' This single judgment is going to dispose of the instant writ petition as well as Writ Petition No,3867 of 2003/BWP (Allah Wasaya v. Additional District Judge, Chishtian and 2 others). No,3871 of 2003/BWP (Allah Wasaya v. Additional District Judge, Chishtian and 2 others), No,1036 of 2004/BWP (Bahawal Khan alias Muhammad Iqbal v. Chairman, Conciliation Court and 3 others) and No,2480 of 2004 (Allah Wasaya and another v. Chairman, Conciliation Court and 2 others) as common questions of law and facts are involved therein.
2. The facts forming the background of these writ petitions are that Muhammad Javed, Ghulam Yasin, Khuda Bakhsh and Muhammad Suleman, respondents filed separate suits for recovery of different amounts against the writ petitioners before the Chairman, Conciliation Court, Union Council No,57, Chishtian. The suits were decreed and the appeals, filed against those judgments and decrees, met with the same fate on 15-11-2003 from learned Additional District Judge, Chishtian. Aggrieved thereby the petitioners have preferred these writ petitions.
3. Ch. Manzoor Ahmad and Mrs. Samina Qureshi, Advocates, appearing on behalf of the petitioners submit that the law enacted through the Conciliation Courts Ordinance, 1961 (hereinafter referred to as the Ordinance of 1961) has become dead and unenforceable due to following reasons/grounds:--
(a) Section 2(ff) of the Ordinance of 1961 had provided that "Law relating to Local Government" means the Punjab Local Government Ordinance, 1979 (hereinafter called the Ordinance of 1979).
According to the learned counsel, the Ordinance of 1979 has been repealed by section 196(1)(iii) of the Punjab Local Government Ordinance, 2001 (hereinafter to be referred as the Ordinance of 2001).
As there is no Ordinance of 1979 in existence and no substitution has been provided to clause (ff) of section 2 of the Ordinance of 1961 and in the new law of the Ordinance of 2001, no provision with regard to saving of the laws have been made, the clause (ff) has become useless and inoperative, affecting adversely the composition of Conciliation Courts.
(b) According to the learned counsel, Conciliation Courts are constituted under section 5 of the Ordinance of 1961. As per subsection (2) of section 5 of the Ordinance of 1961, Conciliation Courts are to be presided over by the Chairman of the Union Council but in the present circumstances, no post of Chairman is in existence and no one can be designated as Chairman of any local council, therefore, the Ordinance of 1961 cannot be activated and made applicable for the composition of Conciliation Courts.
(c) It has further been argued by the learned counsel that the Union Councils do not exist under the law and so the Wards which were the creation of the Ordinance of 1979.
(d) The provision of section 196(1)(iii) of the Ordinance of 2001, all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union.
Councils created under the Ordinance of 1979 were dissolved, due to repeal of the Ordinance, 1979 as per force of subsection (1) of section 1.96 of the Ordinance of 2001. To clarify it more, learned counsel have laid stress upon the fact that no saving clause was given to the provisions of the Conciliation Courts, therefore, the provision of section 196 of the above noted Ordinance of 2001 cannot be invoked to save the life and existence of Conciliation Courts. Section 196(2) of the Ordinance of 2001 has not rescued the life of the Ordinance of 1961. At the most, it can be said to have saved thing done or actions taken under the Ordinance of 1979, before its repeal.
(e) By providing a new institution of Musalihati Anjuman under section 102 of the Ordinance of 2001, life of the Ordinance of 1961 has expired and those Courts have become a dead horse.
(f) Referring to subsection (2) of section 102 of the Ordinance of 2001, learned counsel have submitted that this new institution cannot be presided over or its constituents are not the members of Union Council and a new concept of Musaleheen (Conciliators) has been enacted, therefore, previous law of the Ordinance of 1961 has lost its efficaciousness.
