KARAM ELAHEE CHAUHAN, J.-This judgment will dispose of seven civil petitions for leave to appeal being C. Ps. S. L. A. Nos. 127-P/80 to 133-P/80.
2. Taking up C. P. 127-P/80 the petitioner was sold a plot of land measuring two kanals (described more fully in his plaint) situated in the area in the former Notified Area Committee University Town, Peshawar, by the Administrator, University Town Committee constituted under the University Town Committee Rules, 1974, framed by the Government of the North-West Frontier Province under subsection (2) of section 2 of the North-West Frontier Province Local Government Ordinance III of 1972 (hereinafter called the Ordinance or Ordinance III of 1972) by means of a registered deed of sale dated 24-3-1976 for a sum of Rs. 40,000.
3. ' On 13-4-1976 the Provincial Government directed the cancellation of the aforesaid deed and ordered to stop any further act or action with regard thereto. On 19-4-1976, the University Town Committee (hereinafter called the U. T. C.) in its meeting examined the matter in detail and being of the view that the aforesaid sale had been made by the then Administrator for a paltry amount and was even otherwise without authority and jurisdiction on his part cancelled the same.
4. Feeling aggrieved the petitioner filed a civil suit for a declaration that he was validly in possession of the aforesaid plot which had lawfully been purchased by him in good faith for a valuable consideration, with a consequential relief to restrain the defendant U. T. C. And others from interfering with his possession.
5. The suit was decreed by the learned Civil Judge on 8-2-1979.
6. The U. T. C. Filed an appeal being R. F. A. 116/79 which was accepted by the High Court vide its judgment and decree dated 31.5-1986 whereby the order of the learned Civil Judge was set aside, and the suit of the plaintiff/petitioner was dismissed and it was held that the sale made to him by the Administrator was, without lawful authority and its consequent cancellation as aforesaid was quite in order.
7. The petitioner has come up in a petition for special leave to appeal against the same to this Court.
8. Learned counsel for the petitioner, in order to show that the Administrator of the Committee had the power and authority to make the sale, referred us to the U. T. C. Rules, 1974, in general and in particular rules 3, 4, 5, 7, 9 and 10, details whereof are given below.
Rule 3. Establishment and incorporation.-(1) As soon as may be, there shall be established a Committee to be known as the University Town Committee for carrying out the purposes of the provisions of the Ordinance which remain applicable and these Rules.
(2) The Committee shall be a body corporate, shall have power to acquire, hold and transfer property both movable and immovable, shall have perpetual succession and common seal and shall in the said name sue and be sued.
Rule 4. Constitution of the Committee.-(1) The Committee shall consist of such number of members, not exceeding eight, excluding the Administrator who shall also be a member as may be appointed by Government Provided that not more than half of the members so appointed may be Government officials.
(2) Each member shall-
(a) hold office for a period of one year unless sooner removed and may be re-appointed thereafter for such period or periods as Govern--ment may in each case determine;
(b) perform such duties as may be prescribed by regulations or as the Committee may by order in writing assign to him; and
(c) receive such salary and allowances as may be determined by Govern--ment.
(3) A non-official member may at any time resign his office by tendering in writing his resignation to the Government.
Rule 5, dealt with appointment of Administrator and laid down that there shall be appointed an Administrator of the Committee, on such terms and conditions as Government may determine, who shall be the Chief Executive Officer of the Committee: Rule G, dealt with disqualification of the members, and removal of the members including the Administrator, on the various grounds men--tioned therein: Rule 7, dealt with meetings of the Committee and lays down that the Administrator shall preside at every meeting at which he is present, and if the Administrator is absent from a meeting, a member chosen by the members present at that meeting shall preside at the meeting. It was further provided that each member, including the Administrator, shall have one vote, and in the event of an equality of votes Adminis--trator, shall have a second or casting vote. Rule 9, stated that the Committee could appoint its Officers and servants and laid down that the Officers and servants employed or appointed under sub-rule (1) shall perform such functions and exercise such powers as may be assigned to them by the Committee and slated that subject to these rules and such directions as Government may from time to time issue the Committee shall, within the limits of the funds at its disposal,-, undertakes all or any of the works specified in the Appendix in the manner to be prescribed by regulations. Rule 11, dealt with Constitu--tion of the Committee Fund. Rule 12, dealt with Custody and investment of Fund. .Pule 13, dealt with Annual financial statement and lays down that the committee shall submit a statement of estimated receipts and expenditure in respect of the next financial year to Government for approval, at such time and in such manner as may be specified by Government and shall give effect to any modification made therein by Government.
Rule 14, required the submission of Returns and Statements and a report on the conduct of the affairs of the Committee to the Government. This rule also gives power to the Government to ask for information etc. Regarding any matter under the control of the Committee. Rule 15 dealt with accounts, rule 16 provided for Audit, rule 17, dealt with "Loans" which could be raised by the 'Committee, rule 18, provided for the levy of taxes, rates, tolls and fees, etc., rule 19, lays down that an order passed by the Committee could be challenged in appeal to the Commissioner, rule 20, dealt with "Delegation of powers" and rule 21 gives powers to the Committee to make Regulations and Bye-Laws.
