contain any provision for a motion of recall. They were assured the enjoyment of their full term of office. It was urged that the Nazims and Naib Nazims being similarly placed were required to be governed by the same procedure of internal recall motion. The High Court had fallen into error in upholding the validity of provisions of sections 85 and 92 (ibid) by treating the Union Nazims and Naib Nazims as distinct classes which was violative of equal protection of law as guaranteed by Articles 25 of the Constitution. There was no intelligible differentia between them. In this behalf, reliance was placed on the cases of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Government of Balochistan through Additional Chief Secretary v. Azizullan Memon and 16 others PLD 1993 SC 341; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641.

4. Sh. Zamir Hussain, Advocate Supreme Court learned counsel for the petitioners (in C.Ps. Nos.1091 and 1092, 1106, 1116 and 1118 of 2004) vehemently contended that the High Court had made an artificial distinction and classification between the Union Nazims and Naib Nazims and that the concept of reasonable classification had no nexus with their functions. It was further submitted that the High Court was not justified to decline to exercise its constitution jurisdiction merely, on the ground that the disputed questions of fact were involved. it was next, submitted that the procedure provided by subsection 441 of section 85 (ibid) had not been complied with in the case of Union Nazims. The Election Authority could not cause the internal recall motions, to be voted upon by the Members of the Village Councils and Neighborhood Councils which were still non-functional it was lastly argued that sections 85 and 92 of the Ordinance for the internal recall of tae Nazims and Naib Nazims were required to be strictly construed inasmuch as they would stand disqualified for re-election to any office of Local Government for a period of four years in terms of section 163 of the Ordinance.

5. Mr. Shahzad Shaukat, Advocate Supreme Court for the petitioners (in C.Ps. Nos.2005-L and 2006-L of 2004) submitted that in the cases of Subhanuddin v. National Reconstruction Bureau through Chairman and others PLD 2004 SC 125; Mrs. Naheed Akhter Khan and another v. City District Government. Karachi and others Civil Petition No.325-K of 2004. this Court had already granted leave to appeal to consider similar questions as were involved in the present cases. It was further pointed out that the Punjab Government had promulgated the Punjab Local Government (Recall Motion's Against the Nazims and Naib Nazims) Rides, 2003 with effect from 1-9-2003 after the recall motions against majority of the petitioners and others had already been carried by the Members of the Union Councils. He also relied on the case of Federation of Pakistan through Secretary, Election Commission, of Pakistan and 3 others v. Syed Ali Murad and others PLD 2004 SC 399 in support of the argument that bye-elections of Union Nazims and Naib Nazims could not be held without first holding the elections to the vacant seats of members of various Union Councils.

6. Mr. Muhammad Munir Peracha, Advocate Supreme Court, the learned counsel for the petitioners to C.P. No. 1650 of 2004 submitted that the Ordinance was an ordinary law. Its provisions were nor immune from challenge merely for the reason that previous sanction of the President was required by Article 268(2) read with Sixth Schedule of the Constitution for its amendment or repeal by the Legislature The validity of sections 85 and 92 the Ordinance could be examined and struck down by this Court being violative of Article 25 and other Articles of the Constitution.

7. Mr. Nazir Ahmed Ghazi, Advocate Supreme Court, the learned counsel for the petitioners (in C.Ps. Nos. 1642-L and 1643-L of 2004), submitted that under section 89(4) (ibid), a Naib Union Nazim was also empowered to preside over the meetings of the Union Council in the absence of Union Nazim. The learned counsel further contended that the provision, of sections 85 and 92 of the Ordinance were quite harsh entailing serious consequences of disqualifying the Union Nazims and Naib Nazims from being elected to any office of Local Government for a period of four years where a motion of recall was finally carried. Therefore, the said provisions were to be construed in a manner so as to avoid penal consequences as provided by section 163 of the Ordinance. The other learned counsel for the petitioners adopted the arguments of Ch. Naseer Ahmed Bhutta, Advocate Supreme Court.