4. Answering to the submissions of petitioners' learned counsel, the learned A.A.-G. Has stated that the Ordinance of 2001 has saved the life of the Ordinance of 1961 because subsection (2) of section 196 of the Ordinance of 2001 has provided as such It has further been intimated by the learned A.A.- G. That the new law has only changed the nomenclature of the posts, otherwise the same members of the wards are existing in the new law and the Musalihati Anjumans are not the same Courts, which were created by the Conciliation Courts under Ordinance of 1961. It has been argued that new concept of Musalihati Anjuman is a different institution and not that of Conciliation Courts.
5. Precise and concise question raised by the learned counsels for the petitioners and to be answered through this judgment is as to what is the impact of repeal of the Ordinance of 1979 upon the life and existence of the Ordinance of 1961? And whether after the repeal of the aforesaid Ordinance of 1979, the Conciliation Courts can be constituted or not?
6. To dig out the provisions and real intention of the Legislature, it is necessary and essential to refer to those provisions of law, which are required perusal and references. First of all the learned counsels for the petitioners have referred to section 2, clause (ff) of the Ordinance of 1961, which is as follows:- 2.(ff). 'Law relating to Local Government' means the Punjab Local Government Ordinance, 1979 (Punjab Ordinance No,VI of 1979), the Sindh Local Government Ordinance, 1979 (Sindh Ordinance No,XII of 1979, the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P.
Ordinance No,IV of 1979), the Balochistan Local Government Ordinance, 1980 (Balochistan Local Government Ordinance No,II of 1980), the Capital Territory Local Government Ordinance, 1979 (XXXIX of 1979), or, as the case may be, the Cantonment Act, 1924 (II of 1924)."
' Relevant to this clause is also clauses (i) and (j) of section 2 of the Ordinance of 1961, which are also reproduced below:-- "2(i) 'Union Council' means a Union Council constituted under a law relating to a Local Government and, except in the schedule, includes a Town Committee so constituted;
(j) "Ward" means a ward, an electoral unit or any electoral ward of a city, Municipality or Cantonment constituted under a law relating to Local Government."
7. The other sections of the Ordinance of 1961, which require the interpretation .By this Court are sections 4 and 5. The same are reproduced hereunder for ready reference:-- "4. Application for constitution of a Conciliation Court.--- (1) Where a case is, under this Ordinance, referable to conciliation any party to dispute may, in the prescribed manner, and on payment of the prescribed fee, apply to the Chairman of the Union Council concerned [or, as the case may be, to the member representing the ward, or, in the case of a ward which has more members than one, to such one of them as may be determined in the prescribed manner,] for the constitution of a Conciliation Court for the settlement of the dispute, and unless the Chairman [or, as the case may be, the member], for reasons to be recorded in writing, rejects, the application, he shall proceed to constitute, in the prescribed manner, a Conciliation Court for the purpose: ' Provided that no application under this section shall be made against person of .Unsound mind.
(2) Any person aggrieved by an order of rejection under subsection (1) may, on the ground that the order is mala fide or substantially unjust, prefer, in the prescribed manner and within the prescribed time, an application for revision to the Controlling Authority, or to such other authority as may be prescribed.
5 Conciliation Courts, their composition, etc.--- (1) a Conciliation Court shall be a body consisting of a Chairman and two representatives to be nominated, in the prescribed manner, by each of the parties to the dispute.
(2) The Chairman of the Union Council, [or, as the case may be, the member representing the ward, or, in the case of a ward which has more members than one, such one of them as may be determined in the prescribed manner,] shall be the Chairman of the Conciliation Court, but where he is, owing to illness or any other cause, unable to act as Chairman, or does not, on account of any personal consideration, wish to do so, or his impartiality is challenged by any party to the dispute, any other person appointed in the prescribed manner not being a person nominated by any party, shall be the Chairman of the Court.
(3) If either party to the dispute consists of more than one person, the Chairman shall call upon the persons constituting that part to nominate the two representatives on its behalf, and if they fail so to nominate, shall authorize anyone of such persons to do so, and thereupon the person so authorized shall alone have the right to nominate such representatives.
