AMIR-UL-MULK MENGAL, J.---On 15th of July, 1991 the Government of Balochistan was pleased to dissolve all the Local Councils in Balochistan with immediate effect vide Notification N9.8-2807 (PLGB)AO.E. Said Notification is reproduce for the sake of convenience:-- , "NOTIFICATION"
"No. 8-281/87 (PLGB) AO.E.--In exercise of the powers conferred by subsection (1)(a) of section 24 of the Balochistan Local Government Ordinance, 1980 (11 of 1980), the Government of Balochistan is pleased to dissolve all the. Local Councils in Balochistan with immediate effect.
2. The poll for fresh election will be held on 28th September, 1991. Tentative programme whereof shall be notified by the Balochistan Local Councils Election Authority'.
(MOHSIN BALOCH), SECRETARY, LOCAL GOVERNMENT DEPARTMENT."
2. Mir Maqbool Ahmad Lehri,' Ex-Mayor Municipal Corporation, Quetta and Mir Mchrullah Khan Mengal, Ex-Chairman of District Council Khuzdar have challenged the aforesaid decision of the Government of Balochistan by riling these two petitions (C.P. No.166 of 1991 and C.P. No.171 of 1991).
Through different applications we allowed respondents to join as party in this Constitutional petition, who supported the action taken by the Government.
3. Since in both these Constitutional petitions the petitioners have challenged the action taken by Government of Balochistan by dissolving local bodies in the Province, therefore, we propose to dispose of these two petitions vide this common judgement.
4. The election for local bodies was previously held in the Provice on 30th of November, 1987. As per section 24 of the Balochistan Local Government Ordinance, 1980 (hereinafter referred to as the.
"Ordinance") the term of office of a local council would be four years; or for such period as the Government may specify commencing on the day on which it assumes office, but the Government of Balochistan through the impugned notification dissolved the local bodies of Balochistan on 15th of July,' 1991, therefore, petitioners are aggrieved and have challenged the aforesaid action as stated here in above.
We have heard the counsel for the parties at length.
6-Before proceeding further we would like to point out that as per statement of learned Advocate- General the total number of local councils of different nomenclature in the Province is 369. Out of the 369 Local Bodies which were dissolved vide impugned notification only Mayor of Quetta Municipal Corporation and Chairman, District Council, Khuzdar have challenged the dissolution of local bodies.
7.Mr. M.A. Chishti, Advocate mainly addressed arguments on behalf of the petitioners and Mr. Basharatullah, Advocate while adopting the said arguments also added one or two points in the same. Mr. Chishti firstly contended that in fact dissolution of local bodies was as a result of colourableexercise of the powers by the Government of Balochistan for the reasons which are not disclosed.In the Notification. He referred to minutes of the meeting attended by the Parliamentary parties now forming the Government wherein according to the learned counsel the reasons were quite different from what have been stated in the notification (several complaints of corruption and misappropriation of funds by the local bodies). Simultaneously he challenged the action of the Government being mala fide. ~ "
8. We have already reproduced the notification, dated 1-5th of July, 1991. It is now well-settled law that mala fides have to be proved as a fact and the Courts should not rove or fish out to find any mala fides in the official orders. On the contrary it is duty of the Court to explore all possible explanations for validity of an order passed by a public authority. Reference if any may be made to the case of Mian Abdul Wahid and others v. The Collector, Sheikhupura PLD 1973 Lah. 739.
