1. ' ANWAR ZAHEER JAMALI, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner Muhammad Shahid Alam, elected Town Nazim from Orangi Town in the City District of Karachi has challenged various actions taken by the respondents, whereby initially (before institution of this petition) vide order dated 20th December, 2002, ban was imposed on all accounts of Orangi Town Municipal Administration except on payment of salaries, pension allowances and maintenance/POL of sanitation vehicles, thereafter, by notification dated 1st February, 2003 they co-opted four members of Provincial Local Government Commission to carry out special inspection/audit of the accounts of Town Municipal Administration Orangi Town, Karachi; issued show-cause notice to the petitioner on 8-5-2003 and during the pendency of this petition further issued corrigendum dated 3-7-2003 and two notifications dated 5-12-2003 and 6- 12-2003, respectively restraining the petitioner to act as Nazim Orangi Town Municipal Administration Karachi until further orders, and notifying Sheikh Muhammad Feroze, Naib Nazim Orangi Town Municipal Administration to act as Nazim of the Town.Till furtherorders. Since at the time of institution of this petition on 17-5-2003, the two subsequent notifications and the corrigendum dated 3-7-2003 were not in the field against the petitioner, therefore, at the request of the petitioner, vide order dated 10-12-2003 this Court had allowed him to amend the petition accordingly. Such amended petition has been filed by the petitioner on 11-12-2003 with the following prayers: "i. Declare that the Impugned Order of December 20, 2002, Impugned Notification dated February 1, 2003, Impugned show-cause notice dated May 8, 2003, Corrigendum dated 3-7-2003, Impugned Order Notification dated 5-12-2003 and the Impugned Notification dated 6-12-2003 are without lawful authority and of no legal effect. Ii. Dire& the Respondents from interfering and restraining in the functions of the petitioner as Town Nazim. iii. Restrain the respondents from taking any action pursuant to the Impugned Order, Notification, Notice, Corrigendum, Overriding Notification and Notification dated 6-12-2003 against the petitioner. Iv. Suspend of the operations of the Impugned Order, Notification, Notice, Corrigendum, Overriding Notification dated 5-12-2003 and Notification dated 6-12-2003, with immediate effect. v.
2. Grant any other relief that this Honourable Court may deem fit, just and proper in the circumstances of the petition. Vi. Grant cost of the petition."
3. ' The, relevant facts forming background of this litigation as stated in the memo. Of petition, are that the petitioner is elected Town Nazim of Orangi Town and had been performing his duties and functions as such under the provisions of the Sindh Local Government Ordinance, 2001 (hereinafter referred to as the Ordinance). By order dated 1 1 th November, 2002 the respondent No.1 constituted a Joint Inspection Team to check the accounts as well as development work of Orangi Town Karachi. This team did not give any adverse findings against the petitioner. Thereafter without providing any opportunity of hearing to the petitioner respondent No.2, allegedly exercising its powers under section 4 of the Ordinance, vide its order dated 20th December, 2002 placed a ban and stopped operation of all accounts of Town Municipal Administration Orangi, except for payment of salaries, pension allowances and maintenance/POL of sanitation vehicles. According to the petitioner such action of respondent No.2 is without jurisdiction, mala fide and contrary to the principles of natural justice. Subsequent to this, the respondent No.1 constituted another enquiry committee purported tobe a committee under section 131 subsection (2) of the Ordinance, consisting of four members and such notification was issued on 1st February, 2003. The petitioner also termed this action of respondent No.1 as without jurisdiction wild outside the scope and functions of respondent No.1 under the Ordinance. On 8-5-2003 the petitioner was further served with a show-cause notice, purportedly issued under section 132(b) of the Ordinance, threatening disciplinary action under the Efficiency and Disciplinary Rules, 1973 against him. Error in this notice about applicability of E & D Rules, 1973 was subsequently rectified and this show-cause notice was duly replied by the petitioner on 17-5-2003. After filing of this petition respondents firstly issued corrigendum dated 3-7-2003, whereby they authorized Naib Town Nazim to act as Officiating Town Nazim, Orangi Town, Karachi, in the absence of Nazim Orangi Town till further orders and thereafter they issued two notifications dated 5-12-2003 and 6-12-2003 as referred above. According to the petitioner all such actions against him are without jurisdiction, mala fide, void, ultra vires and of no legal effect. The petitioner also referred in the petition relevant provisions of the Ordinance to add force to his pleas regarding actions of the respondents, challenged in this petition.
