MUNIR A. SHEIKH, J.---This judgment will also dispose of Intra --Court Appeals Nos.92, 93, 96, 97, 102, 123, 124, 125, 126, 127, 128, 129, 130, 131 and 132 of 1994 as they have been directed against the same judgment, dated 30-1-1994 passed by the learned Single Judge as also Writ Petition No.2311 of 1994 in which too questions regarding the validity ff the same Notification No.SOV(LG)8-32/93, dated 15th August, 1993 which was assailed in the writ petition from which the I.C.As. Have arisen has been raised.
2. The facts forming the background of these appeals shortly stated are that elections to Local Councils in Punjab were held on 28-12-1991 under the Punjab Local Government Ordinance, 1979.
The first meeting of the elected councils was held on or about 9-1-1992. According to section 26 of the Punjab Local Government Ordinance, 1979 the term of the councils was four years commencing from the date of the first meeting. Government of the Punjab, Local Government and Rural Development Department by order of the Governor issued a Notification on 15-8-1993 in exercise of powers under section 26-A of the Punjab Local Government Ordinance, 1979 providing that the fresh elections to the Local Councils in Punjab would be held in the month of January, 1994 and as a consequence thereof the term of office of the said Councils would stand curtailed with immediate effect. The legality of this Notification was challenged in Constitutional Petition No.9009 of 1994 and other connected writ petitions.
3. It was argued in the first instance before the learned Single Judge that the impugned Notification as also the provisions of section 26-A of the Punjab Local Government Ordinance, 1979 were violative of Articles 2, 2-A, 17 and 25 of the Constitution. This argument was repelled by the learned Single Judge and it was held that the same had no legal substance. Likewise, the argument that the impugned Notification was ultra vires of Articles 32 and 37(1) of the Constitution was also found to be without any substance. It was held that it has been implicitly provided in the Constitution that the validity of an action or of a law according could not be called in question on the ground that the same was not in accordance with the principles of policy.
4. Learned Single Judge while dealing with the argument raised on behalf of the petitioners in the writ petition as regards validity of section 26-A on the touchstone of principle of excessive delegation of legislative powers as also for the reason that the same conferred unlimited, unguided and arbitrary powers on the Government to dissolve a Local Council came to the conclusion that reading the provisions of the Ordinance as a whole and keeping in view the principles of harmonious construction of different provisions of statute it could not be held that there was excessive delegation of legislative powers inasmuch as section 26--A did provide a guideline as to on which point of time and before how much period prior to the expiry of the normal term of the Local Council, it can be dissolved. It was held that as per terms of section 26-A the Government was empowered to dissolve a Local Council only if the announcement had been made for holding fresh elections or- the elections had been held. According to the opinion of learned Single Judge the question of holding of elections normally would arise on the expiry of the term of a local council and it is in order to enable the Government to hold elections for the new Local Council to substitute the previous one, that the dissolution could take place only three or four months before the said expiry because that much time was necessary to hold fresh elections. It has also been held that by mere declaring that elections would be held in a particular month without fixing the exact date on which the same were intended to be held and giving the schedule of such elections the exercise of power was not in accordance with law as such the impugned Notification was bad in law on that score.
5. After having held that the impugned Notification was not valid the learned Single Judge however did not feel persuaded to exercise discretion in favour of making an order for the revival of the Local Councils on the ground that there were serious allegations regarding involvement of elected members of the Local Councils in a large scale corruption and embezzlement of Local Council Funds. It was also observed that as per their own showing in the writ petitions they were affiliated with a particular political party which was violative of the provisions of the Ordinance and the rules therefore, they were held to be not entitled to the exercise of discretion in their favour. It was however, directed that in case fresh elections were not held till 31-3-1994 those of Local Councils which had filed writ petitions only would stand revived w.e.f. 1-4-1994 and the remaining which did riot approach the Court were taken as having accepted the impugned Notification.
6. During the pendency of these appeals the Provincial Government promulgated the Punjab Local Government (Amendment and Validation) Ordinance, 1994 (VI of 1994) by virtue of which the following explanation was added in subsection (1) of section 26-A of the Ordinance; -- "For the removal of doubt, it is hereby declared that the Government has and shall be deemed always to have had the power to curtail the term of the Local Councils regardless of the duration of the residual term of the said Local Councils".