9. However, Mr. Chishti in order to support his aforesaid argument. Pointed out that the main object for dissolution of the local bodies was to punish the Quetta Municipal Corporation as the Mayor and Members of the Corporation resisted the demand of respondents Nos.5 and 6 (Chamber of Commerce and Anjuman-e-Tajiran, Quetta) who wanted the levy of octroi on maundage basis and not on the basis of value of the goods. It was argued that the Municipal Corporation used to receive octroi on the basis of ad valorem but not on the weight of the goods propularly known as maundage or Munkut. In this regard learned counsel invited our attention to different documents including minutes of the meeting, and press conference, the correspondence of the respondents Nos.5 and 6 with the Government of Balochistan. According to learned counsel when all efforts of government to change the mode of octroi levy failed because of the resistance by the Mayor and Members of Quetta Municipal Corporation, the Government in order to punish and victimize the Corporation dissolved the local bodies in the Province. Relying on the case of Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151 the learned counsel argued that action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking an action does so out of 'personal motives either to hurt the person against whom the action is taken or to benefit oneself. Learned counsel submitted that the Provincial Government wanted to punish the Quetta Municipal Corporation in order to give benefit to Anjuman-e-Tajiran and Chamber of Commerce and Industry, who demanded octroi to be levied on maundage. On the query of the Court the counsel conceded that in fact the order of the Government to levy octroi on the basis of maundage has been suspended and old system of octroi is thus in vogue. We are, therefore, not 'inclined to agree with the counsel that Government issued the impugned notification merely to change the mode of octroi by ad velorem to maundage. Another reason compelling us to disagree with the contention so raised is that the Government was competent to have dissolved only Quetta Municipal Corporation instead of dissolving the entire local bodies in the province if the object of the Government was to penalise the Quetta Municipal Corporation. As far as the extract of the minutes of the meeting of the parliamentary parties is concerned, it has no nexus with impugned notification for the reasons that although it might have been a remote cause but in that case the Government could only dissolve those local bodies against whom there were charges of corruption, as was done in the case of Municipal Committee, Turbat on 24th of April, 1991 (Annexure M to the Petition). The Government could dissolve on the charges of corruption all those local bodies against which there were complaints of corruption and missappropriation of funds under section 139 of the Ordinance. But in fact Government dissolved the local bodies of the Province under section 24(l) of the Ordinance for the sole purpose of fresh elections. We find no mala fides on the part of the Government as well as no force in the contention that the Government in fact had taken action as per decision of the Parliamentary parties meeting. Learned counsel has failed to note the observations of the Hon'ble Supreme Court in the case of Federation of Pakistan v.
Saced Ahmad PLD 1974 SC 151 that mala. Fides must be pleaded with particularity and once one kind of mala fides is alleged no one should be allowed to adduce proof of any other kind of mala fides nor should any inquiry be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving inquiry into the riles of the Government for the purposes of fishing out some kind of case. So also the petitioner firstly it tried to prove mala fides on the basis that real reasons were concealed in the notification which were taken by the Parliamentary Parties meeting. After failing to find out any nexus of the said meeting with the dissolution of local bodies it was secondly contended that the object was to penalise Quetta Municipal Corporation. Thus the petitioners expected that the Court should conduct a roving inquiry to find out somewhere some sort of mala fide which in fact was against the dictim laid down in Saeed Ahmad Khan's case by the Supreme Court mentioned hereinabove. The Government has taken decision clearly under section 224 of the Ordinance and in the impugned notification even fixing a date for fresh polls in the province.This brings us to the second contention raised by Mr. Chishti.
10. The next contention assailing the impugned notification was that by amending section 24 the legislature has in fact delegated unfettered powers on the Government I t by empowering it to dissolve the local bodies before the expiry of such term of office for which it was elected. It was argued that rather it is a case of excessive delegation, where no guidelines have been provided by the legislature, as such unbridled powers have been bestowed upon the Government which can be arbitrarily exercised as no safeguards have been provided by such delegated legislation.
11. Relying on the Crawford's Treatise namely the Construction of Statutes the learned counsel submitted that there may arise contingencies upon which the operation of a statute may be made dependent and one of such contingencies is ascertainment of facts by the executive or administrative officer or board. Legislature may lawfully delegate such power to an officer or board. But the counsel submitted that it is the function of the legislature to provide guidelines for exercise of such discretion. Since no guidelines have been provided in the proviso of section 24, thus the entire section is ultra vires. Referring to the case of Sobho Gyanchandani v. The Crown PLD 1952 FC 29 learned counsel submitted that the proviso enabling the Government of Balochistan to dissolve the Local Bodies before the expiry of its term in fact is a case of delegated legislation. We have perused the aforesaid matter where section 1(3) of Pakistan Public Safety Ordinance (XIV of 1949) was challenged on the ground that proviso authorising Central Government to extend life of Ordinance was held