1. ' MUHAMMAD SARDAR KHAN, J.-Petitioners have called in question through this Constitutional Petition the Notification No, P. B. A. (LCE)5(2)/ 79, dated 23-12-1979 of the Provincial Government by which Union Council, Lahor has been divided into two Union Councils namely Union Council, Lahor Pore and Lahor Ropore.
2. ' The facts which are not disputed are these petitioners and respondents Nos. 5 to 9 were elected Members of the Union Council, Lahore in the election held on 25-9-1979. In the subsequent contest in October 1979, for the offices of Chairman and Vice-Chairman amongst the members, petitioners Nos. 1 and 2 were successful and were duly elected for the said offices. Their names were accordingly notified as Chairman and Vice-Chairman respectively of Union Council, Lahor by the Provincial Government vide Notification No, S.
0. (ELC)LG-I (1)/79, dated 30-10-1979 and they were also administered oath of their respective offices.
3. ' What transpired thereafter is, however, in dispute between the parties. According to the petitioners (and they are six in number, total number of elected members in Union Council, Lahor being (11), certain interested parties who had lost election made representations to the provincial Government and Deputy Commissioner, Mardan, respondents Nos. 1 and 2 herein, that the Union Council, Lahor be divided into two separate Union Councils in consequence of which the impugned notification was issued bifurcating Union Council, Lahor into Union Council, Lahor Pore and Union Council, Lahor Repore. This Notification purports to have been issued under section 9 of the North- West Frontier Province Local Government Ordinance, 1979.
4. ' The Notification also enumerates following consequences ensuing as a result of bifurcation of the Council :- (a)All the existing members elected from the electoral units included in the reconstituted Union Councils shall be deemed to have been elected to the aforesaid Union Councils respectively.
5. (b)That for all purposes of the Ordinance the Union Councils so constituted shall be the successors of the dissolved Union Councils to the extent of the interests of the electoral wards included in the newly constituted Union Councils.
(c) The Chairman and the Vice-Chairman of the dissolved Union Council, Lahor shall henceforth seize to hold their respective offices as consequential result of the division of the Union Council to which they were elected and reconstitution of the new Union Councils in interest of public service."
6. ' Simultaneously Deputy Commissioner, Mardan, respondent No, 2, was authorised to appoint Presiding Officers for convening first meeting under the provisions of the N.-W. F. P. Local Councils (Election of Chairman and Vice-Chairman) Rules, 1979 to conduct fresh election to the offices of the Chairman and Vice-Chairman of the newly-constituted Union Councils.
7. ' Petitioners had originally filed a Constitutional petition in this Court on 12-1-1980 alongwith an application to suspend the operation of the impugned notification. The petition was admitted to full hearing on the following day but in the Civil Miscellaneous Application, notice was ordered to be issued to the opposite-party for a short date. Before that date, however, and despite objection by the petitioners, fresh elections to the offices of the Chairman and Vice-Chairman were held on 18- 1-80 by the Extra Assistant Commissioner 1st, Swabi. It is alleged that all the elected members were called by the said gentleman on 17-1-1980 to his office on the following day where they were told that he had been appointed Returning Officer by the Deputy Commissioner, Mardan to hold elections for the newly created offices of the Chairman and Vice-Chairman. He was informed by the petitioners that a writ petition was already pending and notices had been issued to the respondents. He contacted respondent No, 2 on telephone who directed him to proceed with the election and thus the elections were held. Therefore petitioners made another application which was registered as C. M. No, 26/ 1980 on 20-1-1980 that the respondents be restrained from administering oath of offices to the newly elected Chairman and Vice-Chairman of the bifurcated Union Councils. This application came up for hearing before a D. B. Of this Court on 22-1-1980.
8. Respondent No, 2 was restrained from administering oath by order passed on the same day with notice to the opposite-party. It may be mentioned that in the election to the said offices held on 18- 1-1980 petitioners Nos. 1 and 3 were elected as Chairman and Vice-Chairman respectively of Union Council Lahor Pore whereas respondents Nos. 5 and 7 were declared elected to the said offices from Union Council, Lahor Rapor. The petitioners' case it that they who had clear majority were asked to nominate Chairman and Vice-Chairman of their choice as the Extra-Assistant Commissioner Swabi (respondent No, 4) had to complete the formality and thus they Were constrained to give name of petitioner No, 1 for Chairmanship and petitioner No, 3 for the office of Vice-Chairman. In these circumstances petitioners also prayed for permission to file an amended petition and this was allowed by order dated 29-1-80. The amended petition was accordingly filed by the petitioners on 5-2-1980. Besides the Government, Deputy Commissioner, Mardan Assistant Commissioner and Extra-Assistant Commissioner, Swabi (respondents Nos. 1 to 4) five other members originally elected from Union Council, Lahor including Chairman and Vice-Chairman of Lahor Rapore were impleaded as parties therein.