According to section 3 of this amending Ordinance the impugned Notification issued before the said amendment notwithstanding anything contained in any judgment or order of the learned Court was to be deemed to have been validly issued. After conferring status of validity on the said Notification strangely enough Provincial Government issued another Notification on 5-4-1994 through which the said Notification was superseded and it was provided that the elections to the Local Council would be held on 27th July, 1994 and as a consequence thereof the term of office of the Local Councils stood curtailed with immediate effect.
7. Through judgment dated 9-4-1994, we held that in view of the fact that the Notification impugned in the writ petition had been superseded by another Notification and the amending Ordinance having also been promulgated and enforced the situation had altogether changed therefore the appeals as also the writ petitions from which the same had arisen had become infructuous and the appellants could file fresh petitions if they wanted to challenge the vires of the amending Ordinance and the said fresh Notification. An appeal was filed before the Supreme Court of Pakistan against the said judgment. The Supreme Court accepted the said appeal and remanded the cases to this Court for deciding the appeals on merits after obtaining amended memo. Of appeals. The amended memo of appeals have been filed.
8.The main burden of argument presented by Mr. S.M. Zafar, Advocate, learned counsel for the appellants in one of the appeals which have been adopted by all the other learned counsel in the other appeals was that section 26-A of the Punjab Local Government Ordinance, 1979 and the explanation added in subsection (1) of the same through aforesaid amending Ordinance are invalid laws on account of principle of excessive delegation of legislative powers to the Executive Authority of the Province as these provisions of law do not provide parameters, guidelines to control and regulate the exercise of such power. According to him these provisions of law have the effect of conferring unlimited and uncontrolled power on the Executive Authority to dissolve the elected Local Councils at its whim. Mian Abdus Sattar Najam, learned Advocate-General on the other hand has defended the said provisions of the Ordinance. His argument was that the Local Councils were in fact that delegates of the Provincial Government to whom some of the functions of the Provincial Government had been delegated. He sought support for this argument referring to sections 6, 7, 8, 15, 23, 26, 26-A, 29, 35, 40, 42, 43, 45, 46, 48, 49, 50, 51, 51-A, 61, 68, 74, 75, 81, 88, 92, 96, 97, 98, 103, 105, 106, 108, 119, 121, 127, 128, 129, 130, 131 and 144 of the Ordinance to demonstrate that Provincial Government have overall control over the functions and affairs of the Local Councils as such the latter as delegator could withdraw the powers delegated to the delegatee as such conferment of powers on the Government to dissolve a local council cannot be objected to.
9. We do not find ourselves in agreement with the learned Advocate--General. The Local Councils have been created by law to whom specified functions have been allocated. They do 'not owe their creation to an act of Executive Authority therefore the principle of delegation of its powers by the Provincial Government to the Local Council is not attracted. The law by which the Local Councils have been created also specify the functions which they are to perform through elected representatives of the people therefore if dissolution of Local Council before the expiry of its normal term fixed in the statute itself was intended to be curtailed by an Executive Act, it was necessary that the law should have also provided the parameters, guidelines and the criteria to control and regulate the exercise of such power. The law on the subject is well-settled by now and need not be dilated upon. The principle which can be called out from the various precedents is that though it is open to the Legislature to delegate the matters of detail and regulation but it cannot abdicate Its legislative functions nor can a naked, unbridled and unguided powers be conferred upon an outside agency like executive. (See Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156 and The Province of East Pakistan, etc. v. Siraj-ul-Haq Patwari and others PLD 1966 SC 854.
10. A bare look at the amending Ordinance VI of 1994 is sufficient to show that it fails to meet the criteria mentioned above and is liable to be struck down. It may be reiterated that as the normal term of the Local Councils has been fixed by the Statute itself it cannot but by or under a law duly framed be curtailed. We are also of the view that the provisions of the amending Ordinance without any guidelines are discriminatory and are capable of being misused. As observed by the Supreme Court in Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 where the provisions are ex facie discriminatory and are capable of being misused, the same must be struck down. Also see M/s. East and West Steamship Company v. Pakistan through Secretary, Ministry of Commerce, Karachi, etc. PLD 1958 SC (Pak.)
