' NISAR HUSSAIN KHAN, J.---Petitioners through instant constitutional petition seek declaration of Notification No, DG(LG)RD/ LGC/ 2016, dated 6.5.2016, vide which they were suspended for 30 days for not passing the budget by simple majority of total memberships of District Council Mardan, as illegal, mala fide, based on political victimization and colourable exercise of power and as such passed without lawful authority.
2. It is averred in the petition that petitioners are District Nazim and Naib Nazim of District Council Mardan, respectively, who were elected in the Local Government Elections, on the tickets of two different political parties; that after assumption of their office, salary budget was unanimously passed on 22.10.2015 by the District Council Mardan and in continuation, Annual Development Programme (ADP) Budget was passed on 10.12.2015 by simple majority of 59 members out of total membership of 112. It was followed by another salary and non-salary budget of District Council Staff which was unanimously approved by District Council on 15.1.2016; that proceedings of approval of ADP budget of 2015-16 was subsequently approved on 25.1.2016 by majority members of the District Council; that in the light of approved budget, majority of the members from treasury and opposition benches, submitted their proposed schemes of projects through identification forms; that District Council approved all the guidelines in the light of ADP Budget in its meeting held on 3.5.2016. By recapitulating all these proceedings, petitioners averred that the impugned notification was issued for political victimization and ulterior motives, in colourable exercise of authority. To substantiate their contention, proceedings of the meetings and attendance roll of the meeting of salary budget and ADP budget were also annexed along with record culminating into issuance of impugned notification.
3. The learned Advocate General submitted comments on behalf of the respondents. Though they forfeited their right of submission of reply/comments on the very first day when the instant petition was heard in motion. However, during the course of arguments on 12.5.2016, learned AG referred different documents which were not made part of the record, hence he was allowed to bring the same on the file through proper C.M. Accordingly comments along with complete record has been submitted wherein stance of the petitioners has emphatically been repudiated.
4. Learned counsel for petitioners argued that ADP budget was passed with simple majority of total membership of the District Council, Mardan; that even if respondent's stance is accepted, it may not be a ground for suspension of the petitioners; that minutes of the meeting were maintained by the secretary of the Council which are public documents, supporting the stance of the petitioners.
He maintained that mala fide of the respondents is palpable from the simple fact that both Nazim and Naib Nazim of District Council Mardan have simultaneously been suspended which is against the mandate of law, hence the impugned Notification is liable to be struck down.
5. As against that learned Advocate General while responding to the arguments of the learned counsel for petitioners, has taken us through the detail comments and the record appended therewith. He raised objection that Chief Minister is not answerable to any court in terms of Article 248 of the Constitution of Islamic Republic of Pakistan, 1973, who has wrongly been impleaded in the instant petition as respondent No,1, hence instant petition is defective and is liable to be dismissed. He by referring to the record submitted that 40 members and Secretary of the District Council Mardan, moved complaint about irregularities committed in the approval of ADP budget which was not passed by a simple majority, hence is in violation of section 35(b) of Act-XXVIII.
Therefore, three members committee was constituted who reported after exhaustive enquiry that the ADP budget was not passed with simple majority because 5 out of 60 members have disowned their signatures on attendance roll which were to be referred to the hand writing expert for verification, so it reduced the strength of consenting members to 55, which do not constitute simple majority. On the basis of said enquiry report and recommendation for suspension of petitioners, the impugned Notification was accordingly issued by the Local Government Commission, which is its sole discretion; that since prima facie case against petitioners, was made out in the light of enquiry report, so they were rightly suspended, hence instant petition is liable to be dismissed.
6. We have heard learned counsel for petitioners and learned Advocate General KPK and have gone through the record with their valuable assistance.