9. Learned counsel also made reference to Item No. XIV of the Appendix referred to in rule 10 for the purpose of showing that the work of "acquisition of land for housing schemes and disposal of plots for houses"---(this is how Item No. XIV reads)-was quite within the competence of the Committee and consequently also of the Administrator who was the Chief Executive Officer of the Committee, and as such, the sale made by him was not without lawful authority on his part and the finding of the High Court to the contrary was not correct. He as well made a reference to a notification dated 3-11-1975, whereby the then Administrator who had sold the plot to the petitioner had been appointed, but unfortunately for him, this notification, it may be pointed out, does not specify as to what powers he was to exercise. Learned counsel after going through ail the rules which he read in Court, details whereof have been reproduced! Above, submitted that these rules showed that being a Chief Executive Officer of tire Committee, the Administrator obviously will be clothed with the powers to sell the plots which was one of the "works" of the Committee.
10. We have attended to these submissions but we must say that we are unable to endorse them.
At this place, it is to be noticed, that the Administrator had three positions, vie. (i) he was the Chief Executive Officer of the Committee, (ii) he was ex officio member of the Committee and (iii), also was to act. As a president of the meetings of the Committee, whenever held. Whatever, his status the fact remains that the Administrator is neither, the Committee nor. Synonymous with the Committee, i1or an institution, parallel, equal or superior to the Committee, and as sunk to say, that alone by himself and by ignoring the Committee could sell plots-(which was A property of the Committee)-to persons of his own choice, at his sweet will, on such .Price as he may deem fit to fix, independently of the Committee without any prior resolution of the Committee authorizing him to do so in' general or to any particular individual, as the case may be is not correct.
11. When confronted with this situation the learned counsel ,argued that during the period and at the time when the then Administrator sot 'd the plot to the petitioner all the members had vacated or left their office and only the Administrator was in charge of the affairs of the Committee as ,its Chief Executive Officer, and as such could have sold the plot in the contin--gency aforesaid. The contention has no merit inasmuch as the matter is not to be seen from the point of view of all the members having vacated their seats but firstly and primarily in general from the legal status and powers of the Administrator as such. For instance, during a period, when the members of the Committee duly subsisted and existed, if the Administrator by himself alone will not be in a position to sell the plots or property of the Committee as elaborated in para. 10 above, then such a power will no devolve upon him because the members have left or vacated their seats. In that eventuality or as he put it, contingency, he should rather postpone sale of plots until such time as :he members are appointed and the formation of the Committee from that point of view, properly takes place.
12. This was from the point of view of the status of the Administrator as the Chief Executive Officer in general, and with reference to so-called contingency pleaded by the learned counsel in particular.
Now as regards his status as a member of the Committee, rule 4(2) states that each member shall perform such duties as may be prescribed by regulations or as the Committee may by order in writing assign to him. It is nowhere established on record nor it is pleaded that the Committee had at any time assigned the authority to him to sell plots or that any regulation bestowed any such power on him. Similarly examining his position from the point of view of his being a president of the meetings (whenever held) of the Committee there again he possesses no such power as is involved in this case. Asia president he has only a casting vote in case of equal votes and not a veto( power. He could, it means, be overruled by the Committee and as such is subordinate to the Committee. From this point of view if his vote or view--point could be overruled by the proper majority of the Committee, his acts and decisions could similarly be disapproved and set aside as was done in this case by the Committee. Looked at from whatever angle we have not been able to find any power in the Administrator or the Chief Executive Officer of the, kind pleaded herein, and not have we noticed any defect in the relevant proceedings anti order of the Committee whereby in fact it set aside the sale made by him. ,
13. Another thing to be taken note of is , that the members of the Committee are to be appointed by the Government. Same is the position of the Administrator. ?'he Government has the power to remove the members and the Administrator. The functions of the Committee are to be performed by the Committee subject to rules and such directions as the Government from time to time may issue (rules 4, 5 and 6). The Committee has power to appoint its Officers and servants where again it is subject to such general or special orders as Government may from time tea time give. It is to submit a statement of its estimated receipts and expenditure to the Government for approval and shall give effect to any modifications made therein by Govern--ment (rule 13). It is .Required to submit a report to the Government for approval on the conduct of the affairs of the Committee each year. Governm--ent has also, the power to call for any return, statement, estimates, statistics or other information regarding any matter under the control of the Committee. (rule 14). YA can raise loans with previous sanction of the Government. It can levy, tolls, taxes, with approval of the Government, and it can delegate any of itspowers with the approval of the Government to any of its Officers (rule 2fe). This shows that the Government has a strong control over the l and confining to the facts of this case, could have issued direction regarding cancellation or prohibition of the sale involved herein .These directions were binding on all concerned and if in the, light of these directions the Committee after applying its own mind as well and being of the same view cancelled the transaction in hand which had been entered into by the Administrator-(illegally as earlier stated)- the action of the Government or the Committee could not be said to suffer from any infirmity.
