1. ' MAQBOOL BAQAR, J.---Through this petition, the petitioner, who is Nazim, Union Council, Mitho Khoso, Taluka Tando Adam, District Sanghar, has challenged the Sindh Local Government (Election Authority) Rules, 2004, as having been framed without lawful authority and of no legal effect.
2. ' The impugned Rules, before being promulgated, vide Notification dated 18-6-2004, published in the Sindh Government Gazette dated 22-6-2004, were, as required by subsection (3) of section 191 of the Sindh Local Government Ordinance, 2001 (SLGO, 2001), published in the Sindh Government Gazette dated 10-6-2004, soliciting objections and suggestions in respect of the said proposed Rules. Such objections and suggestions were required to be sent to the Secretary, Government of Sindh, Local Government Department, within a period of seven days of the said publication.
3. According to the petitioner, the aforenoted publication dated 10-6-2004 came to the knowledge of the petitioner and other Nazims on 16-6-2004, whereupon they tried to transmit their objections to respondent No,2, Secretary, Local Government, through fax, but could not do so as the fax machine was out of order. However such objections/suggestions were sent by Zila Nazim Badin to the Chief Secretary, Government of Sindh through fax and on 16-6-2004 the petitioner sent his objections/ suggestions regarding the proposed Rules to the Secretary Local Government, Government of Sindh and the Election Authority Sindh, the respondents Nos.2 and 3, and also to the Chief Election Commissioner by courier service. Such objections/suggestions were also submitted by the petitioner to the respondent No,2, personally on 17-6-2004. However, the Chairman of respondent No,3, advised the respondent No,2, not to accept the said objections/suggestions, as according to him time for filing objections/suggestions had expired, and sought immediate publication of the Rules. It is further alleged that the respondent No,2 being dissatisfied with the above contention of the Chairman of Respondent No,2, referred the matter to he Secretary Law for legal opinion. The Secretary Law in response opined that the aforesaid objections/suggestions were time-barred and were not required to be considered. It is contended that the impugned Rules are violative of the provisions of, Article-2 of Sindh Local Government Election Order-VIII of 2000, sections 150, 164 and 190(3) of Sindh Local Government Ordinance, 2001, and Rule 3(1) and Chapter-V of Local Government Election Rules, 2000, and are also in conflict with the judgment of he Hon'ble Supreme Court in the case of Khawaja Ahmed Hussain v. Government of Punjab and others in Civil Appeal No, 1390/2003 (PLD 2004 SC 694). It is further contended that the Rules have been framed/promulgated, without affording an opportunity of hearing to the petitioner and other objectors and in disregard of such objections. The other contention raised by the petitioner is that the Notification dated 9-6-2004, containing the proposed Rules ought to have been sent to the petitioner and other Nazims through post and the same should have been publicized through electronic and print media and further that sufficient time should have been given for submitting objections/suggestions in respect of the proposed Rules. It is urged that the respondents Nos. 1 and 2 had no jurisdictions to frame the Rules without deciding the objections/suggestions and further that the Rules as framed/promulgated are against the democratic decentralization and the welfare of the people.
4. ' Comments to the above petition were filed on behalf of the respondents Nos.2 and 3, whereas, respondent No,4, filed his counter-affidavit.
5. ' The instant petition was filed on 10-8-2004, and as noted above, the impugned Rules were promulgated and so published, vide Notification dated 18-6-2004, in the Sindh. Government Gazette dated 22-6-2004. The impugned Rules have been framed and promulgated by the respondent No,1, under and in terms of section 191 of the Sindh Local Government Ordinance, 2001.
6. In terms of subsection (3) of section 191 such Rules, before the same could be promulgated and notified .As such, were to be published in the official Gazette. The Rules were accordingly published in the official Gazette dated 10-6-2004 and in terms of the said publication, objections/suggestions in respect of the proposed Rules were to be sent to the Secretary, Local Government Department, Government of Sindh within a period of seven days of such publication. Neither section 191 or any other provisions of the Sindh Local Government Ordinance, 2001 nor any provisions of any other relevant Law require publicizing such proposed Rules through print or electronic media or to be sent to Nazims as contended. The contention of the petitioner that before adopting the Rules the petitioner and other objectors ought to have been given an opportunity of hearing is also misconceived as section 191 of the SLGO, 2001 does not require any personal hearing in that regard.
7. It is true that contrary to the contention of the respondent No,1, the objections/suggestions by the petitioner, as evident from the acknowledgement of receipt dated 17-6-2004 (annexure E-1 to the petition), were submitted within the prescribed time. However non-consideration of the said objections/suggestions per se would not render the promulgation of the Rules illegal, or without authority.
8. ' It is well-entrenched principle of interpretation of statutes that the rules made under statute must be consistent with, the statute under which they are made, and that rules cannot repeal or contradict express provisions of the statute, from which they derive their authority. It is equally well- recognized principle that if the rules framed under a statute, are in excess of the provisions of such statute or are in contravention of or inconsistent therewith or are repugnant to any well- established principle of statute, such rules must be regarded as ultra vires of the statute and cannot be given effect to.