7. So far as objection of learned Advocate General KPK relating to immunity available to the Chief Minister in terms of Article 248 of the Constitution is concerned, suffice it to observe that Chief Minister is not the only respondent in the petition. Rather there are five other public functionaries in panel of respondents whose action and commissions have been called in question. The impugned Notification has not been issued by the Chief Minister. It was issued by the Local Government Commission, the respondent No,2. Even if Chief Minister is deleted from the panel of respondents, instant petition still may proceed. There is no cavil about the established law that Code of Civil Procedure 1908 is applicable to all the proceedings, relating to the Constitutional petitions filed under Article 199 of the Constitution. Order I, Rule 9, C.P.C. Stipulates in unequivocal terms that no suit shall be defeated by reason of mis-joinder A or non-joinder of the parties and the court may proceed with the matter in controversy so far as regards the rights and interests of the parties, actually before it. It follows that mere misjoinder of the Chief Minister in the panel of respondents would not defeat the very merits of the instant petition.
8. We have been called upon to examine the legality of the impugned Notification No, DG(LG)RD/LGC/2016, dated 6th May, 2016, issued by the Local Government Commission KPK, purportedly in exercise of power conferred by section 55 of the Khyber Pakhtunkhwa Local Government Act, 2013, vide which petitioners who are Nazim and Naib Nazim of District Government Mardan, have been suspended for a period of 30 days, on account of not passing the budget with simple majority of total membership of District Council, Mardan, for the year 2015-16. Khyber Pakhtunkhwa Local Government Act, 2013 has been enacted in compliance with Article 37(i) of the Constitution of Islamic Republic of Pakistan, 1973, for decentralization of the government administration as a principle of policy, to facilitate expeditious disposal of . Its business to meet the convenience and requirements of the public. Whereas Article 140-A of the Constitution of Islamic Republic of Pakistan, 1973, inserted through 18th Constitutional Amendment, 2010, enjoins that each province shall by law, establish a Local Government system and devolve political administration and financial responsibility and authority to the elected representatives of the local government, election of which shall be held by the Election Commission of Pakistan. Pursuant to the Constitutional command, local government elections were held in the province in 2015 and petitioners Nos.1 and 2 were elected as District Nazim and Naib Nazim of District Council, Mardan, respectively. It is undisputed that the house of District Council Mardan consists of 112 members and petitioners were elected by the house, by majority of votes. After assumption of office, as per petitioners' contention, petitioner No,1 tabled the salary budget which was unanimously passed and petitioners' this stance is not repudiated. What allegedly, irked the Provincial Government was the Annual Development Programme Budget, which, according to respondents, was not passed by simple majority as per requirement of section 35(2) of Act No,XXVII of 2013. The District Naib Nazim/Convenor of District Council Mardan summoned a meeting of District Council Mardan for 7th, 9th and 10th December, 015 at 10.00 A.M. At Salateen Shadi Hall, Sugar Mills, Bypass Road, Mardan, vide office circular No,535-670/ DNN(M), dated 1.12.2015. The Agenda of the meeting was "Recitation of Holy Quran" followed by presentation of budget for the year 2015-16 by District Nazim on 7th December. Debate, suggestion and approval of the Budget was to be carried out on '9th and 10th of December, 2015. The attendance roll along with a circular of the meeting, Annexure-C of the writ petition shows presence of 60 members on 10th of December, 2015, the date of approval of the budget, as the relevant column contains signatures of those members and by relying on the copy of the attendance roll, it is urged by the petitioners that budget was rightly passed with the simple majority which requires presence of 57 Members and the same was duly approved on 10th December, 2015 by show of hands by 59 members and then the Session of the District Council was prorogued.
9. Respondents with their comments have annexed copy of letter No,6518-DC (M)/PS, dated 10.12.2015 addressed to the Naib Nazim, District Council Mardan by Deputy Commissioner Mardan with reference to a letter of Assistant Director/ Secretary District Council Mardan of even . Date, along with complaint of 40 District Councillors about approval of the budget of District Council Mardan without assent of simple majority of total members of District Council, in violation of codal formalities. He was requested to intervene, being the representative of the Provincial Government.