(4) Where representatives required under this section to be nominated are not nominated within the prescribed time, then---
(a) if the case falls under Part I of the Schedule, the Conciliation Court shall, without such representatives, be deemed to have been validly constituted for the purposes of this Ordinance, and conciliation shall proceed accordingly; and
(b) if the case falls under Part II of the Schedule the *[Court] shall issue a certificate that conciliation has failed."
8. According to section 4 of the Ordinance of 1961, when a party to a dispute intends to get the constitution of a Conciliation Court under the above noted Ordinance of 1961, it has to apply to the Chairman of the Union Council concerned, or to the members representing the ward or if there are more members, then anyone of the members of the ward. Upon the receipt of this application, the Chairman or the member, as the case may be, whom such an application under section 4 of the Ordinance of 1961 has been presented, has to form the Conciliation Court. Section 5 of the Ordinance, 1961 prescribes the manner of composition of the Conciliation Court. In other words a Conciliation Court, according to section 5 of the Ordinance of 1961, is a Court consisting of three persons, one of them is the Chairman and the other two are the representatives to be nominated by each of the party to the dispute. From the reading of this section 5 of the Ordinance of 1961, in fact the Chairman of the Union Council or the member representing the ward can be the Chairman of the Conciliation Court, if a member has been asked to officiate under section 4 of the Ordinance of 1961. Even according to section 5 of the Ordinance of 1961, the Chairman of the Union Council is not the sole person, who in all situations/events is to act as Chairman of the Conciliation Court. He can be replaced and his office for the purposes of Conciliation Courts can be enjoyed/officiated when the following situations arise:--
(i) The Chairman is unable to act due to his illness;
(ii) does not on account of any personal consideration wish to preside that Court;
(iii) his impartiality is challenged by any party to the suit;
(iv) any other person is appointed in the prescribed manner for the office of Chairman of the Court; or
(v) due to any other cause.
9. There is another important fact to be dilated upon is that the Chairman is the Chairman of a Union Council or he is a member of the ward. In other words, a member of a ward of a Union Council can become Chairman' if an application is given to him to act as Chairman under the Ordinance of 1961. For the nomination of two representatives, I have not found any limitation or pre- condition from the aforesaid law that those representatives must be members of the Union Council concerned. The parties to the dispute have been granted the choice to nominate any person whether member or not to act as their representative in the constituted Conciliation Court. So, from this discussion, the sole person, who is necessarily to. Be Chairman of the Conciliation Court is the person, who has to act through election/ selection/nomination held under any Government Ordinance is the only person who has to become the Chairman and has to be borrowed from a Local Council. This interpretation is supported by the fact, when the elected representatives' councils were suspended and the administrators were appointed and they were authorized to act as Chairman of the Conciliation Courts.
10. The next question is as to what is the impact of the referred repealed law (Local Government Ordinance, 1979) found in clause (ff) of section 2 of the Ordinance, of 1961, especially upon the composition of Conciliation Courts? To be more explicit on this proposition, learned counsels' contention is that with the repeal of the Ordinance of 1979, Union Councils constituted and wards created under that law had vanished. Therefore, the Chairman who was the Chairman of Local Council was not officiating/holding the post of Chairman at, present, due to the enforcement of new law of Ordinance of 2001, which has brought drastic changes not only in the constitution of Local Councils but in their powers/jurisdiction and concept also. The office of Chairman of Local Council created by the Ordinance of 1979 is nowhere provided in the new law, and section 196 of the Ordinance of 2001 has repealed the old law of Ordinance of 1979. But clauses (ff), (i) and (j) of the section of Ordinance of 1961 having not been substituted by a new authority/ Member/Tehsil Nazim/District Nazim or by the Ordinance of 2001, the Conciliation Courts have become an old story having no legal presence and existence. The Conciliation Courts are only in existence in the statute book, having no physical life and existence and these Courts cannot be constituted under the present enacted Ordinance of 2001.