41. The amending Ordinance VI of 1994, in our view, does not satisfy the abovementioned minimum requirements, therefore, we declare that it is not a valid-law. Notification No. Legis. 3(VI)/94, dated 5-4-1994 issued in pursuance thereof for the same reasons is also invalid with the result that the previous notification impugned in the writ petition remains intact the validity of which is to be adjudged on the touchstone of section 26-A of the Ordinance as it stood before amendment.
11. We have examined section 26-A of the Ordinance and find ourselves to agreement with the learned Single Judge that the same does not suffer from principle of excessive delegation of legislative powers as the said provisions of the Ordinance if read alongwith the other provisions the same do provide sufficient guidelines as regards the period to which extent the curtailment of term of Local Council can be made because it provides that the same could be made only if either the elections had been held or an announcement had been made for holding fresh elections. The normal term of the Local Councils according to section 26 is four years therefore the occasion to make is announcement for fresh elections would either arise after the expiry of that term or immediately before its expiry so that newly elected Local Councils may take over so that their should not be any vacuum. Under section 26 of the Ordinance the term of the. Local Councils can be extended, and it appears that this provision of law has been enacted to meet a situation where fresh elections for Local Councils could not be held before the expiry of the term of the existing Local Councils to enable the Government to hold fresh elections after extending the term of the existing Local Councils. In case it was intended to hold the elections before the expiry of the term of the existing Local Councils the Government likewise has been empowered under section 26-A to announce the date of elections alongwith its schedule so that newly elected councils should be available before the expiry of the existing Local Councils as such it can safely be I held that it was necessarily provided in this section that curtailment could be only for that much period closed to the expiry of the term of the Local Councils which was necessary for holding fresh elections before its expiry. In this view of the matter, learned Single Judge was right in holding that the curtailment could take place only for that much period which was necessary for holding the elections. Since in the Notification impugned merely an announcement had been made for holding elections in a particular month without specifying the exact date of elections and announcement of the schedule of elections thereafter therefore it was rightly held that the same did not fulfil the requirements of law p and was not valid.
12. The learned Single Judge did not feel persuaded to exercise discretion in favour of reviving the dissolved Local Councils in the facts and circumstances of this case. The view which prevailed for declining to exercise discretion was that there were allegations of large scale embezzlement in Local Councils Funds and that the members had openly announced their affiliation with a particular political party in the writ petition which was violative of the law and rules. This view was taken considering that the elections of the members of the Local Bodies under the law were required to be held on non-party basis with a view to keep the Local Bodies free from the influence of the political parties. It was found to be not a fit case on account of this conduct of the members of the Local Bodies for exercising discretion in favour of their revival.
13. The question of revival or otherwise of the Local Councils engaged our serious consideration and we heard learned counsel for the parties at length. The impugned decision to dissolve the Local Councils was taken by the then Care Taker Provincial Government installed as a result of consensus at the national level between the two rival political forces for a limited purpose of holding free, fair and transparent general elections in the country. The said Government cannot be said to have any political motive to benefit itself while taking such a decision. Though in the normal circumstances as argued by Mr. S.M. Zafar, Advocate there may be no nexus between the general elections in the country and the Local Councils but in the peculiar circumstances of this case if the Care Taker Government in order to achieve the object of holding fair and free general elections took such a decision the same was not wholly without substance, as such it did not suffer from mala fides as was urged in the Constitutional petition. The idea behind the dissolution of the Local Councils appears to be that there should be no possibility of raising any plea that the members of the Local Councils who had been declaring their affiliation with a particular political party had used the Local Councils Funds for any party in the General Elections. For this additional reason also, we are not inclined to disagree with the learned Single Judge on the question of declining the exercise of discretion against the restoration of the Local Councils.
14. We however, do not find ourselves in agreement with the learned Single Judge that in case the elections were not held as directed by him only those Local Councils should be restored which had filed the writ petitions and not the others. The Notification/impugned order was one single transaction as such there is no reason not to revive all the Local Councils in case the Government fails to hold elections as ordered.
15. For the foregoing reasons, the impugned judgment of the learned Single Judge is upheld with the modification that in case within three months from today the process for holding fresh elections of the Local Bodies is not commenced and taken to its logical conclusion all the Local Bodies shall automatically stand revived. In the above terms all the appeals and the writ E petitions are disposed of. The parties are left to bear their own costs.