For detailed reasons to be recorded in the judgment that would follow, the Court has reached the following final conclusion:
(1) The names of Governor and the Minister for Local Government and Rural Development Department are struck off as respondents in the respective writ petitions, in view of Article 248 of the Constitution.
(2) The impugned notification is not hit by the provisions of Articles 2, 2-A and 17 of the Constitution.
(3) Section 26-A of Punjab Local Government Ordinance, 1979 does, not suffer from the vices of excessive delegation or abdication of legislative functions by the Provincial Assembly.
(4) The stand and .thinking of Punjab Government is self-contradictory,inconsistent and not in accordance with the provisions of Punjab Local Ordinance including, section 26-A ibid.
(5) The line of reasoning that Provincial Government can curtail the term of Local Bodies, which is now 5 years under section 26 of the Ordinance, at any time during the term, is legally incorrect.
(6) The provisions of the Ordinance are to be so interpreted that it becomes a harmonious whole, and no provision is rendered nugatory, non-existent or redundant. Reading sections 26, 26-A and 159, it becomes clear:
(a) Government may extend the term of 5 years of the existing Local Bodies by six months or appoint Administrators thereof for the like period.
(b) There was no power with the Government to curtail the term of 5 years, so the necessity. arose for the introduction of section 26-A. It is, thus, an addenda, rather a proviso to section 26 (supplying the deficiency).
(c) The application of section 26-A is, therefore, to be very strict and inaccordance with the general scheme of the Ordinance.
(d) Under section 159 Government may dissolve a Local Council if charges against it are proved in an inquiry to . be concluded within 2 months of its suspension. If inquiry is not so concluded, the Local Council is to stand revived. In case of dissolution fresh elections are to be held within three months of dissolution, if the remaining term of the Local Council is not less than 9 months.
There is, therefore, no provision in the Ordinance visualising a situation where a Local Council can be non-existent for a period beyond 9 months.
7.Fresh election is a must within three months if charges against a Local Council are proved and it is dissolved as a consequence thereof. So equally fresh election is a must when the term of 5 years is curtailed. And section 26-Afully meets the eventuality.
It provides that Government may curtail the term of office of the Local Councils, if, fresh elections have been announced or held.
8. This brings us to the most crucial question: .what is meant by `Announcement of election'.
The term does not find any definition in the Ordinance. We have thus to scan the whole Statute Book of the country. Section 11 of the Representation of the People Act, 1976, gives the clue. It provides as soon as the President makes an announcement of the date or dates, on which Polls shall be taken, the Election Commission shall, by notification in the official Gazette, call upon a constituency to elect a representative or representatives and ...."
9. The announcement of election without "Poll" and "Polling date" is, thus no announcement in the eye of law. The announcement in the notification impugned is a hollow, ambiguous, meaningless, just a colourable exercise of power by the Governor, rather an eye-wash. The notification in this regard suffers from inherent illegality---. The so-called announcement made in the notification is legally deficient and not tenable.
10. The stand taken in the written statement and comments by the respondent Government that for the purposes of free, fair and transparent election to the National and Provincial Assemblies the curtailment of term of office of Local Councils was necessary, is wholly without any legal or Constitutional sanction. The holding of general election to National and Provincial Assemblies has no nexus with the existence/non-existence of the Local Councils. This ground does not find any support from the provisions of the Ordinance. .
The impugned notification is, therefore, declared to be illegal.
11. Should the other relief of revival of petitioner Local Councils be granted? Keeping in view the overall National interests and general public good in view and having given anxious considerations, the Court is not inclined to grant this relief to the petitioners outright nor the Government can be left free with a hollow, meaningless and sham announcement.
12. The Government have taken the plea that there was. large scale bungling, embezzelments and misuse of funds and resources by the Local Councils, inquiries were in hand and cases had been registered on the orders of High Court. Large size advertisements in the National Press have been filed as annexures. If these are at the expense of the funds and resources of the Local Councils, then certainly the Government is correct in this regard. Even otherwise every citizen and layman in the streets, markets, towns, cities and rural hamlets, is well aware of the bunglings, embezzlements, financial scandals and misuse of funds/resources and position by the local councils. The greater good of the public demands that the political will of the sovereign--the voters to the Local Councils in the Province, must prevail. Fresh election to the Local Councils seems to be the only remedy.
13. The Government in the impugned notification had announced election in the month of January and we all know it is now a question of not more than 40 hours. There is yet no move. Even in case of dissolution of a Local Council on account of proved charges fresh election is to be held within three months. In the present case already more than 5 months have elapsed. The Government is, therefore, well advised to hold election to the Local Councils till 31-3-1994.
14. This is all the more necessary to create uniformity. There are 29 Zila Councils, one Metropolitan Corporation, 7 Municipal Corporations, 63 Municipal Committees, 135 Town Committees and 2,392 Union Councils with thousands of Councillors and innumerable office-bearers in the Province. Only a small fraction i.e. 12 Zila Councils, the Metropolitan Corporation, one Municipal Corporation and one Municipal Committee are before the Court. The High Court can grant relief under Article 199 of the Constitution to an "aggrieved party" and not to those who seem to have foregone their rights, if any.
15. However, it is made very clear, that if the election process is not completed by 31st of March, 1994, it would mean that the Government is not interested in the general public good, the will of the political sovereign----electorate in the Province is not being honoured, and the provisions of the Ordinance are being violated, breached and bypassed All this would be hit by Article 4 of the Constitution (`To be treated in accordance with law is the inalienable right of every citizen'). In that eventuality the law must have its course and the writ petitioner Local Councils shall stand revived w.e.f. 1-4-1994.
16. The upshot is that W.P. No. 9194 of 1993 on account of the death of the petitioner Mian Abdul Majid stands abated. Civil Miscellaneous No. 1858 of 1993 on behalf of Muhammad Latif Rana and similar Civil Miscellaneous on behalf of Iqbal Mahmood Khokhar, Advocate, Councillor Halqa No. 55, Lahore, in W.P. No. 9009 of 1993 stand dismissed not having been argued and pressed during arguments. Rest of the writ petitions are-finally disposed of in terms of the above conclusions.