11. The learned A.A.-G. Has tried to defend the constitution of the Local Councils by referring to the provisions of subsection (2) of section 196 of the Ordinance of 2001 to contend that the laws made under the repealed Ordinance of 1979, which were not inconsistent with the provisions of this Ordinance were saved and continued to be in force until amended or varied by the competent authority. The old subsection (2) of section 196 of the Ordinance of 2001 is reproduced hereunder for ready reference:- "196(2). Notwithstanding the repeal of the Punjab Local Government Ordinance, 1979 (VI of 1979), and dissolution. Of all Metropolitan Corporations, Municipal Corporations, Municipal, District Councils, Municipal Committees, Town Committees and Union Councils created 'under the Punjab Local Government Ordinance, 1979 (VI of 1979), under subsection (1), subject to sections 4 and 23 of the Punjab General Clauses Act, 1958 (W.P. Act VI of 1956), all rules, regulations and bye-laws made under the repealed (Punjab) Local Government Ordinance, 1979, so far those are inconsistent with the provisions of this Ordinance shall continue to be in force until amended or varied by the competent authority: ' Provided that, until otherwise decided by the Government, the Local Government Boards established under the Punjab Local Government Ordinance, 1979 (VI of 1979), for the administration of officers and officials of the Local Council Service shall continue to function."
12. It may be noted here that this subsection (2) was substituted by another subsection (2) through the Punjab Local Government (Fifth Amendment) Ordinance No,XXXV of 24th June, 2002. So, this provision, referred to by the learned A.A.-G. Is not on the statute book.
13. I have examined minutely the provisions of section 196 of the Ordinance of 2001 and cannot agree with the contention of the learned A.A.-G. That this provision was savior of the Conciliation Courts.
14. It may be- pointed out here that section 196 is the repeal and saving section. It has only saved those things done which are explained in subsection (2) of the aforesaid section 196. But the question is as to whether this section has got any repercussions on section 2, clauses (ff), (i) and
(j) of the Ordinance of 1961. The aforesaid clauses were not saved and cannot be presumed to have been saved by this section 196 of the Ordinance of 2001 because those clauses were not creation of the Ordinance of 1979. The Ordinance of 1961 was in fact an independent created enactment. It has only borrowed the provision for the purposes of providing definition in clauses of section 2 of the Ordinance of 1961, therefore, the Ordinance of 1979 was not the creator of the provisions of the Ordinance of 1961. The provisions of the Ordinance of 1979 had not given birth to Ordinance of 1961. So, section 196 cannot be referred to as savior of those provisions of section 2 of above referred Ordinance of 1961.
15. In fact after making the efforts and keeping in view the above laws, the provisions of the Ordinance of 1961, are to be interpreted in such a way so as to save their life and existence unless contrary intention appears in the new enacted law: The reference of learned counsel to section 102 of the Ordinance of 2001, which has created a new institution of Musalihati Anjuman and on the basis of which, learned counsel for the petitioners have submitted that Conciliation Courts have become a dead horse, cannot be accepted. Musalihati Anjuman created under section 102 of the Ordinance of 2001 is a new creation of this Ordinance of 2001 and cannot be equated or be considered as substitute of the Conciliation. Courts as no such intention appears from the provisions of section 102 or from the Ordinance of 2001. Although the creation of multiple and various institutions has been provided for the settlement of disputes of the public yet this concept cannot be appreciated because' manifold and large number of Courts/Tribunals/Forums unless necessary by compelling circumstances, is not conducive to the benefit of general public. Because general public would be pushed into labyrinths and instead of getting relief, they would be perplexed and lose interest for getting justice from different Courts/Tribunals/Forums/Authorities. I have not found any nexus of Musalihati Anjuman with that of Conciliation Courts as to declare the law of Conciliation Courts to have become inoperative and infructuous.