8. On the other hand, Syed Shabbar Raza Rizvi; the learned Advocate-General Punjab, argued that the provisions of the Ordinance including section 85 and 9? thereof were protected in terms of Article's 270-AA of the Constitution and could not be called in question in any Court on any, ground whatsoever. He relied on the cases of Watan Party v. Chief Executive/President of Pakistan and another PLD 2003 SC 74 and Mehmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC

426. A reference to the provisions of sections 74 75, 80 and 81 of the Ordinance was made to demonstrate that the Union Nazims and Naib Nazims constituted a reasonable classification on the T basis of different and distinct functions assigned to them under the Ordinance. He further stated that the Nazims and Naib Nazims were separately defined it clauses (xxiii) and (xxiv) of section 2 of the Ordinance It was contended that in view of their distinct nature of functions and status the Nazims and Naib Nazims did not constitute the same class of persons. The provisions of Article 25 of the Constitution could not be said to have been offended if the Legislature had provided somewhat different procedure for the internal recall motions against a Nazim and a Naib Nazim. Reference was made to the cases of I.A. Sharwani and others (supra), Azizullah Memon and 16 others (supra), Messrs Gadoon Textile Mills (supra) and Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 at pages 549-550). It was further argued that the Ordinance had already been placed in Sixth Schedule of the Constitution with a view to give it a special Constitutional protection. Once a recall motion had been carried by the requisite majority of member of Union Council against a Nazira or a Naib Nazim, the discretionary behalf of writ jurisdiction could hardly be granted as laid down in the case of Mian Mushtaq Ahmed v. Deputy Commissioner, Sargodha anal 11 others 1982 SCMR

775. The learned Advocate-General brought to our notice that the Government of the Punjab, by a Notification dated 10-6-2004, promulgated the Punjab Village Councils and Neighborhood Councils Election Rules, 2004 for the constitution of the said Council and that the final phase of recall motions against Nazims would be completed shortly as required by section 85(4) of the Ordinance.

9. We have heard the learned counsel for the petitioners and the learned Advocate-General, Punjab at length. The Union Nazim and Union Naib Nazim are elected by direct and free vote as joint candidates based on adult franchise as provided by sections 87 and 148 of the Ordinance. The legal position and functions of a Union Nazim and Naib Union Nazim are laid down in the Ordinance and the Rules made thereunder. Section 75 of the Ordinance clearly says that the Union Nazim shall be the head of the Union Administration and that the Naib Union Nazim shall deputize him during his temporary absence. Section 80 of the Ordinance provides that:-- "(a) A Union Nazim shall provide leadership for Union-wide development and preparation of budget and annual development plan; (b) organize the management of inter-villages municipal infrastructure; (c) assist the Tehsil Municipal Administration in Spatial planning process; (d) constitute Musalihat Anjuman; (e) dispose of business of Union Administration; and (f) report to the concerned Authorities in respect of- (i) encroachment on State and Local Government property and violation of land use and building laws, rules and bye-laws; (ii) sale and trade of dangerous and offensive articles; (iii) environmental and health hazards; (iv) adulteration of articles of foods; and (v) breach of public watercourses within the area of the Union." Under section 81, the Union Nazim is personally responsible for any loss, financial or otherwise, flowing from the decision made by him personally or under his directions in violation of any provisions of the Ordinance or any other law and for any expenditure incurred without lawful authority. Under subsection (4) of section 89 (ibid) all meetings of the Union Council are required to be presided over by a Union Nazim and, in his absence, by the Naib Union Nazim. By section 90 of the Ordinance, it is his function to address the Union Council, at the commencement of first session, after its election and also each year to inform the Council of his plans and programmes for the said year and the performance of the Union Administration during the preceding year. He may also address the Union Council whenever he deems necessary to associate or consult the Union Council in the functioning of the Union Administration. He is required by virtue of section 92(2), to summon a session of the Union Council within three days of the receipt of the motion of recall against the Naib Union Nazim for deliberation by the Council, if it is not already in session. The Union Nazim has also been assigned the following responsibilities under the Punjab Union Administration (Rules of Business), 2002:-- (i) He is responsible for efficient administration and discipline and for proper conduct of the business assigned to the Union Administration and for the due execution of the sanctioned policy (Rule 3(4). (ii) He is empowered to distribute the work among the Secretaries of Union Administration (Rule 4). (iii) No important decision relating to the administration of the Union Council can be taken without his approval and decision taken by him under the provisions of the Ordinance is not to be varied, reversed or infringed without consulting him (Rule 5). (iv) He shall perform such functions and exercise such powers as are assigned to him under the Ordinance and the Rules of Business and that he is to ensure that the business of the Union Administration is carried in accordance with the provisions of the Ordinance and the Rules. (Rule 6). (v) He convenes weekly meetings of all the Secretaries to discuss important pending cases and questions of general interests concerning the Union Administration (Rule 9). (vi) He is responsible to ensure that citizens do not face any inconvenience due to absence of staff of the Union Administration (Rule 12(2)). (vii) The reports of the Monitoring Committees regarding Union Administration are required to be submitted to him for action who is then to inform the Union Council about the action taken on such reports (Rule 14). (viii) The Complaint Cell established under section 188 of the Ordinance is to function under his direct supervision (Rule 15). (ix) He is required to regularly inspect the working of office in Union Administration (Rule 16). (x) A reply to a reference received from the office of the Zila Mohtasib regarding the Union Administration is to be submitted for his approval (Rule 17). (xi) He may issue a directive to the Chairman of Village Council /Neighbourhood Council (Rule 18). (xii) All correspondence of the Union Administration is conducted through him (Rule 20). A Union Nazim has also been entrusted with certain functions under the Punjab Local Government (Taxation) Rules, 2001. He approves the preliminary taxation proposals (Rule 3(4)). As provided by Rule 4(1), a public notice in respect of each preliminary taxation proposal is issued by him. He hears objections and suggestions and finalizes the taxation proposals which are submitted to the Council for consideration and sanction (Rule 5). After sanction of the taxation proposals, he is to forward a copy of its notification for publication in the official gazette (Rule 9).

