The petitioners who are twenty nine in number, were elected as members of the Municipal Committee, Sheikhupura in the elections held in November, 1987 under the Punjab Local Government Ordinance, 1979, for a period of four years. The Municipal committee comprises of 45 members and was constituted on 1-1-1988 and as such the petitioners were entitled to hold their offices till 31st December, 1992. The petitioner No.2, Ch. Muhammad Khan Manj, was elected as its Vice-Chairman, while Haji Muhammad lqbal Dar was elected as Chairman who was later on removed by the Members by passing a Vote of no-confidence against him on 9th September, 1989.
A day later i.e. On 10th September, 1989, respondent No.1 by means of a notification published in the official Gazette suspended the Municipal Committee, Sheikhupura in the exercise of powers conferred under section 159 of the Punjab Local Government Ordinance, 1979 which has been impugned by the petitioners by filing this constitutional petition.
2.In support of this petition various grounds have been urged by the learned counsel for the petitioners inter alia that the order is mala fide and is Sactuated by ulterior motive; that no reason whatsoever has been disclosed by the respondent for passing the impugned order; that the petitioners as elected Councillors were entitled to enjoy their terms of office but they have been illegally deprived of the same and lastly; that no notice or opportunity of showing cause was granted to the petitioners before passing the impugned order which is not based on any material.
3. The notification of 10th September, 1989 does not state any reason which obliged the Government to pass the impugned order. However, in the written statement filed by respondent No.1, it has been stated that there were numerous complaints of mismanagement, wastage of public funds and misuse of powers in the Municipal Committee, Shekhupura which was not properly functioning in the public interest for which it was constituted and, therefore, the Government was justified in passing the order of suspension. It was averred that the order has been passed after preliminary inquiries on the report of the government functionaries. It has also been stated that the suspension is an interim measure for holding the inquiry into the allegations levelled against the Chairman, Municipal Committee and other elected representatives. It was pointed out that the petitioners themselves had levelled allegations of mis-management and misuse of public funds against the Chairman and, therefore, it was the duty of the respondent -- Government to hold an inquiry. The written statement however, is not supported by any affidavit.
The Deputy Commissioner, Sheikhupura who was impleaded as respondent No.2 has also submitted parawise comments along with which he has filed a copy of the memorandum dated 28th September, 1989, addressed by him to the Secretary, Local Government in which it has been recommended that the Municipal Committee be placed under suspension.
4.The order dated 10th September, 1989 which has been impugned in this petition reads as under: "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, Sheikhupura with immediate effect."
This order is expressed to have been passed under section 159 of the Punjab Local Government Ordinance, 1979 and its validity has to be tested on the touch-stone of this provision which reads thus: "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)On the publication of a notification under subsection (1)--
(a) persons holding offices as Chairman and members of the local council shall cease to hold office; (b)all functions of the local council shall, during the period of suspension, be performed by such person or authority as Government may appoint in this behalf; and (c)all funds and property belonging to the local council shall, during the period of suspension, vest in Government;
(d) Government shall hold or cause to be held an inquiry into charge on which a local council is suspended. If, within a period of two months from the date of the suspension of the local council, the inquiry is not completed the council shall stand revived.
(4)If, as a result of the inquiry, the charges against the local council are proved, Government may dissolve the local council.
(5)When a local council is dissolved-- (a)Government shall hold fresh elections within three months from the date of dissolution if the remaining term of the local council is not less than nine months and the term of office of the local council so reconstituted shall be the residue of the original term; and (b)if the remaining term of its office is less than nine months the person or authority referred to in subsection (2) shall continue to pefrorm the functions of the local council and its fund shall continue to vest in Government till the reconstituted local council assumes office.
5. A careful analysis of the provision shows that the power conferred upon the Government is neither absolute nor unbridled but is circumscribed by the existence of certain conditions and circumstances. There must-be reasons on the basis of which a belief is to be formed by the Government that the circumstances enumerated in clauses (a) to (d) exist. The consequences flowing from an order passed by the Government are so drastic and severe that the provision must necessarily be strictly construed and the order passed must satisfy the conditions prescribed in this behalf. According to section 159 (2) on the passing of an order of suspension, the persons holding office of Chairman and Members of the local counsel ceased to hold their respective offices; all functions of the local council are to be performed by an Administrator to be appointed by the Government and all the funds and properties belonging to the local council vest in the Government itself. There can thus be no denying that the action taken under section 159 is penal in nature.