as a case of delegation of legislative power to an authority other than the legislature. The same therefore, was declared ultra vires. We have failed to understand as to how proviso to section 24 can be at afl termed as a case of delegated legislative power. The reason being that neither the Government has been authorised to extend the period of promulgation of any legislative enactment nor power to frame rules or regulations nor to ascertain certain facts upon which a statute becomes effective. We, therefore, agree Witt, the arguments advanced by Mr. Tariq Mehmood learned counsel for respondents that in fact it is not a case of delegated legislative powers. The proviso has authorised the Government to dissolve local bodies before the expiry of such term and for the purpose of fresh polls. It is not understandable as to how this can be termed as a case of any legislative power. The legislature has vested the Government with power to dissolve the local bodies before the expiry of such term for the object of fresh poll. In the impugned notification the Government has exercised this power for the aforesaid object i.e. For conducting fresh polls. Likewise learned counsel made a reference to the case reported in PLD 1960 SC 854 but we find no relevancy of the argument because in that case also Mr. Justice Fazal-c-Akber (as he then was) held that section 57 of Electoral College Act was not a conditional legislation and dici not really delegate any legislative power. '
12. In this regard yet another report PLD 1956 (W.P.) Lah. 358 was relied upon by the counsel where the West Pakistan (Adaptation of Laws) Order, 1955 was challenged and declared illegal to the extent that it substitutes the word 'Commissioner' for the words 'Provincial Government' in section 238, Punjab Municipal Act (111 of 1911) and thus empowered the Commissioner instead of Provincial Government to supersede a Municipal Committee for maladministration. The order of the Commissioner was quashed. It was held that where a function is entrusted to the Government, the transfer of that function to another authority would in no sense constitute a purpose which would be subservient to adaptation. This authority has also no applicability to the facts of the present case. In the instant case the legislature has empowered the Government to dissolve the local bodies before expiry of their term for the purpose of holding fresh elections. The Government has not further transferred this power to any other authority but has taken action itself hence the aforesaid authority is inapt in the present case. As already observed the concept of delegated legislation to an authority 'in fact aims that while framing rules or regulations it must not subvert nor do anything contrary to the existing statutes. Thus we find no substance and force in the contention that legislature has given delegated legislative power by adding proviso to section 24 of the Ordinance. This argument is thus devoid of any force. In fact it is not a case of impossible delegation of legislative power. Furthermore as was held in PLD 1983 SC 358 that power of legislature to delegate authority to subordinate or outside authorities for carrying out laws into effect is established. However, in the instant case the theory of providing guidelines and doctrine of delegated legislation does not arise.
13. Learned counsel then attacked the proviso to section 24 which was subsequently added.
According to him the legislature has fixed term of local bodies as four years. By adding proviso the Government has been empowered to dissolve local bodies before expiry of such term. In order to appreciate the aforesaid argument we want to reproduce section 24 as under:- "24. Term of office .-41) The term of office of a Local Council shall be four years; or for such other period as the Government may specify commencing on the day on w-hich it assumes office provided that the Government may- (a)before the expiry of such term of office, and for the purpose of holding fresh elections dissolve any or all local councils and appoint any person to perform functions of the Local Council and its Chairman as may be specified; (b)on the expiry of such term of office, extend it for such period and appoint any person to perform such functions of the Local Council and its Chairman, as may be specified.
(2)--------------- it was argued that in the plenary provision the term has been specified as four years but by dint of proviso the Government can dissolve the local bodies any time it wanted. Thus the local bodies can be dissolved say one day or one week after they assume charge. If that be so, then the proviso be declared as void; for the reason that it negates the plenary section i.e. Section 24(l). Referring from Crawford the learned counsel argued that as a general rule the operation of a proviso should be confined to that clause or portion of the statute which directly precedes it in the statute. But this rule is not always applicable and it is not necessarily controlling, if the meaning and the purpose of the proviso is plain any inference from its position may and should be disregarded. On such interpretation learned counsel argued that on the one hand the term of office of the local bodies has been fixed as four years but on the other hand the Government has been given power to dissolve the local bodies any moment-it liked. Thus proviso is void because it does not give any sensible effect. Furthermore it cannot be reconciled with the body of the Act, therefore, proviso be declared as void.
14. We have given our anxious consideration to the aforesaid arguments. We proceed on the principle that it is the duty of the Court in the first instance to interpret different provisions of a statute in a manner as to bring in harmony its different sections in order to save the legislative intent and to avoid inconsistency and self-destruction amongst its different sections. From minute perusal of section 24 we do not rind any self-contradiction. The proviso in fact is controlling the main section with a condition that the Government has been vested with powers to dissolve the local bodies before term of their expiry in order to hold fresh elections.
