' ALLAHDINO G. MEMON, J.---By this petition, the petitioner has challenged the Notification No, PA/OS (PHE&RG)/90/17239, issued on 111-1990 by respondent No,1, superseding the Town Committee Mirpur Mathelo, District Sukkur, and appointing respondent No,2 to perform functions of the Committee under section 58 of the Sindh Local Government Ordinance, 1979. The facts giving rise to the present petition are that according to the petitioner he was elected as Chairman, of Town Committee Mirpur Mathelo in the year 1987. That committee/council was functioning in accordance with rules and regulations of the Sindh Local Government Ordinance. That the Town Committee has a Town Officer appointed by the Local Government besides the other staff. That the business of the Council was being conducted in accordance with rules to the knowledge of Town Officer and also the Local Government that every year the budget was prepared by the Council and all the expenditure was being incurred within the budget provisions and the Government never objected to any of the expenditure or the resolution. That in the month of August, 1990, the petitioner announced his affiliation with Pakistan People's Party which annoyed the caretaker Government, and the Sindh Government decided to suspend the Council of the Town Committee Mirpur Mathelo. That the accounts of the council were audited for the financial year 1988-89 under section 55 of Sindh Local Government Ordinance, 1979, and the audit report alleged financial irregularities which were yet to be proved in accordance with the procedure provided under section 55 of the Ordinance. That the Government could take action under section 58 of the Ordinance, only after compliance of sections 56 and 57 of the Sindh Local Government Ordinance.
That no inquiry was held as envisaged by law nor any objections were invited from the members of the council. That no show-cause notice was issued to the council and, therefore, the action was against the principles of natural justice, fundamental rights, and the mandatory provisions of law, and as such, the present petition was filed. It may be stated here that initially Assistant Commissioner was appointed to carry on functions of the Council but later on respondent No,2 has been appointed as Administrator of the Town Committee, Mirpur Mathelo, at the place of Assistant Commissioner, vide notification, dated 2nd December, 1990, and, therefore, the petition was amended and Nawab Khan Bozdar was joined as respondent No,2.
2. That parawise comments were called which have been filed wherein it has been admitted that the petitioner was elected as Chairman. It is further stated that in view of the irregularities pointed out by the local committee as well as Director Local Audit, it is presumed that the council was not incurring expenditure within the budgetary provisions. In reply to para. 19 of the petition, wherein the petitioner had alleged that no inquiry was held as envisaged by section 56 of the Ordinance, nor some officer or authority was appointed to hold inquiry, it has been stated that considerable irregularities were committed by the Chairman/Council as pointed out by Director Local Fund Audit and the Local Council Town Committee. In para. 21 of the petition it was alleged that no objections were invited nor any explanation was sought from any members of the council by the Government, and the reply is "no comments".
3. We have heard Mr. Abdul Ghani Shaikh, learned counsel appearing for the petitioner, Mr. S. Sarfraz Ahmed, learned Additional Advocate-General appearing for the respondent No,1, Mr. Paryaram Waswa ni, learned counsel appearing for the respondent No,2.
4. It was contended by Mr. Abdul Ghani Shaikh, learned counsel appearing for the petitioner that no inquiry was held by respondent No,1 as envisaged by sections 56, 57 and 58 of the Sindh Local Government Ordinance, 1979 and, therefore, the action taken by the respondent was mala fide, illegal and without jurisdiction. It was further contended that no show-cause notice was issued to members of the council nor any objections were invited before issuing the impugned notification and, therefore, the notification was against principles of natural justice, fundamental rights and mandatory provisions of law and, therefore, the notifiction was liable to be set aside.
4-A. Mr. S. Sarfraz Ahmed, learned Additional Advocate-General, appearing for the respondent No,1 has contended that several irregularities were reported during audit of accounts of the Town Committee as pointed by the Local Accounts Committee as well as Director Local Fund Audit, hence no further inquiry was necessary. That the notification issued by respondent No,1 was issued in accordance with provisions of section 58 of the Ordinance and, therefore, no irregularity was committed by respondent No,1.
5. Mr. Paryaram Waswa ni, learned counsel appearing for the respondent No,2 has contended that it was for the petitioner to show that action taken by respondent No,1 was illegal and without jurisdiction.
6. In view of the legal objections raised by Mr. Abdul Ghani Shaikh, learned counsel appearing for the petitioner, it will be appropriate to refer to sections 56, 57 and 58 of the Sindh Local Government Ordinance, 1979, which read as under:-- "56.--- (1) Government may, suo motu or on application made to it by any person, cause an enquiry to be made by such officer or authority as may be appointed by it in this behalf, into the affairs of a council generally, or into any particular matter concerning that council, and take such remedial measures as may be warranted by the findings of such enquiry.
(2) Such officer shall, for the purpose of the enquiry, have the powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), to take evidence and to compel the attendance of witnesses and the production of documents.
57.--- (1) If after such enquiry as may be necessary, Government is notified that a council is not able to run a particular department or institution efficiently it may, by notification in the official Gazette suspend the authority of the council over such department or institution for such period as may be specified in the order.