9. ' The petitioner, in order to obtain a declaration sought through the instant petition, was thus required to show that the impugned Rules were either directly repugnant to the general purpose of SLGO, 2001, or the general principle of said Ordinance or that the Rules are not in consonance therewith or were in excess of or inconsistent with the provisions of the said enabling Ordinance.
10. But, despite being repeatedly called upon, to point to any of the impugned Rules as being so plagued. The counsel for the petitioner could only point to rule 14 of the impugned Rules as such. He however, without specifying any particular rule, submitted that the impugned Rules are inconsistent with sections 150, 164 and 190 of SLGO, 2001. We have examined the said sections and may observe that section 150 of SLGO, 2001 provides that the Local Government elections under SLGO, 2001, shall be conducted by the Chief Election Commissioner, in pursuance of the Local Government Elections Order, 2000. Section 190 provides that appeal against orders passed in pursuance of SLGO, 2001 or rules or bye-laws made thereunder shall be preferred before such authority in such manner and within such period as may be prescribed, and in terms of section 164, SLGO 2001, notifications of elections, by-election, of the result of such election and of resignation, removal, or recall of a member, Nazim or Naib Nazim are to be issued by the Chief Election Commissioner.
11. ' Whereas impugned Rules, as can also be seen from the title of the said Rules, pertain to the Election Authority as envisaged by explanation to section 24 of SLGO, 2001 and deals with the Constitution, nomination and appointment of the said Authority in consonance with the said provisions. The impugned Rules specify the procedure and mechanism for internal and external recall motions against the Nazims and Naib Nazims of various tie of Local Government as contemplated by sections 24,47,62,63, 72,84 and 85 of SLGO, 2001 and specify powers and functions of the Election Authority in relation to the said recall motions, in consonance with the various provisions, spirit and purpose of SLGO, 2001 and Sindh Local Government Election Rules, 2000, such powers and functions are neither repugnant to the Election Rules nor do they impinge upon any such rules. We may observe here that issuance of Notification of removal or recall of a member, Nazim or Naib Nazim as provided for by section 164 -of SLGO, 2001 certainly falls within the exclusive domain of the Chief Election Commissioner and none of the impugned Rules confer such power to the Election Authority. Although in terms of Rule 27(2) of the impugned Rules, results of voting on the recall motions, declared and authenticated by the Election Authority are required to be notified by the Government, however the functions and power to issue notification of removal or recall of a Nazim or a Naib Nazim, as noted above still remains with the Chief Election Commissioner.
12. ' We shall now proceed to examine the vires of Rule 19 of the impugned Rules, the-only rule singled out by the learned counsel for he petitioner as ultra vires of SLGO, 2001. The learned counsel in support of his contention had relied on the judgment of the. Hon'ble Supreme Court in the case of Ahmed Hasan v. Government of Punjab (PLD 2004 SC 694), whereby the Hon'ble Supreme Court has held rule 14 of the Punjab Local Government (Recall Motions against the Nazim and Naib Nazim) Rule, 2004, which rule is analogous to and, couched in almost similar language as is section 19 of the impugned Rules. The relevant portion of the said judgment is reproduced hereunder:- '41. We have no hasitation in our mind after having examined the provisions of rule 14 of the rules, that it is not inconsistent with the provisions of section 63 of the Ordinance. There is neither any logic nor reasoning behind such substitution as allowed by the rules whereby a public functionary can be substituted with that of a bureaucrat. The speculative misuse of powers can be prevented by invoking the provisions as contained in section 63(4) of the Ordinance which provides that if the motion referred to in subsection (1) of section 63 is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the Tehsil. It can be done within a short span of time, which would eliminlate the possibility of misuse of power of Nazim or Naib Nazim. The second phase concerning the recall motion a envisaged in section 64(4) of the Ordinance which otherwise should be completed at the earliest enabling the house to elect the new Nazim which would be in the interest of public and moreso, there would be no occasion for suspicion/doubts, abuse of authority and misuse of power. The subordinate power of framing rules granted by the statute cannot be exercised to override the express provisions of the statute itself, therefore. Rule 14 of the Rules is ultra vires of the Punjab Local Government Ordinance and cannot be given effect to. It is well- settled by now that "a statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute.
13. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule-making authority and the rules framed under an enactment must be consistent with the provision of said enactment. The rules framed under a, statute, if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid. The Rule-making authority cannot clothe itself which power which is not given to it under the statute and thus the rules made under a statute, neither enlarge the scope of the Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force." Pakistan v. Aryan PETRO Chemical Industries (Pvt.) Ltd. 2003 SCM R 370; Ziauddin v. Punjab Local Government 1985 SCM R 365; Hirjina Salt Chemicals (Pak) Ltd. v. Union Council Gharo 1982 SCM R 522; Mehraj Flour Mills v. Provincial Government 2001 SCM R 1806 and Collector of Sales Tax v.