15. In order to resolve the issue in hand we want to make it clear that the, term of office of a local council has been fixed as four years. But simultaneously after semi-colon the Government has further been empowered to specify such other period commencing on the day on which a local body assumes office. Thus it cannot be said that the object of section 24 of the Ordinance was that the term of office shall be exactly four years. The object of legislature seems to be that the Government may fix such term for such other period as it may like, on the day when a local council assumes office. The period of four years is thus not absolute stricto senso. By incorporating proviso the legislature wanted to allow time to the Government to make necessary arrangements for the purpose of holding fresh elections. Thus we do not find any contradiction or inconsistency in the proviso to the main plenary section. We are unable to find ourselves concurring with the learned counsel for the petitioner that !He import of the proviso can be extended to the limit that Government can dissolve a local council any time it likes. In fact if read as a whole it reveals that the dissolution is related to the fresh polls. Subject to the other provisions of the Ordinance the Government can dissolve local bodies at the expiry of term of office and for the purpose of holding fresh elections. These words do not connote that Government has been vested with unbridled, arbitrary or unfettered powers to dissolve local body a day or a week after assuming office as was argued by the learned counsel for petitioner. On the contrary the words used in the proviso unambiguously lay down that the local councils can be dissolved by the Government under section 24 of the Ordinance before the expiry of their terms of office and for ,the purpose of fresh elections. This is the natural meaning which can be attributed to the words so used in the proviso. If we try to construe any other meaning or by attributing any other construction as, was done by the counsel, then in fact we will be travelling in the wilderness and would not reach to any positive conclusion except the inconsistencies and contradictions.
It is a case where the proviso is to be read along with the man section. The word 'and' in section 24(l) (a) has been used conjunctively an not indisjunction, thus meaning thereby that Government can dissolve local councils for the sole object of fresh polls.
This brings us to the argument advanced by Mr. Basharatunah learned counsel for petitioner Mir Mehrullah Khan Mengal. According to Mr. Basharatullah the Government has no power at all to dissolve a local council under section 24 of the Ordinance in the instant case. In support of his argument learned counsel canvassed that section 24 provides two periods as "terms of office" firstly the term of office of a local council shall be fouryears and secondly for such other period as the Government may specify commencing on the day on which it assumes office. He stressed that as far as the first term is concerned that is absolute four years. As far as the second term of office is concerned it is being controlled by the proviso because it is the second term which is preceding the proviso. It was secondly contended that in section 74(1) (a) legislature has used words "such term of office" after the words "before expiry of"; which may be construed to be relatable to the second win of subsection (1). In other words the Government may dissolve local councils only when it has prescribed and specified the terms of office of local councils for such other period. Thus according to him if the-term of office of a local council is for four years then proviso shall not apply and the Government is not empowered at all to dissolve the local councils. The Government could, only dissolve the local councils if the term of office, was not four years.
We do not subscribe to such view for the reason that in fact it is subsection (1) of section 24 which is preceding section being controlled by the proviso. We agree with learned counsel to the extent that legislature has specified a term of four years for a local council. It is so because the word "shall" has been used. However, the Government has also been empowered to add to this period of four years; if it has so chosen at- the time of assuming of office of a local council. Such other period would mean nothing more or less than that the Government could in certain contingencies add to the period of 4 years. The word "other" has been deliberately used by the legislature which means a further period. According to Black's Law Dictionary "other" means different or distinct from that already mentioned; additional, or further. Similarly the Concise Oxford Dictionary defines word "other" not the same as one or more or some already mentioned or implied, separate in identity, distinct in kind, alternative or further or additional. Accordingly the Government has been empowered to specify any additional period to the aforesaid term. Such period, therefore, would be in addition to the main term of office of 4 years. Therefore the argument of Mr. Basharatullah is devoid of any force that proviso controls 1his ancillary and additional period but does not control the actual or substantial term of office of a local council. In fact the proviso controls both the terms of office i.e. Main as well as additional period, if any, as is evident from the plain reading of section 24(l) (a) of the Ordinance.
The second limb of the argument was that the legislature used word, .Such" in section 24(l) (a) of the Ordinance which refers to additional period but not to the actual period. - Mch" according to Black's Law Dictionary means "of that kind, having particular quality or character specified.
Identical with, being the same as what has been mentioned. Alike, similar, of the like kind, such represents the object as already particularised in terms which are not mentioned and is a descriptive and relative word, referring to the last antecedent. Learned counsel submitted that last antecedent to which word "such" may refer is the additional period but not the period of four years.
This argument is equally untenable because in case the Government does not specify such other period it would refer only to the period of four years; which is mentioned in the preceding para. From its plain and literal meaning we have come to the conclusion ,hat the Government has beer, empowered to dissolve any or all local councils before the expiry of such term of office and for the purpose of holding fresh elections. Such term is referred to both four years as well as period specified by the Government. If any, commencing on the day of assuming of office. However, in the instant case since the Government has not specified any other period, therefore, we will confine ourselves only to term of office of a local council as four years, We agree with learned Advocate- General that the words "before expiry" mentioned in section 24(l) (a) are Pertinent and meaningful.