6.It is not necessary to deal with all the contentions raised by the learned counsel for the petitioners, for, the impugned order is liable to be struck down for two reasons (i) that it offends against the principles of natural justice; (ii) it gives no reason, demonstrate no application of mind and is not shown to have been passed on the basis of material sufficient to sustain it.
7. Section 159 of the Ordinance does not by itself provide for grant of any hearing to the affected persons. However, it is well settled that the principles of natural justice are deemed to be part of every Statute unless there be a provision to the contrary. The minimum requirement in this respect is that the affected persons must be granted an opportunity of being heard. In the famous case of The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmad (PLD 1965 S.C. 90) it was observed: "That in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned." This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for in such cases this requirement is to be implied into it as the minimum requirement of fairness.
Wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case."
8. It was, however, contended by the learned Advocate-General that since suspension is an interim misconceived. It is not a universal principle that suspension is always regarded as an administrative measure causing no prejudice to the persons concerned. According to the Black's Law Dictionary, 5th Edition, page 1297, suspension can also be a form of censure or discipline whereby a public Officer is forbidden from performing his functions for more or less a definite interval of time. In M/s. East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another (PLD 1965 S.C. 605), it was observed that "suspension may be punitive or one in aid of an enguiry. An order in the nature of punishment is always required to be proceeded by a properly constituted enquiry. While drawing distinction in the case of suspension of Government servant and suspension of Export or Import Registration Certificate it was observed that: "...The Government servant by reason of his suspension, does not lose his office or suffer degradation. His rank remains the same. He merely ceases to discharge the duties of his office during pendency of the departmental enquiry against him. He also draws a subsistence allowance during the period of suspension. In the event of his honourable acquittal he is allowed to against him. He also draws a subsistence allowance during the period of suspension. In the event of his honourable acquittal he is allowed to draw full salary for the period of suspension. On the other hand if an Export or Import Certificate is temporarily suspended it may cause incalculable harm, to the Importer or Exporter for which he cannot get any redress even if later the order of suspension is withdrawn."
This clearly brings into bold relief the distinction between punitive suspension and one which is purely administrative in nature.
8-A. In the case of Alfred Thangarajah Durrayapah of Chundikuly, Mayor of Jaffna v. W.J. Fernando and others (1967) 2 A.C. 337)) the question before the Privy Council was as to whether it was necessary for the Minister before ordering dissolution of Jaffna Municipal Committee/Council to give an opportunity of being heard to the affected persons. In this connection it was observed:- (1)That in considering whether the principle audi alteram partem was applicable, the matters to be considered were (a) the nature of the property, the office held, the status enjoyed or the services to be performed by the complainant of injustice; (b) in what circumstances or upon which occasions was the person claiming to be entitled to exercise the measure of control entitled to intervene and
(c) upon proving the right to intervene what sanctions in fact was the latter entitled to impose on the complainant.
(2)That as to (a) the legislature had set up by statute municipal authorities with a considerable measure of independence from the Central Government within defined local areas and fields of Government and no Minister had the right to dissolve such an authority without allowing it the right to be heard upon that matter unless the statute was so clear that the council plainly had no right of sell-defence.
(3)That as to (b) the Minister could dissolve the council either if it was not competent to perform its duties (inability to undertake its duties, which might arise from circumstances outside' any one's control, was not the test as to incompetence), or if it persistently made default in the performance of its duties, or if it persistently refused or neglected to comply with any provision of law; that section 277 conferred on the Minister a single power to act in the event of one or more closely allied failures and he could do so only after observing the principle audi alteram partem.
(4)That as to (c) the sanction which the Minister could impose involved the dissolution of the council and therefore the confiscation of all its properties; that a statutory corporation such as municipal corporation, like every trading corporation owned its property and therefore the principle applied that no man was to be deprived of his property without having an opportunity of being heard, and the Minister had been in error."