9. ' No written reply has been filed by respondents Nos. 5 to 9 or for that matter respondents Nos. 2 to
4. Respondent No, 1 alone has submitted its comments. They have defected action of the Government on the ground that the general public had agitated that matter and wanted bifurcation of the Union Council, Lahor for the reason that it was unwieldy in comparison to other Union Councils of the area and local conditions required so. It is said that the issue was processed by the Assistant Commissioner, Swabi, Deputy Commissioner, Mardan and Commissioner, Peshawar Division, Peshawar and, therefore, Government decided to bifurcate the said Union in the "interest of general public". To the allegations that out of total number of 11 members, the clear majority of six i,e, the petitioners are against the bifurcation of the Union Council, Lahor and that the impugned notification has been passed arbitrarily and without following any procedure whatever, the stand of respondent No, 1 is that no vote on the subject had been taken nor the matter was discussed and resolved formally at the meeting of Union Council. Besides no procedure is prescribed for the purpose and the division of a local council was an administrative act and due vigilance was exercised before making the decision.
10. ' We have heard the learned counsel for the petitioners, learned Advocate-General for respondents Nos. 1 to 4 and Mr. Zahur-ul-Haq, Bar-at-Law, Advocate for respondents Nos. 5 to 9. Learned counsel for the petitioners has raised the following contentions before us-
(i) that section 9 of the N.-W. F. P. Local Government Ordinance, 1979 delegated excessive legislative powers to the Government and as such is not good law ;
(ii) that assuming Government is validly possessed of the powers then action under section 9 can be taken before the election of Chairman and Vice-Chairman has been held and not thereafter ;
(iii) that this can be done only in accordance with procedure laid down in the rules ; and
(iv) that the action taken is mala fide.
11. ' The contentions do seem to be attractive but closer scrutiny would reveal that they are without force. Section 9 of the Ordinance reads as under "9. Division, amalgamation and re-constitution of Local Councils.-(1) Government may, by notification, divide a Local Council into two or more Local Councils or amalgamate two or more Local Councils into one Local Council or alter the limits of a Local Council and may specify in the notification the consequences which will ensue upon the publication of such notification.
(2) When, as a result of such division or amalgamation any new Local Council is constituted, in accordance with the provisions of this Ordinance in the manner specified in the Notification,-
(a) the existing members of any Local Council so divided or amalgamated shall become the members of such Local Council or Councils as Government may,. By notification, specify as if each such member bad been elected to that Local Council ; and
(b) such Local Council shall, to the extent and in the manner specified in the notification, be the successor of the Local Council or Councils so divided or amalgamated."
12. ' Learned counsel has not been able to show how this provision delegates excessive legislative powers to the Government. His argument is that the Ordinance provides an elaborate procedure for removal of a Chairman or Vice-Chairman or a member of a Local Council from office if he has incurred any of the disqualifications as are enumerated in section 34 and such an action can only be taken after giving the Chairman or Vice-Chairman, as the case may be, an opportunity of being heard. He has also a right of appeal in the prescribed manner to the Tribunal appointed by the Government under subsection (2) thereof. He can also cease to hold office if a vote of no- confidence is passed against him in the manner provided under section 36 and in such a case he becomes ineligible for re-election to the said office of any local council. Learned counsel submits that section 9 of the Ordinance is therefore in conflict with the said provisions of law. He agrees that this would not be a case of excessive delegation but may appropriately be said to be a conffict between the two provisions of the same statute. He in fact has corrected himself and submits that if the interpretation, that by making an order under section 9, the elected Chairman or Vice Chairman would also cease to hold offices is accepted, then this would conflict with and make provisions of sections 34 and 36 of the Ordinance redundant, ' It appears that the provision of section 9 of N.-W. F. P. Local Government Ordinance, 1979 is not a new provision of law introduced for the first time in the said Ordinance. It seems to have been copied from the analogous provision in the Basic Democracies Order in the form of Article 10-A inserted by the Basic Democracies (Amendment) Order, 1961 dated 29-9-1961. A more or less similar question had come up for consideration before the High Court of East Pakistan Dacca as it then was in Aftab Hussain v. The Province of East Pakistan and 2 others (1). There the petitioner, Chairman of Union Council had lost his office due to the reconstitution of the Union Council by the Provincial Government done for public convenience and to remove administrative difficulties. The reconstitution of the Union Council was challenged on the plea that according to the provision of section 57 of the Electoral College Act, 1964 and Article 22 of the Basic Democracies Order, 1959 read together after the formation of Electeral College once the Union Councils are constituted, the power conferred on the Provincial Government is exha used and the Councils must continue for the fixed period of 5 years. It was held that there are no such limiting words to be found in section 57 of the Electoral College Act, 1964 from which it can affirmatively be said that the power could be exercised only once or that once the Union Councils are constituted they could not be reconstituted. It is well recognised rule of interpretation that if an authority is vested with a power it can exercise it as many times as it deems fit unless there is any word in the statute tc the contrary.
13. No such words limiting the powers of the Provincial Government are to be found in section 57 of the Electoral College Act. The power to constitute carried with it by necessary implication the power to reconstitute". To the same effect is the judgment in Kabir-ud-Din v. Government of East Pakistan and others (2) though it was recognized that it could be questioned where it was done in violence of all principles and in contravention of all practical advantages.