It does not mean that unless exact period of four years, has elapsed, the Government cannot dissolve the local councils, The object was to enable the Government to make necessary arrangements for holding fresh elections.. Obviously conduction of elections is a tedious process requiring some time. The Government has been empowered to dissolve the local councils when they are completing their term of four years. In the instant case admittedly four years time would have literally come to an end in November, 1991. The. Government thought it proper to take three months time to arrange for holding of fresh polls. There is hardly any force in the contention that the Government could not dissolve local councils before November, 1991.
However, adverting back to the discussion in the preceding para. We I may observe that this power is a limited power and the Government cannot dissolve the local councils any time it likes. The term of office of a localshall be four years, notwithstanding any other provisions in the Ordinance. But when the local councils complete such term or are nearing completion of four j years then the Government may take such time for making arrangements for the fresh polls as is required, or is deemed fit. It is not the case before us that three months time is unreasonable for arrangements.
The legislature has also provided a machinery for this transitory period by authorising the Government to appoint any person to perform such functions of the local councils and its Chairman as may be specified. Thus from the perusal of the whole scheme it appears that the term of office of local councils shall be-four years; or such other (additional) period as Government may specify. Simultaneously when the local councils have completed their term of office the Government before theexpiry of such term may dissolve local councils and take such times as required to make necessary arrangements for the conduct of fresh polls and appoint any person during this transitory period to perform functions of the local councils and its Chairman.
During the arguments petitioner's counsel raised a suspicion that in fact the Government does not want to conduct fresh elections because in the notification the date for election was specified as 28th of September, 1991 whereas it was postponed. We inquired from learned Advocate General whether the Government wants to run the local bodies through its appointees for an indefinite period instead of elected representatives of the people to which learned Advocate-General submitted that the Government has already issued a detailed schedule in this regard (copy of which is placed before us). As per this schedule the elections are to be held on 28th of November, 1991. It is expected that the Government of Balochistan shall be holding local councils elections on the date so fixed i.e. 28th of November, 1991. However in the main petition the petitioners have challenged only dissolution of the local councils. Therefore, if the Government does not hold elections the petitioners shall be at liberty to challenge such action at an appropriate time. In this regard Mr. Muhammad Aslam Chishti invited our attention to the Principles of Policy laid down in the Constitution of Islamic Republic of Pakistan. In Article 32 it has been laid down that the State shall encourage Local Government institutions, composed of elected representatives of the area concerned and in such institutions special representation will be given to peasants, workers and women. Learned counsel further submitted that though said Article is part of Principles of Policy only but the Government is not supposed to run local Government institutions through the persons appointed instead of those elected by the people. Learned Advocatc-General has made it clear that the Government shall hold elections on 28th of November, 1991, therefore, there is no doubt left in our mind that such institutions will be run for an indefinite period by Government appointees instead of elected representatives of the people.
Last but not least, ground urged before us was that the petitioners have been condemned unheard. It was argued by the counsel for petitionersthat at least the petitioners should have been informed or given an opprotunity as they were holding a representative office. This argument is devoid of any force, firstly because the petitioners were not holding an office of profit and no right of petitioners has been infringed, secondly it is impracticable to issue notice to all members of the local councils. Thirdly in the circumstances we find that principles of Audi Alterarn Partein are not at all attracted when the Government takes action under section 24. However, if any local council or several local councils are dissolved on the charges of corruption or misappropriation of funds then alone this argument could possibly be advanced. In the instant case, however, the Government has not taken action under section 139 of the Ordinance but under section 24, where no such opportunity or notice is required.
Finally it was argued that the Government exercised its power arbitrarily --- --- ---- ---- ------- - -- ---- ---- --- --- The local bodies were dissolved on 15-7-1991 and the government has now announced the date of elections as 28th of November, 1991. According to learned counsel the local councils could conveniently perform their duties for another two months when they were dissolved.
It may be observed that the Government as per notification specified the date of elections as 28th of September, 1991, therefore, the action of the Government cannot be termed as arbitrary because normal arrangements for conduct of poll take this much time. However, since the Government has not postponed the elections to 28th November, 1991, we hope that the polls shall be held on the said date.
Concluding our discussion we hold that the Government is empowered under section 24 to dissolve the local councils for the purpose of holding fresh elections before the expiry of the term of office of four years or as specified by the Government subsequent thereto. We want to make it clear that the legislature used word "before expiry of' only to give such time to the Government as is necessary for making arrangements to conduct elections. Hence "before expiry" excludes only that much of time from four years which would be required for conduct of fresh polls. Consequently we find that the impugned notification has been passed with lawful authority. Resultantly we see no force in these petitions which are dismissed with no order as to costs.