16. In fact, according to my mind, section 7 of the West Pakistan General Clauses Act, 1956 has come to rescue to save the life and existence of Conciliation Courts. The principle framed under that section is that when a law has been repealed and afterward the same law with modification or without modification is re-enacted, then the reference in any other enactment or in any instrument to provision so repealed shall unless a different intention appears, be considered as reference in any other enactment or in any instrument to provision so repealed shall unless a different intention appears, be considered as reference to the provision so re-enacted. To be more clear on this point, it can be seen that the Ordinance of 1979 with regard to the Local Government was repealed and a new Ordinance of 2001 was re-enacted, so as per force of section 7 of the West Pakistan General Clauses Act, 1956, the reference contained in the provisions of Ordinance of 1979 shall be construed and be presumed to have been placed upon re-enacted law of the new enacted provisions of Ordinance of 2001, unless a co0ntrary intent appears from the new Ordinance of 2001.
17. So, the words "Punjab Local Government Ordinance, 1979", used in section 2(ff) or "Union Council" as provided in clause (i) or "ward" in clause (j) of section 2 of the Ordinance of 1961 has to be construed and deemed to have been referred to the new enacted law of Ordinance of 2001.
Therefore, the office of Chairman, which is referred to in. Sections 4 and 5 of the Ordinance of 1961 would be presumed to have been substituted by Union, Tehsil, District and their heads i,e, Nazims to be Chairman as found and envisaged by Ordinance of 2001. I am strengthened in this view by the following authorities:-- ' Musa Kazimi v. K.M. Sheriff and another AIR 1959 Mad. 542, ' The University of the Punjab, Lahore and 2 others v. Rehmatullah PLD 1982 Lah. 729, Gulab Chand v.
State and another 1963(2) Crl.LJ 589 (Vol.) 67, C.N.177.
18. It may be noted with benefit that the Local Government since its inception is continuing its perpetual life through one or other enactment. Although it is changing its apparent frame, shape and name; yet the purpose and intent is the same, to provide good governance to the general public through their local representatives. Therefore, the law of Local Government, which is framed and repealed, enacted and reenacted have got (generally) the same words, meaning, scope, interpretation and reference with some variations. Therefore, viewed from this angle, Local Councils created under the Ordinance of 2001, are the same Local Councils with some modification, alterations, substitutions, somewhere expanding and on the other situation increasing or decreasing the powers but the perpetual succession has remained the same. So, the words used in Ordinance of 1961 are to be considered with reference to the Ordinance of 2001.
19. Accordingly, it is held that the Conciliation Courts had not been abolished and the law enacted through the Ordinance of 1961 still holds the field and is not obsolete. The Musalihati Anjuman, created under the Ordinance of 2001, are new created institution having no repercussions on the Conciliation Courts, created under the Ordinance of 1961.
20. As regards the facts in all these writ petitions, it is a common fact that all the suits filed in the concerned Conciliation Courts were not based on any written contract. So, the Conciliation Courts could not be constituted and the suits could not be entertained, heard and decided by the Conciliation Courts. The following citations are supportive of the above-noted proposition:- ' Zamiruddin Ahmad v. Havas Khan PLD 1969 SC 57; Maulvi Mehraj Din v. Shah Muhammad and others 1985 MLD 364; Muhammad Hussain Jaffri v. Mst. Mariyam Bibi and 2 others 1985 CLC 451 and Abdur Rehman v. Hamid Khan 1988 SCMR 1146.
21. It has also been argued by the learned counsel appearing on behalf of the writ petitioners that the parties to the suits were not of the same Union Council or of the wards of the same city, therefore, Conciliation Courts had no jurisdiction to entertain and adjudicate the suits, but this and the other objections raised are not being discussed as the judgments and decrees of these Courts are not being upheld due to above-noted fact of these suits having no basis of written contract.
22. The result of the above-noted discussion is that law of the Ordinance of 1961 is although in existence and is operative yet the decisions of all these suits by the respective Conciliation Courts against which the above mentioned writ petitions have been filed, are not sustainable in the eye of law, because of the suits entertained on the basis of alleged oral contracts. Accordingly, all the writ petitions are accepted and the impugned judgments and decrees passed by the Conciliation Courts in these writ petitions are declared illegal and unlawful, leaving the parties to bear their own costs.