4. ' The respondents in their reply/parawise comments did not dispute issuance of various orders/notifications against the petitioner which have been challenged by him in this petition.
5. However, they stated that such actions against the petitioner are lawful and justified in view of the serious allegations against him.
6. ' Mr. Kamal Azfar, learned counsel for the petitioner, during the course of his arguments, narrated the relevant facts as stated in the memo. Of petition and made reference to various provisions of the Ordinance to fortify his submission that all actions of respondents impugned in this petition are mala fide, without jurisdiction and in glaring violation of the relevant provisions of the Ordinance.
7. Making specific reference to the language of seCtion 197 of the Ordinance learned counsel contended that this provision of law does not permit the respondent No.2 to take an action which 'is wholly against the scheme, spirit and mechanism of the Ordinance and would negate its very purpose and object of providing an independent administrative machinery for Local Government in the Province of Sindh at grass-root level. In this context learned counsel placed reliance upon the case of Fazlul Qadir Chowdhary v. Muhammad Abdul Haq (PLD 1963 SC 486).
8. ' In this case when the question of interpretation and scope of Article 224(3) of the Constitution of 1962, relating to the Powers of President for Removal of Difficulties came up for consideration before a Full Bench of Hon'ble Supreme Court it was held that clause (3) ofArticle 224 does not confer unfettered power on the President to make any amendments that he might choose in the Constitution, but power under this Article can be exercised only for the limited purpose of bringing the Constitution in operation and it should accordingly be restricted 'to those purely machinery arrangements vitally requisite for that purpose. It was further held that this Article was never meant to bestow power to change the fundamentals of the Constitution, and the difficulty contemplated by Article 224(3) was again a difficulty limited to the implementation of the Constitution and not any and every kind of difficulty. It was also held that the word "difficulty" could not receive such a large connotation as to comprehend within its scope a drastic alteration such as would revolutionize the scheme of the Constitution itself.
9. ' On the other hand Mr. Anwar Mansoor Khan. A.-G, Sindh, representing both the respondents in this petition vigorously supported and attempted to justify the impugned actions of respondents against the petitioner. He stated that the last two notifications dated 5-12-2003 and 6-12-2003 have superseded the earlier actions originally challenged by the petitioner in this petition. Learned counsel vehemently argued that there is long list of allegations of mat practices, mismanagement and misappropriation of Government funds against the petitioner and to meet this unforeseen situation the respondents were justified in taking action against the petitioner in terms of the above referred two notifications. To add force to his submissions in this regard learned A.-G. Also placed before us for our perusal a file which according to him contains confidential material regarding the enquiry process against the petitioner. He stated that holding of such enquiry would not have yielded any positive results in case the petitioner had been allowed during such period to hold his office of Nazim Town Municipal Administration Orangi Town, as the relevant record was under his possession and control. He candidly stated that in case on conclusion of enquiry against the petitioner he is found innocent and not guilty of the allegations levelled against him, he will be reinstated in his office without any delay. Learned A.-G. Also made comparison of the language of section 197 of the Ordinance relating to "Removal of Difficulties" with corresponding section 119 of the repealed Sindh Local Government Ordinance, 1979 and contended that difference in the language of these two sections is significant and meaningful and the respondent were well within their rights in issuing two impugned notifications by exercising their power under section 197 of the Ordinance, to meet the unforeseen situation created by the petitioner. However, learned A.-G.Was unable to distinguish or dispute the relevancy and applicability of the ratio of judgment in the case of Fazlul Qadir Chowdhary (supra) to the present case.
10. ' We have considered the arguments advanced by learned counsel for the parties and perused the material placed on record.
11. ' Before we proceed to examine the respective contentions of the learned counsel raised before us it will be advantageous to make reference to the preamble and various provisions of the Ordinance touched by the learned counsel in their arguments, specially those which relate to recall or removal of Town Nazim. This Ordinance, which came into force on 14th day of August, 2001 and is applicable to the whole of the Province of Sindh other than the area notified as cantonments under the Cantonment Act, provides that it has been enacted with the object to devolve political power and decentralize administrative and financial authority to accountable Local Government for good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at grass-root level. A careful reading of various chapters of this Ordinance reveals that to achieve object of this Ordinance schemes have been made to provide independent administrative machineries at different levels, free from the control of the Government, except within the parameters and the manner defined by the Ordinance itself.
