' In the election to the Municipal Committee, Shakargarh held in November, 1987 the petitioner and respondents Nos. 5 to 23 were elected as its members for a period of four years.
2. In the year 1988, petitioner No,1 Muhammad Tufail was elected as Chairman of the Municipal Committee. Originally this petition was filed by petitioner No,1 alone but on an application (C.M.
No,5123 of 1989) filed by respondents Nos.5 to 7, 9 to 13 and 15 to 23 they were allowed to be transposed as petitioners, By a Notification bearing No,SOV. 3 10/89, dated 8th November, 1989, Municipal Committee, Shakargarh was suspended by the Government of Punjab in the exercise of powers conferred upon it by subsection (1) of section 159 of the Punjab Local Government Ordinance 1979. Simultaneously, by a separate order, respondent No,4 was appointed as an Administrator of the Committee.
' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order of respondent No,1 suspending the Municipal Committee on various grounds. It is alleged that the order has been passed mala fide and the petitioners were victimized on account of their political affiliations. Reference in this connection was made to two Constitutional petitions earlier filed by the petitioners namely W.P. Nos. 5012/89 and 6298 of 1989 to show mala fides of the respondents. In the first petition, the assumption of jurisdiction by the Deputy Commissioner regarding irregularities and illegalities allegedly committed by the Municipal Committee in connection with auction of octroi contract and the schedule of charges on an appeal filed by certain individuals, was challenged. It was asserted that the Deputy Commissioner without paying any heed to the jurisdictional objection raised before him was proceeding in the matter. That writ petition was disposed of on the basis of a statement made by the Additional Advocate-General on 3rd September, 1989 to the effect that the Deputy Commissioner shall hear and decide the jurisdictional objection before proceeding in the matter. It appears that under the order of the Government the Deputy Commissioner was also asked to hold an inquiry into the affairs of the Municipal Committee regarding octroi charges and contract. A report was submitted to the Government on 1-10-1989 which was assailed by the petitioners by filing W.P. No. 6298/89.
During the pendency of that petition the premises of the Committee were partly sealed but this order was later on withdrawn by the Government. On 7th October, 1989 the funds of the Municipal Committee were frozen but this order was also withdrawn on 24th October, 1989.
' On 8th November, 1989 the order impugned in this petition according the Municipal Committee was passed whereupon the petitioners withdrew W.P. No.6298/89 as having become infructuous and have filed this Constitutional petition.
' Apart from the mala fides, other grounds of attack on the impugned order are that no opportunity of being heard was allowed to the petitioners by respondent No.2 before passing it contrary to the principles of natural justice; no reason whatsoever for passing the order has been disclosed; that the order is sketchy, vague, non-speaking in character and that the allegations against the petitioners are false and incorrect and do not in any case attract the provisions of section 159 of the Ordinance.
3. In the report and parawise comments filed by the respondents it has been stated that the action has been taken on account of various irregularities and illegalities committed by the Municipal Committee. It has been asserted that the action is based upon inquiry reports received by the Government from the Deputy Commissioner, Sialkot and Director-General (Inspection) and various complaints made in this behalf by the public. The copy of the report of the inquiry conducted by the Director-General (Inspection) Local Government, has been appended to the report as Annexure 'A'. A copy of the report of the Deputy Commissioner has not been filed which is available as Annexure 'C' to W.P. No.6298 of 1989.
' An application under Order 1, rule 10, C.P.C. (C.M. No.5050 of 1989) was filed by Mr. Muhammad Hanif Khatana, Advocate on behalf of Anjuman Shaharian, Shakargarh registered, for being impleaded as a party. Though this application has not been formally disposed of, but in addition to the learned counsel for the petitioners and the learned Additional Advocate-General I have also heard Mr. Muhammad Hanif Khatana, Advocate on behalf of the applicant in the civil miscellaneous petition.
' Subsection (1) of section 159 of the Punjab Local Government Ordinance, 1979 under which the impugned order purports to have been passed reads as under:-- "159. Suspension and dissolution of a local council.--(1) Government may, by notification, suspend a local council if there are reasons to believe that a local council--
(a) is unable to discharge or persistently fails to discharge its duties; or
(b) is unable to administer its affairs or meet its financial obligations; or
(c) generally acts in a manner contrary to public interest; or
(d) otherwise exceeds or abuses its powers.