The District Naib Nazim was asked to take remedial measures if the complaint so made by the Members is genuine. On the same date, Special Situation Report of budget proceedings was also submitted to the Deputy Commissioner by the Assistant Director, Local Government and Rural Development Department as Ex-Officio Secretary of the District Council Mardan, stating that at the time of budget approval, total attendance of members of all the parties was 36-38 and no show of hands nor any counting of the members was carried out. On 11.12.2015, the Director General, Local Government and Rural Development Department addressed a letter to two MPAs, two Secretaries of Khyber Pakhtunkhwa Government and two others for Special Meeting of Local Government Commission to be held on 15th December, 2015. Agenda of the meeting, in addition to other items, was 'the budget proceedings of District Council Mardan. In the meanwhile, District Naib Nazim responded to the Deputy Commissioner with reference to his letter dated 10.12.2015, explaining the position that 68 members were present in the Session. The approval of the budget was solicited, on which 59 members accorded approval by show of hands of the budget for the year 2015-16 and Session was prorogued at 10.15 A.M. Whereas Special Situation Report submitted by Assistant Director Local Government and Rural Development an Ex-officio Secretary of the local Government of 10.12.2015 is incorrect and baseless. He further explained that the Secretary himself was absent from the Session who arrived at 11.00 A.M. When the budget had already been approved.
10. The Director General Local Government and Rural Development Department addressed a letter to the Commissioner Mardan Division to inform that three members of Local Government Commission will proceed to Mardan Commissioner Office to hold enquiry relating to budget proceedings, adopted by the District Council, Mardan on 21.12.2015. It was followed by an enquiry report of the said Committee, in which after recapitulating the respective stance of both the sides, it recorded its findings; that total strength of Membership of District Council Mardan is 112 while approval of the budget was accorded by 60 members, though the requirement was of 57; that, 5 out of 60 members have disowned their signature which reduces the number of members, who accorded approval, to 55 which is not a simple majority as required under section 35(2) of the Local Government Act, 2013; that attendance sheet was in custody of Naib Nazim instead of Secretary District Council which is an anomaly, thus the whole proceedings of passing of the budget stands infructuous because of deficiency of required number of councillors at the time of its approval. After recording these findings, the Committee recommended that since Nazim, District Council Mardan has failed to get the budget approved as per requirement of the Act, so 20% of the members of the District Council should place the requisition before the District Council asking the Nazim and Naib Nazim to seek fresh vote of confidence. It was secondly recommended that since 5 signatories have disowned their signatures on the attendance roll of the budget session, therefore, their signatures be sent to the Forensic Science Laboratory for verification; and thirdly in the meantime formal enquiry be initiated and Nazim as well as' Naib Nazim be suspended for 30 days.
The findings and recommendations of the enquiry committee were signed by two members while third one recorded his dissenting note by disagreeing with the recommendations of suspension of Nazim and Naib Nazim, till verification of the signatures of those councillors from the FSL who disowned their signatures. He also recommended that Nazim may again get the budget approved from the District council as per laid down procedure. The respondents have also annexed proceedings of the District Council meetings of 7th, 9th and 10th of December, 2015 at Pages 79 to 84 consisting of 5 sheets being the attendance roll of all the members. Presence of 60 members has been marked on 10th December, 2015, the date of passing of ADP budget by their signatures in the respective columns, which strength some 'how coincides and tally with the documents annexed with the petition. However, it is the stance of the respondents that 5 out of 60 members have disowned their signatures. Their stance was yet to be substantiated after verification of F. S . L.