14. Superior Textile Mills Ltd. PLD 2001 SC 600.'
15. ' Rule 19 of the impugned Rules which, as noted above is couched in almost similar language as is Rule 14 of the Punjab Local Government (Recall Motions against the Nazim and Naib Nazim) Rule, 2004, reads as follows:-- "19. (1) When the motion for recall of Nazim or Naib Nazim of a council has been approved under sections 24, 47, 63, 72 and 84, subsection (2) of sections 62 and 84, the Election Authority may restrain the Nazim or Naib Nazim from performing his functions till the declaration of result of the votes to be cast by the members of the respective councils to ensure free and fair exercise of right of vote by the members.
(2) Where the Election Authority restrains a Nazim or Naib Nazim from performing his functions under sub-rule (1), the Government may nominate any officer to perform his functions during the said period."
16. We have minutely examined the above Rules vis-a-vis SLGO, 2001 and are of the firm view that the same is clearly beyond the mandate of law, is patently repugnant to and violative of the various provisions thereof. The machanism and scheme prescribed by SLGO, 2001 for recall of a Nazim or a Naib Nazim, except in case of external recall of a Zila Nazim, requires such recall motions to be approved by two houses/councils before the same could be put into effect. Section 24 of SLGO, 2001 which provides internal recall of the Zila Nazim and prescribes a mechanism in respect thereof, requires that after a motion for recall of the Zila Nazim is approved by the Zila Council, the same, shall be put to vote before the Union Councils in the District and that it is only after the motion has been approved by such Union Councils that the Nazim shall seize to hold the office and that too from the date of notification issued in this behalf by the Election Authority.
17. ' Section 47 requires that after a recall motion against a Naib Zila Nazim has been approved by the Zila Council, the same shall be put to vote before the Union Councils in the District. Section 63 requires an internal recall motion against a Taluka Nazim to be first approved by the Taluka Council and thereafter by the Union Councils in the District.
18. Section 72 provides that a recall motion against a Naib Taluka Nazim shall first be approved by the Taluka Council and thereafter by the Union Councils in the Taluka. In terms of section 84 a resolution for external recall against a Union Nazim is first required to be approved by the Taluka Council and thereafter by the Union Councils, village councils and neighbourhood councils in the Union, whereas section 62 requires an external recall motion against Taluka Nazim to be first approved by the Zila Council and thereafter by the Union Councils in the Taluka and it is only after the motion is approved by voting through the second phase as noted above that a notification, to the effect that such Nazim ceases to hold office can be issued and that too by the Election Authority and in terms of section 156,SLGO, 2001 a vacancy of Union Nazim or Naib Union Nazim is required to be filled through by-election within, as far as practicable, 120 days of the occurrence of vacancy and a vacancy of Zila Nazim or a Naib Zila Nazim or Taluka Nazim or a Town Nazim,'Naib Taluka Nazim, or Naib Town Nazim is to be filled through by-election within, as far as practicable, 120 days of the occurrence of the vacancy. Subsection (6) of section 156 provides that when the office of Zila Nazim, Taluka Nazim or Town Nazim falls vacant the members of concerned councils shall, by a majority vote elect an officiating Nazim from amongst its members and subsection (7) of the said section requires that when the office of an Union Nazim falls vacant, the members of the concerned Councils shall be majority vote elect an officiating Union Nazim from amongst its members. In terms of section 22 SLGO, 2001, in the event the office of Zila Nazim falls vacant for reasons of his death, resignation, removal or suspension etc. The Naib Zila Nazim shall act as Zila Nazim till an officiating Zila Nazim is appointed under subsection (2) of section 156 or a Zila Nazim is elected under subsection (5) of that section. In terms of section 48 SLGO, 2001 in case the office of Zila Nazim falls vacant by reasons of his death, resignation or removal, the Zila Council is required to elect one of its members as an officiating Zila Nazim till a new Zila Nazim is elected under the provisions of section 156. Section 61 provides a similar stopgap arrangement in case of Taluka Nazim as does section 22, in case of a Zila Nazim and in terms of section 68, in case the office of a Taluka Nazim falls vacant by reasons of his death, resignation or removal, Taluka Council is required to elect an officiating Taluka Nazim from amongst its members till a new Taluka Nazim is elected.
19. From the foregoing it is manifestly clear that under no circumstances, SLGO, 2001 allows replacement of a Nazim or a Naib Nazim by a Government functionary and in all events the functions of Nazim or Naib Nazim are to be discharged by the elected representative as provided for by the Ordinance itself. A Nazim or a Naib Nazim being elected persons does not seize to hold office unless a recall motion is voted upon and passed by Councils/Houses as provided for, conferring discretionary powers on the Election Authority, of restraining him from performing his functions as such, is ultra vires of the purpose, spirit and specific provisions of SLGO,2001 such powers are not conferred upon the authority by the Ordinance itself and the same are derogatory to the exercise of power of the public representative. The Rule, is therefore, oppressive and arbitrary and is against settled democratic norms. We therefore, declare Rule 19 as ultra vires of SLGO, 2001.
20. The petition stands disposed of in the foregoing terms.