(2) ......................................
(3) ......................................
(4) ......................................
(5) ......................................
' The order passed in this behalf by respondent No.2 may also be reproduced:-- "In exercise of the powers under subsection (1) of section 159 of the Punjab Local Government Ordinance, 1979, the Government of the Punjab is pleased to suspend the Municipal Committee, Shakargarh with immediate effect."
4. A perusal of the order impugned in this petition shows that no reason whatsoever has been disclosed by the respondents for ordering the suspension in terms of section 159 of the Ordinance.
It does not even recite that there were reasons for the Government to believe that the circumstances enumerated in subsection (1) of section 159 exist. It does not appear from the impugned order as to which particular clause of subsection (I) was attracted in the present case.
In order to find out the correct factual position, learned Additional Advocate-General was asked to produce the record. It appears that a note was put up by the Deputy Secretary (Regulation) to the Secretary on 8th November, 1989 in which it was stated that from the inquiry report received from the Deputy Commissioner, Sialkot, it was apparent that the affairs of Municipal Committee were not being managed in accordance with the Ordinance and public interest was being disregarded by the Committee. It was stated that the inquiry report had highlighted nine glaring instances of mismanagement of funds and violation of Rules and Government instructions, in addition to the findings of the Deputy Commissioner with regard to enhancement of the Octroi Schedule by the Municipal Committee, Shakargarh and illegal auction of the contract of Octroi for the year 1988-89.
It was suggested that the Municipal Committee, Shakargarh be suspended and during the period of two months, an Administrator may be appointed to run the affairs and an Inquiry Committee be constituted to hold a detailed inquiry. There is no order passed by the Secretary on this note. But the same Deputy Secretary on the same date has written "SLGS has approved the draft. Issue". The impugned notification was thereafter signed by the Secretary on the same day i.e. 8th November, 1989. A copy of these proceedings has been placed on the record by the learned Additional Advocate-General under the orders of the Court.
5.From the above, it is quite evident that there has been no application of independent mind by the Secretary at all. No order on the file whatsoever exists and the only order available in this behalf is the notification by respondent No,2, dated 8th November, 1989. As already noted this notification hardly conforms to the requirement of section 159 of the Punjab Local Government Ordinance, 1979.
As held by this Court in Syed Ijaz Hussain Sherazi and others v. Secretary Local Government and Rural Development Department Lahore and others (1990 CLC 230), the power granted by section 159 of the Ordinance is not unbridled or unfettered but is circumscribed by certain conditions which must be shown to aist. On the plain wording of the section, it is only when there are reasons to believe that circumstances enumerated in the section exist that an action can be taken. In the present case, it is not even clear that which particular clause of the subsection was involved. It is to be seen that while exercising jurisdiction under section 159 of the Ordinance, respondent No,2 was acting in quasi-judicial capacity and as such he was under legal obligation to have applied his own independent mind to the facts of the case. As already indicated no order whatsoever passed by the Secretary exists on the file and even the note which was put up to him by the Deputy Secretary was not signed by him. It is well-settled that the order which takes away valuable rights of citizens must be based on material, supported by reasons and manifest an independent application of mind to all the facts and circumstances. Mere signatures on a note are not enough to meet the requirements of law. Reference in this connection may be made to Dr. Muhammad Ismail v. Deputy Commissioner Jhang and another PLD 1976 Lah. 758, Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan) Lahore and others PLD 1964 SC 829 and Abdul Qadir v. The Presiding Officer, Punjab Labour Court No,3, Lyallpur and 2 others PLD 1975 Lah.
44.
6. The contention raised on behalf of the learned counsel for the petitioners, that no notice was given by respondent No,2 to the petitioners before passing the impugned order, has not been controverted in the parawise comments by the respondents. It has, however, been stated that there is no requirement under the law to hear the petitioners, This plea is contrary to the established rule that even if there be no provision for hearing in the Statute, the principles of natural justice require that no action be taken against a person without affording him an opportunity of being heard. This Court already in Syed Ijaz Hussain's case supra, has held that this requirement of natural justice is to be read in section 159 of the Punjab Local Government Ordinance, 1979. The impugned order is, therefore, liable to be struck down alone.