10. As stated above, it is only in the absence of a Union Nazim that the Naib Union Nazim may preside over the meeting of the Union Council. The Naib Union Nazim presides over the meeting of the Union Council for consideration of a recall motion against the Union Nazim under section

85. No other function has been assigned to him by or under the Ordinance or the Rules. It is the Union Nazim who occupies a primary and pivotal position. He is a Kingpin of the Union Administration as well as the Union Council.

11. The expression "deputize" and "deputy" have been defined in Black's Law Dictionary, 5th Edition, 1979, at page 398 as follows:

"Deputize: To appoint a deputy; to appoint or commission one to act as deputy to an Officer. In a general sense, the term is descriptive of empowering one person to act for another in any capacity or relation, but in law it is almost restricted to the substitution of a person appointed to act for an Officer of the law. Deputy: A substitute, a person duly authorized by an Officer to exercise some or all of the functions pertaining to that office, in the place and stand of the latter. One appointed to substitute for, another with power to sit for 'him in his name or behalf. A substitute for another and is empowered to act for him in his name and behalf in all matters in which principal may act. A Deputy is a substitute for another and is empowered to act for him in his name and behalf in all matters in which principal may.". It is thus clear that the Naib (Deputy) cannot be equated with the principal. Generally speaking, a deputy is one who is appointed as a substitute of another and empowered to act for them it his name or on his behalf. He is but the principal's shadow who does all things in the name of the principal. The principal and deputy do not stand on equal footing. The deputy performs only certain functions in the absence of principal. A surrogate carries with it the fact that he is alter ego for his superior charged with duties as well as responsibilities of his superior. Under the scheme of the Ordinance it seems that the office of Naib Nazim was created in order to cater for a contingent situation when the Nazim was unable to perform the duties and functions of his office. It is, therefore- difficult to say that a Union Nazim and the NAib Union Nazim constitute one and the same class of persons. The classification qua both of them is reasonable, rational or with intelligible differentia. The equality is amongst-equals and un equals cannot be treated as equals. Even in terms of Article 261 of Constitution, a person who acts in office is not to be regarded as a successor to a person who held that office before him or is the predecessor who holds that office after him.