14. Finding himself in this situation learned counsel for the petitioner submitted that by a notification dated 1-1-1974, section 29 of Ordinance III of 1972, was applied in the area comprised in the former Notified Area Committee University Town, Peshawar, for which area now the Committee under discussion had been constituted. The aforesaid section reads. As follows:- Section 29. Executive powers.-(I) The executive powers of a People's Local Council shall extend to the doing of all acts necessary for the due discharge of its functions under this Ordinance.
(2) Save as otherwise provided in this Ordinance and the rules, the executive powers of a People's Local Council shall vest in and be exercised by the Chairman, either directly or through other persons authorised by him in accordance with the rules.
(3) All acts of a People's Local Council, whether executive or not, `shall be expressed to be taken in the name of the Council, and shall be authenticated in the manner prescribed.
It was argued that reading the words "University Town Committee" for "People's Local Council" and "the Administrator/Chief Executive Officer" for the word "Chairman" in the above section at the relevant places respec--tively, it will transpire that the executive powers of the Committee shall vest in and be exercised by the Chairman/Administrator (in our case) either directly or through other persons authorised by him in accordance with rules. In our opinion, this section cannot be construed so as to give a naked and uncontrolled power to the Administrator to act independent of the Committee which the learned counsel claims should be given to him by virtue of hi being in the capacity of acting as a "president in its meetings". In out opinion, whatever, the extent of the authority given by this section it mil remain as stated above subject to the Rules of 1974, which are the charted for the constitution and working of the Committee and for induction of the Administrator, and will keep the powers of the Provincial Government intact in controlling the activities of the Committee or as a matter of fact of its Administrator as mentioned in the aforesaid Rules. Similarly sub-section (2) of section 29, it may be mentioned opens with a rider, that it is to operate "save as otherwise provided in this Ordinance" which means that if in that Ordinance, there are any checks and controls on the operation or working of this section or the manner in which the Chairman is to act, then those checks, etc. On the working of the Administrator as well get attracted. Examined in that way we notice that when a Chairman of the People's Local Council acts in the matter of "contracts" then under section 32 he is supposed to remain under control of the Council/Committee and is required to report about the same to the Council which in our opinion will be in a position to approve or disapprove any contract made by him. If this is so, then in the instant case, the U. T. C. Was well within its jurisdiction to cancel the deal in dispute and its action as such in this respect cannot be taken exception to.
15. As against this learned counsel submitted that the Government had applied only section 29 of the Ordinance to the U. T. C. And not section 32 which controls contracts of a Chairman in the manner explained above. In our opinion, since section 29 itself stated that it was to operate "save as otherwise provided in this Ordinance . . . . ." there was no necessity G to do a double exercise of applying section 32, over again as it had already been applied by reference in section 29. Again the phrase "save as otherwise provided in this Ordinance and the rules" shows that the Original Rules of 1974 of U. T. C. Which already provided for a control over the exercise o executive authority of the Chairman/Administrator will remain attracted and we have not been shown that rules (if any) under the Ordinance indicated anything different on the subject, or absolved him of the aforesaid control.
16. Attention is also invited to section 93 of the Ordinance which has been applied to U. T. C. Area and which reads as follows:- "Section 93. Interim authoruies, rules, bye-laws taxes, etc.-(I) In any area within the jurisdiction of a local body or bodies in which the provisions of this Ordinance are brought into force but a People's Local Council is not constituted, Government notwithstanding anything in this Ordinance, may by order empower any person or persons to perform all or any of the functions of such body or bodies as had jurisdiction there immediately before such enforcement, or such functions of a Council or Councils under this Ordinance as may be specified in the order until a properly constituted People's Local Council for the local area assumes office in accordance with the provisions of this Ordinance.
(2) Where a People's Local Council is constituted under this Ordinance in any area, not being an area within the jurisdiction of any local body, Government may enforce such rules, and without observing the procedure for previous publication, such bye-laws and such taxes, rates, tolls or fees in that area for such period not exceeding six months as may be considered necessary for enabling the People's Local Council so constituted to prepare for carrying out the purposes of this Ordinance."
17. It is a common ground that during the days when the sale was made by the then Administrator the old members of the U. T. C. Had left or vacated their office and no new U. T. C. Had yet been constituted. In that situation, it was open to the Government to appoint or empower any person or persons with all or any of the functions of the Committee as may be specified in the relevant order on the subject until a properly constituted Committee for the area involved herein assumed office.
It is a common ground that no such person was appointed by the Government under the aforesaid section and nor was any such power bestowed on the Administrator. In these circumstances, to plead that the Administrator was possessed of all the powers of the Committee during the period involved herein is not correct, and as held by us, even otherwise his contract could have been set aside by the. Committee in the light of the relevant directions of the Government which in the circumstances, and the context hereinbefore mentioned were quite apt, both on legal and factual plane.
18. The result is that this petition has no merit and is dismissed hereby.
19. The facts of the other six petitions, except for slight variations are similar, and the learned counsel for the parties agreed that the judgment in the above petition will apply to other petitions as well. Consequently the other six petitions are also dismissed hereby.