12. Section 4 of the Ordinance provides that the Local Governments established under the Ordinance are required to function within the Provincial framework and adhere to the Federal and Provincial laws. Further in performance of their functions, the Local A Governments are required not to impede or prejudice the exercise of the executive authority of the Government. The involvement of the Government and its relationship with the Local Government has been visualized under Chapter XIV of the Ordinance (sections 127 to 133). While section 197 of the Ordinance relates to Removal of Difficulties and enables the Government to pass order, in order to remove any difficulty which may arise in giving effect to the provisions of this Ordinance. On the other hand, for smooth functioning of Local Governments different administrative set-ups have been provided at different levels. At District Government level such set-up is headed by Zila Nazim, who performs his functions in terms of section 18 (Chapter III) of the Ordinance. Another administrative set-up has been provided at Taluka/Town level which is headed by Taluka Nazim/Town Nazim, who perform their functions in terms of section 54 (Chapter V) of the Ordinance. A perusal of scheme of working of Taluka and Town Municipal Administration, which is relevant for the purpose of this petition, shows that by virtue of section 51 of the Ordinance all provisions relating to Taluka Municipal Administration, including sections 62 and 63, apply mutatis mutandis, to Town Municipal Administration. The above referred two sections, being relevant to the controversy, are reproduced as under:-- "62. External recall of Taluka Nazim.---(1) If in the opinion of theZila Nazim, the continuance in office of a Taluka Nazim is against the public policy or interest of the people or he is guilty of misconduct, the Zila Nazim may move a motion in the Zila Council Stating the grounds for the recall of Taluka Nazim.
(2) Where the motion referred to in subsection (1) is approved through a resolution passed by a simple majority of the total membership of the Zila Council, the Election Authority shall cause such resolution to be voted upon by the members of the Union Councils in the Taluka.
(3) Where the motion referred to in subsection (1) is approved by a simple majority of the total membership of the Union Councils in the Taluka, the Taluka Nazim shall cease to hold office from the date of the notification issued by the District Government under subsection (4).
(4) The result of the approval of the resolution of the Zila Council referred to in subsection (2) and approval of motion referred to in subsection (3) by the members of the Union Councils in the Taluka shall immediately be notified by the District Government in the official Gazette.
(5) Nothing contained in subsections (1) and (2) shall affect the provisions of section 161 in respect of removal of Taluka Nazim by the Chief Election Commissioner.
63. Internal recall of a Taluka Nazim.----(1) If in the opinion of a member of the Taluka Council, there is a reason to believe that the Taluka Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity to improve governance and the delivery of services, he may, seconded by another member of the Council, give a notice to move a motion in the Tlauka Council through Naib Taluka Nazim for recall of Taluka Nazim.
(2) On receipt of notice referred to in subsection (1), the Naib Taluka Nazim shall summon a session of the Taluka Council not earlier than three days but not later than seven days, if the Taluka Council is not already in session.
(3) Where the Taluka Council is already in session, the motion referred to in subsection (1) shall be taken up for deliberations on the next day from its receipt by the Naib Taluka Nazim.Ballot, the Election Authority shall cause a vote to be cast.By the members of Union Councils in-the District.
(5) Where the motion is approved by a simple majority of the total members of Union Councils of the Taluka, the Taluka Nazim shall cease to hold office from the date of notification to be issued in this behalf by the Election Authority.
(6) Where the motion fails in the Taluka Council, the proposer and seconder of such motion shall lose their seats both as Union Nazims and members of Taluka Council.
(7) The Taluka Nazim shall have the right to appear before the Taluka Council and address it in his defence.
(8) No motion for recall of Taluka Nazim shall be moved during the first six months of assumption of office of Taluka Nazim nor shall such motion be repeated before the expiry of one year from the rejection of previous motion."