11. Both sides are at variance about the record of Budget proceedings, therefore, we would not like to enter into inter se comparison of these documents, on account of, it being the realm of factual controversy, which is not the domain of this court while exercising its Constitutional jurisdiction, under Article 199 of the Constitution. What we are concerned with, is the legality and propriety of the impugned Notification. The notification has been issued under section 55 of the Act No, XXVIII of 2013 which empowers the Local Government Commission to recommend to the Chief Minister for suspension of Nazim, Naib Nazim or a member of local council, as the case may be, for maximum period of 30 days. Before examining the authority of the Commission, it would be apt to dilate upon its composition which is provided under Section 54 of the ibid Act which runs as follows:-- "54. Local Government Commission.---
(1) Government shall appoint a Local Government Commission, which shall consist of --
(a) Minister for Local Government, Elections and Rural Development Department, who shall be the Chairman of the Local Government Commission;
(b) Two members of the Provincial Assembly, one each nominated by the Chief Minister and Leader of Opposition in the Provincial Assembly;
(c) Two eminently qualified and experienced technocrats including a woman selected by Government for a period of three years;
(d) Secretary to Government, Law, Parliamentary Affairs and Human Rights Department; and
(e) Secretary to Government Local Government, Elections and Rural Development Department.
(2) The Local Government Commission may, for any specific assignment, co-opt any other person as member; provided that, when it is seized with an inquiry against a Nazim, it shall be mandatory for the Local Government Commission to co-opt a disinterested Nazim, district council as member.
(3) Government shall provide separate budget for the Local Government Commission with Director General, Local Government and Rural Development as Principal accounting Officer, who shall provide secretarial support and render assistance to the Local Government Commission.
(4) No act or proceedings of the Local Government Commission shall be invalid by reason or existence of any vacancy, or defect, in its constitution."
12. It is apparent from the above provision of law that beside Minister of Local Government, two members of the Provincial Assembly, one each nominated by the Chief Minister and leader of the opposition, two eminently qualified and experienced technocrats including a woman selected by the Government for a period of 3 years, Secretary to Government, Law, Parliamentary affairs and Human Rights Department and secretary to Government, Local Government Elections and Rural Development Department, would constitute the Local Government Commission. Minister and Secretaries would be ex-officio members of the Commission but two members of the provincial assembly and two eminently qualified and experienced technocrats as provided under Section 54(1) (b) & (c) are required to be notified for composition and completion of the Local Government Commission. There is nothing on the record to substantiate that which two members of the Provincial Assembly each one of the Treasury and opposition benches and two eminently' qualified technocrats were ever notified. It follows that no Local Government Commission was duly appointed by the government as per requirement of Section 54 of the ibid Act. More particularly when commission is seized with an enquiry against a Nazim, it was mandatory to co-opt a dis- interested Nazim, District Council as member. This mandatory provision has also not been adhered to.
13. Functions and authority of the Local Government Commission are enumerated in Section 55 of the Act. While subsection (2) of section 55 of the Act is relevant to the issue in hand, which is reproduced as follows:- "55.Functions of the Local Government Commission.--- (1)...Xxxxxxxxxxxxxx
(2) Where the Local Government Commission is of the opinion that suspension of a Nazim, Naib Nazim or a member of a local council is necessary for the purposes of a fair enquiry or preventing him from continuing with any unlawful activity during an enquiry, it may recommend to the Chief Minister for suspension of such Nazim, Naib Nazim or a member of a local council, as the case may be, for a maximum period of thirty days."
14. Bare reading of subsection (2) of Section 55 transpires that Local Government Commission has not been vested with unfettered powers for recommendation of suspension of Nazim, Naib Nazim or a member of local council to the Chief Minister, according to their whims. Rather powers of recommendation are conditioned with two requirements; firstly when suspension is necessary for the "purpose of fair enquiry" and secondly for "preventing Nazim and Naib Nazim, or a member, from continuing with any unlawful activity during the enquiry". If any one condition, enumerated in the subsection is attracted, Nazim or Naib Nazim may be recommended for suspension. Before making any such recommendation, the Commission is required to assign the reasons that how a fair enquiry cannot be carried out, during the holding of his office and in case of second condition, the Commission is required to explain the unlawful activities of the Nazim, Naib Nazim or a member for their suspension which are required to be curtailed. Since it is a serious step to be taken, against an elected representative, which some how is to affect his political career, therefore, is required to be strictly construed and to be stricto sensu applied, in letter and spirit within the parameters of law. The proposed suspension is tantamount to a penal action against them. It is cardinal principle of transparency, fairness, equity and justice that penal provisions are to be construed very strictly.