Applying the principle enunciated above to the present case, there is no escape from the proposition that the action taken was punitive in nature and it was essential for the respondent to have given an opportunity to the petitioners of being heard, moreso in view of the consequences flowing from the order, and the further fact that such an order could only be passed on account of various acts of commission or omission on the part of the Municipal Committee and its Memers.
Under subsection (3), an inquiry has to be held into the charges for which local council is suspended which is to be completed within a period of two months, failing which the local council is to stand revived. However, there is nothing in the section which requires the Government after completion of inquiry to have passed an order within the specified period of time. It is, therefore, idle to contend that before passing such an order no opportunity need be given to the I affected persons.
9. In Kafilud Din Ahmad v. Chairman, Pabna Municipal Committee and others (PLD 1968 Dacca 733) where the Chairman of the Municipal Committee had been suspended by the Controlling Authority under Article 78-A of the Basic Democracies Order, 1959, the Division Bench of the Dacca High Court insisted that before taking such an action it was essential provision of natural justice that a notice should have been given to the affected persons. Similarly in Mir Ali Muhammad v. The Province of West Pakistan (PLD 1956 Karachi 237) where the Municipal Committee had been superseded for a limited period of time which in fact amounted to its suspension, it was held that the requirement of natural justice by giving notice must be met. In M.Abdul Majid v. The West Pakistan Province and 2 others (PLD 1956 Lah. 615) a Division Bench of this Court took the view that removal of a member of the Municipal Committee, under the Punjab Municipal Act (III of 1911) without notice, was violative of natural justice and, therefore, wholly void.
10. Even otherwise there is abundant authority for the proposition that if "suspension" is likely to affect the rights of a person he must be afforded an opportunity of being hcard. In Messrs Fridsons Ltd., Karachi and another v. Government of Pakistan through its Secretary, Ministry of Commerce, Karachi and another (PLD 1961 S.C. 537) the Supreme Court insisted that the requirement of natural justice must be met before suspending the certificate of registration granted to an Exporter.
A similar argument was raised in the case of Muhammad Sadiq v. District Food Controller, Sahiwal etc. (1982 CLC 538) but was repelled with the observation that the suspension was penal in nature and, therefore, it was necessary to give an opportunity of being heard to the person concerned.
Same view was taken in Abdul Subhan v. Pakistan through Secretary, Ministry of Labour and Manpower and three others (1984 CLC 2815). In the present case, the impugned order is, as such, clearly not sustainable.
11. It is also necessary to take notice of the argument of the learned Advocate-General that as and when the Government decides to hold an inquiry in pursuance to the suspension, the petitioners shall be allowed an opportunity of being heard. The position taken up by the learned Advocate- General is, however, contrary to the written statement filed by respondent No.1 wherein it has been mentioned that an inquiry was already being held after the suspension of the Municipal Committee. It is not the case of the respondents that the petitioners have been associated with such an inquiry or given any notice. On this ground also, the impugned order cannot be upheld.
The other reason for which the impugned order is not sustainable is equally weighty and forceful.
As already noticed, section 159 of the Ordinance requires that there must be reasons to believe that the circumstances enunciated in clauses (a) to (d) exist. Belief, as observed by the Federal Court in Moulvi Fazlul Quader Choudhry versus Crown (PLD 1952 F.C. 19) is something more than suspicion.
The expression "reason to believe" is stronger than the words "satisfied". (M/s Ganga Saran Sons Pvt.
Ltd., Calcutta versus The Income-tax Officer and others (AIR 1.981 S.C. 1363 refers). It is well settled that wherever expressions like `in the opinion or `is satisfied' or `reasons to believe' appear I in a Statute while vesting discretion on public functionaries, the Courts have I' always insisted that the action taken must not only be bona fide but there should also be objective satisfaction based on material sufficient to sustain such an action. The statutory functionaries must demonstrate application of mind on their part and should also show that the decision has been arrived at after taking into consideration all the relevant circumstances supported by sufficient material. The action taken should not be arbitrary, whimsical or unsupported by any reason. In the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 S.C. 166) the following observations in M. Abdul Majid v. The West Pakistan Province and two others (PLD 1956 Lah. 615) were cited with approval: "According to the rules of reason and justice not private opinion, according to law and not humour, it is to be not arbitrary, vague and fanciful, but legal and regular, to be and for substantial reasons and it must be exercised within the limits to which an honest man competent in the discharge of his office ought to confine himelf i.e. Within the limits and for the objects intended by the Legislature."
