1. ' NADEEM AZHAR SIDDIQI, J.--- By filing this constitutional petition the petitioners have called in question Notification, dated 1-6-2009 by which the respondent No,2 has constituted an Inquiry Team to enquire into the complaint made by Muhammad Aslam Sasooli, NaibNazim, Keamari Town and other Town Councilors of Town Council Keamari against petitioners.
2. ' The facts necessary for disposal of this petition are that the petitioner No,1 is the elected Nazim of Keamari Town. Immediately, after the election the petitioner No, l's election was challenged through Election Petition No,1 of 2006, which was dismissed. It was further stated in the petition that after the election of Aslam Sasooli, Town NaibNazim a campaign has been launched against the petitioner No,1 and he was harassed and intimidated due to extraneous political reason. A motion for recall against the petitioner No,1 was moved by the NaibNazim and some of the members of Town Council and the meeting was held on 14-3-2009, which was challenged by way of filing of the constitutional petition, which was allowed on 17-4-2009 and recall motions were set, aside. It is stated that in the above background, a complaint was made against the petitioners by the Naib- Nazim and others to the respondent No,2, which was entertained malafidely and for ulterior motives.
3. ' The respondent No,2 has filed the comments and the counter-affidavit wherein it was stated that the complaint made by the NaibNazim and others contained serious allegations of misuse of powers, use of substandard material in development works, corruption in contracts of streetlights and maintenance of vehicles, misappropriation of funds through quotations and contracts of the works were awarded to the favourite contractors beyond the budget provisions. The matter was placed before the Commission and as per decision of the Provincial Local Government Commission (hereinafter referred to as "the Commission") taken in the 42nd Meeting held on 18-5- 2009 an Inquiry Team has been constituted under section 132(1)(b) of the Sindh Local Government Ordinance, 2001 (hereinafter referred to as "SLG Ordinance) to probe into the allegation levelled against the petitioners. It was further stated that the notification was not malafidely issued and it is the duty of the Commission to examine the allegation and the petitioners will be heard during the course of inquiry.
4. ' Learned counsel for the petitioners submits that the impugned notification issued by the respondent No,2 is without jurisdiction and lawful authority: He further submits that the respondent No,2 can only initiate proceeding against the petitioner No,1 on its own initiative or if directed by the Chief Executive and not on the application moved by any person. He then submits that the petitioners belong to Pakistan Muslim League (N) and Naib-Nazim belongs to Pakistan Peoples Party and a false complaint has been filed due to increasing political rivalry between PML(N) and PPP. He then submits that before issuing the notification the petitioners were not heard and the respondent No,2 has not applied its mind and mechanically issued notification, which is nullity under the law. He has relied upon following reported cases:---
(1) Abdul Khaliq Farooq v. Government of Sindh 2005 YLR 1143, (2) Shabbir Jan Sarhadi v. Province of Sindh 2006 PLC (C.S.) 955, (3) Syed Qasim Ali Shah v. Government of Pakistan 2007 MLD 989 and
(4) Nazir Cotton Mills Ltd. v. State Bank of Pakistan 2007 CLD 1642.
5. ' Conversely, learned A.A.-G. Has submitted that the notification was properly issued within four corners of law and while issuing notification no illegality has been committed by the respondent No,2. He then submits that before issuing notice, matter was considered by the Commission in its 42nd Meeting and after applying its mind decision was taken and Inquiry Team was constituted. He also submits that till to-date no adverse order has been passed against the petitioner No,1 and that notification for constituting Inquiry Team is not a final order and cannot be challenged by way of filing of this petition. He then submits that in the inquiry proceedings, the petitioner No,1 will get proper opportunity to defend himself. He has referred to the certain powers available with the respondent No,2 under section 132 of the SLG Ordinance and submits that in spite of powers to suspend the petitioner No,1 during pendency of the inquiry proceedings no adverse_ action has been taken by the respondents which clearly reflects the bona fide of the respondents.
6. ' We have heard the learned counsel for the parties and perused the record made available before us.
7. ' It is not disputed that the petitioner No,1 is the elected Town Nazim of Keamari Town. The Commission has issued a notification in exercise of power vested under section 132(1)(b) of SLG Ordinance. By issuing notification, an Inquiry Team has been constituted to enquire into the complaint made by the Naib-Nazim, Keamari Town. In terms of clause (b) of subsection (1) of section 132 of the SLG Ordinance the Commission is authorized to conduct, on its own initiative or, whenever, so directed by the Chief Executive of the Province an inquiry by itself or through District Government into any matter concerning a Local Government. The application of Naib-Nazim, Keamari Town was considered by the Commission in its 42nd regular meeting held on 18-5-2009 and following decision was taken:- "The matter was discussed. The Commission decided to conduct the enquiry into matter. Member (Public-I) is appointed as Enquiry Officer and technical officers of the Commission as co-opted Members. In first instance, Member (Public-I) will call the comments from the Town Nazim and later on issue the charge-sheet."
8. 'The application made by the Naib-Nazim, Keamari Town is only IA an information laid before the Commission and the Commission has rightly taken-up the matter in its meeting and since the allegations are serious in nature has decided to hold inquiry against the petitioner No,1 and while doing so, the Commission has acted on its own initiative and has not committed any illegality. In the decision it was also decided to call comments from the petitioners. The Commission can gather information from any source and, after considering and examining the same at its own initiative can enquire into the matter concerning Local Government.