(2) Where the authority of a council is suspended under subsection (1), Government may itself take over the management of such department or institution or make such other arrangements as it thinks fit.
(3) The expenses for management under subsection (2) as may be determined by Government shall be borne by the council and the budget of the council shall be deemed to have been revised to that extent.
58.--- (1) If after such enquiry as may be necessary, Government is of the opinion that a council--
(a) is unable to discharge or persistently fails in discharging its duties; or
(b) is unable to administer into affairs or meet its financial obligations; or
(c) otherwise exceeds or abuses its powers.
' It may, after considering the objections from the council by notification in the official Gazette, declare the council to be superseded for a period not exceeding six months.
(2) On the publication of a notification under subsection (1)--
(a) the person holding the office of the Mayor, Deputy Mayor, Chairman or Vice-Chairman or member shall cease to hold such office;
(b) the functions of the council shall during the period of supersession be performed by such person or authority as is appointed by Government until the council reconstituted under subsection (3) assumes office;
(c) all funds and property of the council shall, during the period of supersession, vest in Government for the purposes of this Ordinance and be expended accordingly.
(3) On or before the expiry of the period of supersession, the council shall be re-constituted in accordance with the provisions of this Ordinance: ' Provided that where the period of suspension of the council is expiring within four months of the expiry of its normal term of office, the council shall not be reconstituted for the residual period of the term and the consequences of supersession under subsection (2) shall continue to operate."
7. The bare reading of the above provisions of the Ordinance clearly show that whenever the Government proposes to suspend the authority of the council over any department or any institution under section 57 or to supersede council under section 58, it is obligatory upon the Government to hold an inquiry as required by subsection (1) of section 56 or subsection (1) of section 58 as the case may be. These are the mandatory provisions of law and, therefore, before passing an order of suspension of the council, the same are to be complied with. It is also clear that supersession is not to exceed a period of six months. The impugned notification Annexure 'A' dated 1-11-1990 reads as under:-- "NOW, THEREFORE, in exercise of the powers conferred in section 58 of the Sindh Local Government Ordinance, 1979, Government of Sindh are pleased--
(i) to declare that the Town Committee, Mirpur Mathelo, District Sukkur shall stand superseded with immediate effect; and
(ii) to appoint the Assistant Commissioner, Mirpur Mathelo to perform the functions of the said council during the period of its supersession.
' ADDITIONAL CHIEF SECRETARY (LG)."
8. From the above notification, it is clear that the respondent No,1 has failed to fix period for which the council has been superseded. Even it is not mentioned in the comments or the counter- affidavit filed by respondent No,2 that any inquiry was held or objections were invited as provided by subsection (1) of section 56 or subsection (1) of section 58 before impugned notification was issued. While hearing the above petition, specific question was put to Mr. S. Sarfraz Ahmed, learned Additional Advocate-General appearing for respondent No,1, as to whether any objections were invited and whether any inquiry was held before council was superseded, he replied that apart from the Audit report of Local Accounts Committee and Director Local Fund Audit there is nothing to show that any objections were invited or any inquiry was held in accordance with the provisions of section 58.
9. It was contended by the learned counsel appearing for the petitioner that the petitioner was not heard nor he was served with any show-cause notice before the council was superseded. There is nothing on record to show that any inquiry was held or any objection was invited or any show- cause notice was issued to Members of the council before issuing impugned Notification and, therefore, there is considerable force in the contentions raised by Mr. Abdul Ghani Shaikh.
10. It will be appropriate to refer to the case of Syed Aijaz Hussain Shirazi and 28 others v. Secretary, Local Government and Rural Development Department, Lahore 1990 CLC 230 wherein the order of suspension passed by the local Government was challenged in a writ petition on the ground that the same was passed without holding any inquiry and without affording an opportunity of being heard to the petitioners, it was held that since the order was passed in violation of principles of natural justice and without holding an inquiry, the order could not be sustained and the same was set aside.
' Reliance is also placed on unreported decision in C.P. No,D-1421 of 1990, decided on 9-5-1991, wherein supersession of Town Committee Sewhan, District Dadu, was challenged on the ground that the same was superseded without complying with the provisions of sections 56, 57 and 58 of Sindh Local Government Ordinance, 1979. It was contended 'on behalf of the petitioner that no inquiry was held nor objections were invited by the Government, even no show-cause notice was issued to the Members of the council and therefore, the Notification issued by the Government superseding the council was illegal. A Division Bench of this Court of which one of us namely, Allandino G. Memon, J. Was a member, after considering the above provisions came to the conclusion that the above provisions were mandatory and the impugned Notification was declared to be illegal, without jurisdiction and non-existent in the eye of law. It was further declared that the petitioner continues to be the Chairman of the Town Committee.
In view of the above discussion, the above petition is allowed and the impugned Notification dated 1-11-1990 issued by respondent No,1 superseding the Town Committee Mirpur Mathelo, District Sukkur, is declared to have been passed without any lawful authority and is of no legal effect. It is further declared that the petitioner continues to be the Chairman of the Town Committee, Mirpur Mathelo. The respondent No,2 is restrained from interfering in the administration and affairs of the said Town Committee. However, looking to the circumstances of the case, we make no order as to costs.