14. ' The two provisions contained in sections 34 and 36 of the Ordinance and section 9 thereof are in no way in conflict with each other for both deal with different situations. Section 9 essentially confers the power on the Government to divide, by notification, a Local Council into two or more local Councils or amalgamate two or more Local Councils into one Local Council or alter the limits of a Local Council. And as a necessary corrollary to the same it also gives power to the Government to specify in the Notification the consequences which would inevitably ensue by taking such action. Section 34 deals with removal of a Chairman or Vice-Chairman or member of a Local Council from the office for various disqualifications as are mentioned therein ; such as he absents himself without reasonable cause from three consecutive meetings of the Local Council or is guilty of abuse of power or misconduct or refuses to take oath etc. Etc. There it is a sort of punishment which is visited upon him for something done by him whereafter he ceases even to be a member of the Local Council. Here he ceases to hold office of Chairman or Vice-Chairman, as the case may be, as a consequence of bifurcation or amalgamation not because of something done by him but in consequence of the action taken (by the Government) bona fide and in public interest. Therefore, it cannot be said that section 9 is in conflict with the provisions of sections 34 and 36 of the Ordinance.
15. ' The contention that the Government can take action under section 9 only before the election of the Chairman and Vice-Chairman and not thereafter (1) PLD 1970 Dacca 797 (2) PLD 1970 Dacca 503 is also without any substance. Learned counsel admits that there is no such limitation prescribed in section 9 but says that it seems to be the intent and spirit of law that the power should be exercised only before the election and not thereafter. Government has admitted in its comments that no legislative principles have been laid down in the Ordinance or the rules thereunder for performing functions within the provision of section 9. It is significant that in the matter of division and distribution of its administrative functions amongst subordinate officers and bodies Provincial Government does not appear to have ever lain any legislative fetters or guidance.
16. When a case of this nature arises the Provincial Government is therefore expected to act on examination of local conditions, public and administrative convenience and local opinion etc. For the law maker to provide in detail for the great number of considerations that would require to be scrutinized, balanced and harmonized on such occasions would seem to be impossible. That is why law itself places no such limitation on the powers of the Government as the learned counsel would have us read into it. The intention of law on the countrary seems to be that such powers can be exercised at any time before or after the election of the Chairman or Vice-Chairman according to exigency or needs of the time and a variety of other consideration in the context of a particular situation. The argument that it can be done only before the election of the Chairman or Vice- Chairman and that too in accordance with the procedure laid down in law is, therefore, unacceptable.
17. This brings us to the last contention of the learned counsel that the action of the Provincial Government in issuing the impugned notification is mala fide. Learned Advocate-General is of the view that the Government has uncontrolled and unlimited powers to act under section 9 of the Ordinance and an action taken there under cannot be challenged on the ground of mala fides. But the argument is totally misconceived and if accepted would lead to enormous abuses on the part of the administration for no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of that power. A mala fide act is by its very nature an act without jurisdiction and would not be exempt from judicial scrutiny. Therefore we will have to consider the argument of the learned counsel for the petitioners as to how the act of issuing the impugned notification is mala fide. Now it cannot be disputed that the onus to prove that an act done is mala fide is on the person alleging mala fides. It is also well established that this cannot be done upon vague allegations of mala fides and they must be pleaded with particularity, therefore, it is imperative that the petitioners should prove that the notification in question was issued for collateral or ulterior purposes or to harm the petitioners or the action was taken not for the purposes authorised by the law. But the only ground urged in the petition in proof of mala fides is that subsequent to the election of petitioners Nos. 1 and 2 as Chairman and Vice-Chairman respectively of the Union Council, Lahor "certain interested parties, who had lost the election, stated making the representations to respondents Nos. 1 and 2 that the Union Council, Lahor be bifurcated into two separate Union Councils". However no copy of such representation has been placed on record. The allegation has been seriously disputed by the Government and this is what has been stated by them in paragraph 8 of the reply to the writ petition : "The matter was agitated by the general public who wanted bifurcation of the Union Council, Lahor for the reason that it was unwieldy in comparison to other Union Councils in the area and that the local conditions required so. The issue was processed by the Assistant Commissioner, Swabi, Deputy Commissioner, Mardan and Commissioner, Peshawar". Elsewhere it was urged that "this decision of the Government was based on the demand of the local population as processed by the local officers at Tehsil, District and Divisional level and was in the interest of general public": It was contended before us that due negligence Me was exercised before making the decision. It was represented by the Elders that there were differences between the members of the two village, Lahor Pore and Lahor Rapore and as such their development programme would be seriously affected and the local opinion favoured it. To these assertions made in the comments no counter affidavit has been filed by the petitioners.
18. The petitioners have, therefore, failed to prove that the action of the Government in issuing the impugned notification is mala fide. In the circumstances. It cannot be said that this action was not taken in public interest. This objection is therefore, also overruled.
19. It is now clear that the writ petition is without merit. The same is, therefore, dismissed but in view of the legal question involved the parties are left to bear their own costs.
20. SUPREME COURT OF AZAD J & K