9. ' The expression "of its or his own motion" was considered by a learned Bench of the Lahore High Court in the case of Sardar Ashiq Muhammad Khan Mazari and 3 others v. Chairman, Federal Land Commission, Islamabad and 4 others PLD 1977 Lah. 461 and has been held as under:--- "41. The expression "of its or his own motion" is not unknown to law. It is a term of art and is meant to clothe an authority with the power to act even when it has not been moved by anybody to do so.
10. Information leading to such action would ordinarily be expected to come to the knowledge of an authority during an inspection of the office of the subordinate authority or during the course of any other proceedings. So long as an authority has not been moved by a person to act, the person not being necessarily aggrieved himself, the authority would be deemed to have proceeded of its own motion."
11. ' The expression "on its own motion" was considered by a learned Bench of this Court in the reported case of Messrs Kasbati Builders through Partners v. Income Tax Appellate Tribunal and 2 others 2006 PTD 1088 and has been held as under:--- "... We are of the opinion that it can never be the intention of Legislature. Once a mistake comes to the notice of Tribunal then notwithstanding, the fact that the mistake has been brought to the notice of Tribunal by a person who is not specifically empowered in law to do so, it would always be advisable for the Tribunal to take it as an information and rectify the mistake on its own motion.
12. The absence of a right on the part of Departmental Officer shall have the effect to the extent that as a matter of right the Departmental Officer would not be entitled to seek a rectification but there would be no illegality on the part of Tribunal or departmental authorities to rectify the mistake in its own discretion by taking it as information and in exercise of suo motu jurisdiction."
13. ' The expression "on its own motion" was also considered by a learned Bench of this Court in the reported case of Messrs Karachi Marriott Hotel v. Atta Hussain 2006 PLC 140 and has been held as under:--- "6.. However suo motu powers can be exercised on information received from any source. No restriction has been imposed upon the Court to receive information from any person. As such the information can be supplied by the parties or by any third person or through print or electronic media or by examining the orders and related matters of the Labour Court so on and so forth.
14. Revisional powers are very wide powers as the Court has been empowered to pass any order in relation to the matter as it thinks fit to meet the ends of justice. Therefore no restriction can be imposed upon the Court on the source of information which can be received from anybody including the parties or through any source. Once information is received and the Court finds that the information is such where the correctness, legality or proprietary of an order or proceedings of Labour Court can be examined then the information can be entertained to exercise suo motu powers."
15. ' The expression "on its own motion" was also considered by the Honourable Supreme Court in the reported case of Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCMR 1071 and was held as under:--- "(8) So far as the first argument is concerned, no principle of law or any precedent was quoted to show that the suo motu statutory power cannot be invoked by the authority vested with it on the application of a party to proceedings before the subordinate forum or authorities. On a perusal of the provisions of subsections (3-a) of section 38, we find no warrant. To hold that there would be any bar on the Tribunal to exercise this jurisdiction, if the requisite information comes before it from any source including an application made by any party. Apparently the jurisdiction seems to be supervisory in nature in order to enable the Tribunal which is at the apex of the hierarchy of Tribunals set up by the Industrial Relations Ordinance to examine the legality or propriety of proceedings taken or an order passed by subordinate'Tribunals ...."
16. ' From the above quoted judgments, it is clear that the action can be initiated on the basis of information received by the Commission through any source.
17. ' In the instant case, the Commission has not taken any adverse action and has only decided to hold inquiry and for holding an inquiry, no show-cause notice is required to be issued, as during inquiry proceedings the petitioner No,1 will get ample opportunity to defend himself. It is now well- settled principle of law that there is a clear distinction between the two situations, one where the right of such hearing is statutory and the other where such right is claimed on the basis of principles of natural justice. In the former case the right is absolute and its violation makes the order illegal and not sustainable under law, while in later case, it is not so and exclusion of such right could be expressed or implied and whenever a violation of principles of natural justice is alleged, the court may call upon the party to establish prejudice caused to it before striking down the order.
18. ' The order of the authorities can be challenged by way of filing petition, if the orders are illegal, mala fide, perverse and without jurisdiction. In the absence of any patent impropriety, glaring violation of law, interference though Constitutional jurisdiction is not warranted.
19. ' The judgments cited by the learned counsel for petitioners are distinguishable to the facts and circumstances and are not applicable to the present case. The case of Abdul Khaliq Farooq (supra) relates to the appointment of Provincial Zakat and Ushr Council without approval of the Governor. The case of Shabbir Jan Sarhadi (supra) relates to the withdrawal of reinstatement of the petitioner. The case of Syed Qasim Ali Shah (supra) relates to the taking over of control and management of Evacuee Trust Property by Evacuee Trust Property Board. The last case of Nazir Cotton Mills Ltd. (supra) relates to the application of BPD Circular No,29 and the Court has held that where functionaries acted without jurisdiction with mala fides or in 'violation of any law, their actions would certainly be amenable to the Constitutional jurisdiction of High Court. Executive Authorities, before passing any orders, should give a right of hearing to the parties which right was to be read in all statutory provisions as well as rules/notifications issued thereunder regardless of the fact that it may not be mentioned therein.
20. 'In the instant case, the respondent No,2 has not committed any illegality while issuing the notification. In the decision of the Commission it was decided to call comments from the petitioners, which G is sufficient compliance of right of hearing. Learned counsel for the petitioners has failed to demonstrate any mala fide on the part of the Commission in issuing the impugned notification.
21. ' In view what has been discussed above, we do not find any merits in this petition, which was accordingly dismissed by short order, dated 10-7-2009.