12. As regards internal recall motion, section 85 of the Ordinance provides that after the receipt of a notice of recall against the Union. Nazim, a session of the Union Council shall be summoned within three days if the Union Council is not already in session. However, if the Council is already in session, the motion of recall shall be taken up the next day. If the recall motion is carried by-majority of members of the Union Council through a secret ballot, the same shall be caused by the Election Authority to be voted upon by the members of the Village Councils and Neighborhood Councils in the Union and if passed by a simple majority, the Union Nazim shall cease to hold office from the date of notification by the District Government. Section 92 of the Ordinance lays down the procedure of the recall motion against a Naib Union Nazim. Such a motion is to be taken up for deliberations immediately on its receipt where Union Council is already in session and if the motion is approved by the majority of the votes of total membership of the Union Council, the Naib Union Nazim shall cease to hold office. The difference in procedure seems to be of account of the distinct status and numerous important functions entrusted to Union Nazim. vis-a-vis Naib Union Nazim. They may not be considered to be falling within the same category of persons.

13. The question of reasonable classification and equal treatment or protection as envisaged by Article 25 of the Constitution was considered in a number of cases. In cases of Government of Balochistan through Additional Chief Secretary (supra) and Messrs Gadoon Textile Mills (supra), the following principles were enunciated by this Court in the context of equality clauses of the Constitution:

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction of reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities, imposed; (vii) that in order to make a classification reasonable it should be based;

(a) on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification. In Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397, it was held that the right relating to the equality of citizens was not violated, if the discrimination proceeded on a rational classification, having relevance to the underlying object of the legislation. In that case a married sister of the owner of agricultural property was held to be in a different position from that occupied by an unmarried or a widowed sister who had not received any share in the lands of her father, and who might ordinarily be entirely dependant upon her brother who held ancestral agricultural property. In Tingn v. Texas (1940) 310 U.S. 1417, the Supreme Court of United States took the view that the principle of equality did not mean that every law must have universal application to all persons who were not by nature, attainment or circumstances in the same position. The varying needs of different classes of persons required different treatment. Classification was the recognition of the relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment. In Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457, it was ruled that the Courts did not expect from legislature a "scientific accuracy in classification adopted. In Kedar Nath Bajoria v. State of West Bengal AIR 1953 SC 404, the Supreme Court of India took the view that the State was empowered to G distinguish and classify persons or things for the purpose of legislation and that a classification need not be scientifically perfect or logically complete. In another case of Satish Chandra v. Union of India AIR 1953 SC 250, it was observed that the guiding principle of equality was that all persons and things similarly circumstanced would be treated alike both in respect of privileges conferred and liabilities imposed.

14. From the above discussion, we find that the position of a Union Nazim is quite different in nature from that of a Naib Union Nazim. Therefore, the legislature in its wisdom is empowered to provide a somewhat different procedure for internal recall motion in respect of these offices notwithstanding that Nazim and Naib Nazim are directly elected as joint candidates under the provisions of sections 87 and 148 of the Ordinance based of adult franchise. It is matter of practical experience and not for us to determine whether the Nazim and the Naib Nazim are twin brothers or step-brothers.

15. Needless to observe that the Courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution. Reference may usefully be made to the cases of Mehreen Zaibun Nisa (supra). The Province of East Pakistan and others v. Sirajul Huq Patwari and others PLD 1966 SC 854, Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 and Darbar Patiala through S. Ajmer Singh, Managing Director of Patiala State Bank, Patiala v. Firm Narain Das Gulab Singh of Jagadhri through Kr. Kishore Saren and others AIR 1944 Lah. 302.

16. There does not seem to be much force in. the argument of the learned counsel for the petitioner that the Nazim and Naib Nazim could be impeached only by the electorate by whom; and the manner in which, they were elected and in no other manner and by no other forum or electoral college. There is no principle of universal application that only such forum or authority can remove or impeach an office holder which has appointed or elected him. For instance, the President of Pakistan is elected by the both Houses of'-Parliament and the members of all the four Provincial. Assemblies under Article 41 of the Constitution whereas he can be removed or impeached under Article 47 by a resolution passed at the joint sitting of the Parliament by votes not less than 2/3rd of its total membership.