No liberal construction or interpretation can be undertaken. When impugned notification is considered at the touchstone of relevant provision under which it has been issued, it does not qualify the test of legal sanctity and reasonableness which for better appraisal of its contents is reproduced in extenso as follows:-- "OFFICE OF THE DIRECTOR GENERAL LOCAL GOVERNMENT AND RURAL DEVELOPMENT .
DEPARTMENT KHYBER PAKHTUNKHWA (LOCAL GOVERNMENT COMMISSION)
NOTIFICATION Dated Peshawar, the 6th May, 2016 No, DG(LG)RD/LGC/2016. ---In exercise of the powers conferred by section: 55 of the Khyber Pakhtunkhwa, Local Government Act, 2013 , the competent Authority, on recommendation of Local Government Commission, has been pleased to order the suspension of Mr.Himayatullah Mayar Nazim and Mr.Asad Ali Naib Nazim, District Government Mardan, for a period of 30-days by not passing of budget with simple majority of total membership of District Government, Mardan, for the year 2015-16, with immediate effect, in public interest.
Sd/- Local Government Commission Khyber Pakhtunkhwa"
15. Bare perusal of the Notification transpires that it suffers from number of legal infirmities and procedural deficiencies. Firstly it does not contain any reason as enjoined by action 55(2) of the ibid Act, explaining the necessity of suspension for fair enquiry or preventing the petitioners from continuing with any unlawful activity, as to how they are going to hinder the fair enquiry or which are their unlawful activities which are to be curtailed. In absence of any reason, it does not qualify the test of section 55(2) of the ibid Act, under which the same has been issued, hence it can safely be concluded that the impugned action has not been taken in accordance with law.
16. The Local Government Commission, can only recommend the suspension of Nazim or Naib Nazim or a member of the local council to the Chief Minister. It cannot itself pass suspension order.
Nevertheless, impugned notification has been issued by the Local Government Commission, which is an another illegality that cannot be countenanced by any principle of interpretation or rule of administration. Moreso, the enquiry committee, on whose recommendations, the whole-exercise has been under taken, is an entity which is alien to the Local Government Act, 2013. It is the local Government Commission, who by virtue of section 55 (2) can recommend the suspension of Nazim or Naib Nizam. The authority of commission has been assumed or delegated to a committee which is not recognized by law and Local Government Commission assumed the power of Chief Minister, which is beyond its statutory mandate. It simply is transgression of authority, obviously offending the spirit of law, which as such, is flagrant colourable exercise of powers.
17. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 gives full protection to every citizen to enjoy the protection of law and to be treated in accordance with law, being his inalienable right. When law provides a specific procedure to do any act, it is to be followed as it stands. The provision of law may not be construed according to the whims of the authority, at the helm of affairs. The power or authority vested by the law or Constitution is a sacred trust, which is to be exercised justly, fairly, equitably with all reasonableness and judicious conscience. Where mandatory provision of law is not followed but instead authority vested by law is exercised in arbitrary and capricious manner, it offends all norms of justice. Such order does not qualify the test of equity, justice, fairness, transparency and reasonableness, rather it is tantamount to colourable exercise of power, as such cannot be termed to have been passed by lawful authority. The Legislature enacts laws and inserts every word with precision by defining the limitation of power or the authority to be exercised. It cannot be abridged or transgressed by self-serving interpretation.
It is settled principle of law that things are to be done as required by law or not at all.
18. It is settled law that authority or Tribunal are vested with power to act or decide the matter rightly not wrongly. Whenever, it proceeds wrongly, it is an exercise without jurisdiction. The order, though passed by competent authority, but without jurisdiction, is susceptible to IG judicial review.
19. We in light of above discussion, are of considered view that impugned Notification has been issued, contrary to the statutory command and has not been issued by a competent authority.
Thus by accepting the instant petition, impugned Notification is set aside, by declaring it as illegal, unlawful, without jurisdiction, having been issued without lawful authority and of no legal effect.