13. A bare reading of these two provisions of the Ordinance would show that for the purpose of External recall (section 62) it is within the power of Zila Nazim to take action against the Town Nazim, if in his opinion his continuance in the office is against the public policy or interest of the people or he is guilty of misconduct. The procedure which is to be followed for such action has been detailed in the section itself. In addition to it by virtue of section 63, members of Town Municipal Administration can also initiate action against the Town Nazim for internal recall, if they have reason to believe that the Town Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity to improve governance and the delivery of services. The procedure which is to be followed for such action has been provided in the section itself. Thus, it is clear that on the allegations of misconduct, negligence or even corruption the Ordinance itself provides the mechanism for action against the Town Nazim. It will be pertinent to mention here that under section 23 of the Ordinance, similar powers, as conferred to Zila Nazim under section 62, have been conferred to Chief Executive of the Province. This distinction made by the law-makers in delegation/conferment of powers under the two parallel sections of the statute, one relating to external recall of Zila Nazim and the other for external recall of the Taluka Town Nazim, further makes it abundantly clear that the respondent No.2 has no direct role to play in the external recall or any similar action against Town Nazim. In our view, when details schemes have been provided under the statute for external or internal recall of Town Nazim, which amply covers the alleged unforeseen situation as asserted by the respondents tojustify their action against the petitioner then the provisions of section 197 of the Ordinance cannot be manoeuvred, stretchea or interpreted in a manner to empower respondent No.2 to take action at their end in a way to bye- pass such course and to destroy the whole fiber and scheme of the B statute. The submission of Mr. Anwar Mansoor Khan that change in the language of section 197 of the Ordinance, in comparison to section 119 of the earlier Ordinance XII of 1979 is significant and has paved way in favour of respondent No.2 for this purpose has also no force. Further in our view, the ratio of judgment in the case of Fazlul Qadir Chowdhary (supra) is fully applicable to the present situation and fortify the above conclusion as to the limited scope of section 197 of the Ordinance.
14. ' In addition to what has been discussed above, the perusal' of sections 128 and 129 of the Ordinance contained in Chapter XIV further demonstrates the intention of the law-makers to minimize involvement of Provincial Government in the affairs of Local Government. It will be seen that under section 128 of the Ordinance the Chief Executive of the Province or any officer specifically authorized by him can only issue directions to the District Government, through the concerned Zila Nazim for the following purposes:-- "(a) preventing any grave threat to public peace and order;
(b) handling emergencies and providing relief therefor; and
(c) protection and security of the people and the security andintegrity of the State or any part thereof."
15. Subsection (2) of section 128 further provides that on failure of Zila Nazim to make compliance with the directions in terms of subsection (1) issued by the Chief Executive of the Province and where the situation demands immediate action, the Chief Executive may require the Chief Secretary to direct the Inspector-General of Police and the District Coordination Officer concerned to take such action as the situation may necessitate. Further under section 129 the Chief Executive of the Province had authority to suspend only the Zila Nazim if in his opinion he is deliberately avoiding or failing to comply with the directions given by the Chief Executive. Such suspension is again subject to the ratification by the Provincial Assembly within thirty days according to the procedure prescribed under subsections (3) to (5) of section 129. It is pertinent to note that no such parallel powers have been conferred on respondent No.2 for any direct action against Town Nazim.. In other words, the Legislature did not intend to see any involvement of respondent No.2, the Chief Executive of the Province at such level.
16. ' We are no impressed by the submission of Mr. Anwar Mansoor Khan that since enquiry proceedings with reference to serious allegations of corruption are pending against the petitioner therefore, issuance of notifications dated 5-12-2003 and 6-12-2003 by respondent NO.2 was justified, rather necessary. There is hardly any need to observe that when the Ordinance does not permit actions of such nature against the petitioner then seriousness of allegations will not warrant or give legal cover to such actions of the respondents. To our query that whether the period from 5-12-2003 till this date, more than two months, was not enough for the Enquiry Committee or any other agency involved in the enquiry to conclude the enquiry, if that was the only reason for keeping the petitioner away from his office of Town Nazim, the learned A.-G. Was unable to give any satisfactory reply. Conversely, the submission made by Mr. Kamal Azfar that series of actions taken against the petitioner to keep him away from his office and to manage the affairs of Orangi Town Municipal Administration at the convenience of respondents are all mala fide and without jurisdiction, seems to have force. In our view, even if, for the arguments sake, there is any substance in the allegations level against the petitioner then for that purpose on one hand procedure could have been followed for his recall/removal as contemplated under sections 62 and 63 of the Ordinance relatitg to External recall and Internal recall or on the other hand appropriate legal actions could have been followed under other relevant laws of the country dealing with the cases of corruption and mal practices.
17. ' For the foregoing reasons we allow this petition in the terms that the notifications impugned in this petition are declared to be without lawful authority and of no legal effect.