17. Now we have to deal with the other contention of the learned counsel for the petitioner to test the validity of the provisions of the Ordinance on the touchstone of its preamble. The learned counsel was not able to point out any conflict between the preamble and the provisions of sections 85 and 92 of the Ordinance. In our view, the preamble of a statute is a useful aid for interpretation where its language is not clear, or the same is otherwise susceptible to more than one meaning. But the validity or vires of a statute cannot be tested merely on the basis of a preamble. So many statutes do not contain preambles. The preamble of a statute can neither restrict nor control the meaning of the enacting part of tire statute. If the enacting part of the statute goes beyond the preamble it is the enacting part which prevails and not the preamble. In the case of v. Basudev (1949) FCR 657, the Federal Court of India had the occasion of interpreting the true scope of the preamble of United Provinces Prevention of Black Marketing (Temporary Powers) Act, 1947. It was observed that whilst a. statement in the preamble of a statute as to its ultimate objective might be useful as throwing light on the nature of the matter legislated upon and must undoubtedly be taken into consideration it could not be conclusive on the question of vires of a statute. The Courts were to see whether the subject-matter of the impugned legislation was really within those powers. In the case of Darbar Patiala (supra), a Division Bench of the Lahore High Court, had taken the view that preamble of a statute was a good means of finding out ~0 its meaning and was a key to understanding of it but it could not furnish basis of declaring a provision of the Statute as ultra vires. In case of Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, Mr. Justice Saiduzzaman Siddiqui, J. (as His Lordship then was) observed that the preamble could not control the meaning of the enacting part of the statute and if the enacting part of the statute went beyond the, preamble it was the enacting part which was to prevail and not the preamble. In Murree Brewery Co. Limited v. Pakistan through the Secretary to Government of Pakistan and 2 others PLD 1972 SC 279. this Court took the view that the. preamble was a preliminary statement which usually set out the reason for making the Act of Parliament and the scope of the Act and that preamble was a legitimate aid in construing the enacting parts. In Attorney-General v. H.R.H. Prince Ernest Augustus of Honover (1957) 1 All. ER, the House of Lords observed that the preamble could not be made use of to control the enactments themselves where they were expressed in clear and unambiguous terms. The provisions of section 92 of the Ordinance cannot be held to be invalid or ultra vires merely because they are in conflict with, or otherwise provide more simple procedure than the one provided by section 85 in the case of a Union Nazim. Both provisions stand on equal footing. The validity of one provision of a statute cannot be tested on the S touchstone of another provision of the same statute. The vires of a legislative measure including an Ordinance are not to be examined with reference to any idea or philosophy extraneous to the Constitution but the Constitutional provisions themselves as was held in the cases of Fauji Foundation and another (supra) and Sh. Liaqat Hussain (supra). It was open to the legislature to provide the same or different procedure for internal recall motion for the offices of Union Nazim and Naib Union Nazim. The provisions of sections 85 and 92 of the Ordinance in the context of different procedure for internal recall motion against Union Nazim and Naib Nazim are valid and do not offend any provision of the Constitution. They do not suffer from vice of unreasonable classification or discrimination within the meaning of Article 25 of the Constitution. Ordinarily, it is not for us to question the wisdom of the legislature merely on the ground that a provision of law may work some inconvenience or hardship in the case of some persons unless it is violative of a Constitutional provision including fundamental rights. See the cases of the Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD. 1956 FC 200 and Prafulla Kumar Das v. State of Orisa AIR 2003 SC 4506 = (2003) 11 SCC

614. In the case of Sh. Liaquat Hussain (supra) it was held that a law if validly enacted could not be struck down on ground of mala fide but the same could be impeached if it was violative of a Constitutional provision. We do not consider it appropriate in this case to examine the extent and scope of validation and protection of laws enacted during the period of army takeover in terms of Article 270-AA of the Constitution. The impugned judgment of the High Court is plainly correct to which no exception can be taken.

19. For the forgoing reasons, we do not find any merit in these petitions which are dismissed and leave to appeal is refused accordingly. M.B.A./G-26/S Petitions dismissed.