7. It was, however, vehemently contended by the learned Additional Advocate-General as also Mr. Muhammad Hanif Khatana, Advocate that the petitioners were aware of the proceedings being conducted against them and, therefore, the lack of formal notice did not vitiate the proceedings. It was pointed out by both the learned Additional Advocate-General and Mr. Khatana that the petitioners have admittedly been associated with the inquiry conducted by the Deputy Commissioner and, therefore, no prejudice has been caused to them. This contention of the learned counsel is without any merit, as the impugned order has been passed by the Secretary who was the authority competent to pass such an order, an opportunity to show cause has to be afforded to the petitioners by him and the hearing by the Deputy Commissioner in an inquiry is hardly of any significance. It is also to be seen that the Deputy Commissioner after conducting the inquiry had recommended that the Chairman of the Municipal Committee be proceeded against and the contract for Octroi be auctioned. There was no suggestion that the Municipal Committee itself be suspended. The requirement of hearing, therefore, becomes all the more essential in the present case when respondent No,2 did not agree with the recommendation of the. Deputy Commissioner but instead passed a different order. The reliance of the learned Additional Advocate-General on Charsadda Sugar Mills Ltd. v. Government of Pakistan and others PLD 1971 Pesh. 210 and Messrs The International Body Builders v. Commissioner of Income-Tax, Lahore and another PLD 1971 Lah. 559 is of no avail and is misplaced, for, what was held in those cases was that if an order is passed by an authority contrary to the principles of natural justice but if the affected person has been heard by the appellate or revisional authority, the illegality, if any, stood cured.
There can be no cavil with this proposition but it has hardly any application to the present case.
The impugned order, as already stated, was within the competence of respondent No,1 alone and the hearing had to be afforded by him and not by the Inquiry Officer appointed by him.
8. It was next contended by the learned Additional Advocate-General that the impugned action was taken as an emergent measure, therefore, ex post facto hearing could also sufficiently comply with the requirement in this behalf. Reliance in this connection was placed upon Saiyyid Abul Maudoodi v. The Government of West Pakistan and another PLD 1964 SC 673. It is correct that in a situation of emergency, hearing for the time being can be dispensed but subject to the condition that the situation really demands such an action and also that hearing is provided immediately after the impugned action has been taken. In the present case, no such emergency appears on the face of the record and in any case though the impugned order was passed on 8th November, 1989, admittedly no notice or opportunity of being heard has been provided to the petitioners till this date.
9. The last contention raised by the learned Additional Advocate-General and Mr. Khatana was that the impugned order is in the nature of suspension which does not give any right and cause of grievance and the final order of dissolution has still to be passed. Similar contention was raised in W.P. No,5760 of 1989 but was repelled. Suffice it to say for the present purpose that the suspension in the present case is penal in nature and not as an administrative measure. Section 159 of the Ordinance itself provides that suspension can only be ordered if the conditions prescribed therein are shown to exist. The consequences flowing from the order are so drastic that the provision has to be strictly construed. The most important factor to be noticed in this behalf is that on passing of order of suspension, Members of the Municipal Committee ceased to hold their offices. The distinction in the case of suspension of a civil servant and the deprivation of an office has already been brought about in the aforesaid case of Syed Ijaz Hussain and others v. Secretary Local Government etc. W.P. No,5760 of 1989. This argument of the learned Additional Advocate-General is also without any merit.
' The other contentions raised on behalf of the petitioners need not be adverted to at this stage, for, the impugned order is not sustainable for the aforementioned reasons.
' In view of what has been stated above, this Constitutional petition is accepted and the impugned order is declared to have been passed without any lawful authority and of no legal effect. This order shall not, however, operate as a bar for the respondents to take an action afresh, if they so desire, in accordance with law after allowing the petitioners an opportunity of being heard.
' No order as to costs.