Similarly the rule laid down in Abul A'la Maudoodi v. Government of West Pakistan (PLD 1964 S.C.
673) was reiterated in the following terms:- It is a duty of Provincial Government to take into consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed, consequent upon which the opinion must be formed honestly, that the restriction is necessary."
A reference may also be made to the Full Bench judgment of this Court in Kh. Muhammad Sharif v.
Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 Lah. 725) wherein while construing Article 58 (2) of the Constitution, it was observed:-, "Whether it is 'subjective' or `objective' satisfaction of the President or it is his `discretion' or `opinion', this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representatives of the people who are primarily entrusted with the duty of running the affairs of the State are removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in a Court of law. No doubt, the Courts will be chary to interfere in his 'discretion' or formation of the `opinion' about the `situation` but if there be no basis or justification for the order under the Constitution, the Courts will have to perform their duty cast on them under the Constitution."
12. Reverting to the present case, it will be seen that the impunged order not only fails to give any reason at all but it does not even recite that there were reasons for the Government to believe that the conditions enumerated in clauses (a) to (d) of section 159 exist. There appears to be a complete lack of application of mind on the part of respondent No.1 while passing such an order. It is not discernible either from the impugned order or the written statement filed by the respondent as to under which particular clause of section 159 the action has been N taken. Apart from making generalised statement that there were numerous complaints of mismanagement, wastage of funds or misuse of power in the Municipal Committee, Sheikhupura which was not properly functioning in the public interests no efforts have been made to produce any material to show that I on an objective assessm ent such an opinion could be formed by the Government. Even in the written statement, respondent No.1 has failed to disclose with any exactitude as to who were the persons who had made complaints against the Municipal Committee and what was the nature of the inquiries conducted into the allegations and if so by whom and on what dates. No copies of the reports of inquiry on the basis of which the respondent No.1 claims to have taken action have been produced. It may be noted that along with parawise comments of respondent No.2, a document purporting to be a report of some inquiry has been produced but it neither gives out the designation of the person concerned nor the date on which the inquiry was held. The learned counsel for the petitioners has contended that this report is of a date subsequent to the passing of the impugned order. The learned Advocate-General, when asked, was not in a position to rebut this assertion. Be that as it may, it was for respondent No.1 to show that the action was taken by it on the basis of material on the record which it had failed to do and no effort was made to meet the legal requirements, so much so, neither the names nor the designation of the official who had allegedly held the inquiry are forthcoming on the record. The respondents have also failed to file any affidavit in support of the assertions made in the written statement.
13. It is to be remembered that acts of omission and commission on the basis of which action under section 159 of the Ordinance can be taken must be of the local council itself and not of its Chairman or its Members. It was so held by the Dacca High Court in Dr. Mubarik Ali and others v.
Province of East Pakistan and others (1970 D L C 409) and Rahmatullah Biswas v. Government of East Pakistan and 5 others (1969 D L C 289). As the action depends upon the existence of certain conditions and there must be reasons to believe that the circumstances justifying such action exist, the power in this behalf is clearly quasi judicial in nature (M. Abdul Majid v. The West Pakistan Province and two others (PLD 1956 Lah. 615) and Mir Ali Muhammad Khan versus The Province of West Pakistan (PLD 1956 Karachi 237) refer): The suspension of a local council on the ground that it has neglected to perform its duties imposed by the Act or that it has abused its power is a serious matter and the suspension of such a body 1 on these grounds means its public condemnation and cause a slur on the Members comprising that Body. The Legislature obviously intended that the executive when it decides to suspend or dissolve the local council, should justify its action by giving reasons, which are totally missing in the present case. The Y impugned order is, therefore, clearly not sustainable.