' MIAN MUHAMMAD AJMAL, J.---In this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Abdul Akbar Khan, petitioner herein, has sought declaration to the effect that the Notification dated 7-3-1998 whereby election schedule was notified by the respondents for holding election to the Local Council, be declared to be without lawful authority and of no legal effect and further prayed that the impugned Notification for the election schedule be suspended till the disposal of the writ petition.
2. Succinctly stated the facts of the case as asserted in the petition are that the petitioner being a citizen of Pakistan, is entitled to cast his vote for the election of Union Council and District Council, District Mardan; that under the N.-W.F.P. Local Government Ordinance, 1979 (to be hereinafter called the Ordinance) respondent No,1 has decided to hold elections for the Local Council in the Province and in consequence thereto a schedule of elections has been notified/announced and the process of elections has been set in motion showing various dates for filing of nomination papers/scrutiny/withdrawals etc. And holding of elections on 18-4-1998; that the Notification for holding the elections as per schedule of elections is illegal, ultra vires, mala fide and, therefore, without lawful authority and of no legal effect.
3. Learned counsel for the petitioner contended that the Government has excluded the elections for District Council from the elections of Local Council, which is violative of section 3 (27) and section 8 of the Ordinance (ibid), which provides that the local council, constituted under the Ordinance include a District Council, a Municipal Corporation, Municipal Committee, a Town Committee and a Union Council. He contended that section 18 of the Act (ibid) provides the mode of elections of member of all the local council on the basis of adult franchise and separate electorate through secret ballot with the exception of women seat. He submitted that under the law every voter in the rural area has a right to cast two votes on the basis of adult franchise, one for Union Council and the other for District Council and if indirect elections to the District Council are held, the petitioner would be deprived of his valuable right to cast his vote for the District Council. He submitted that the decisions taken in a meeting held on 6-3-1998 that there shall not be direct elections to the District Councils and the Chairman of the Union Council shall be ex-officio members of the District Council, amounts to transgressing into the law as indirect election to the District Council is not envisaged by the Ordinance. He argued that such decisions have no force of law and cannot be implemented as such unless the Ordinance is amended either by an enactment of the Assembly or by an Ordinance. He submitted that the corrigendum issued on 19-3-1998 substituting the '
Urban and Union Council' for the 'Local Council' has no legal backing as the phrase introduced in the corrigendum is totally alien to the expressions used in the Ordinance, and such an amendment in the Ordinance through corrigendum Notification is illegal and unlawful.
4. Learned Advocate-General appearing for the Provincial Government argued that the scheduled date of elections i.e, 18-4-1998 as notified in the impugned Notification dated 7-3-1998, has already expired, therefore, this writ petition has become infructuous. He contended that there is no compulsion under the law to hold the elections to all the constitutions of the Local Council on the same day.
5. Mr. M. Sardar Khan, Advocate representing respondents 2 and 3 contended that petitioner has no locus standi and this petition is not competent. He submitted that the corrigendum dated 19-3- 1998 has not been challenged in the writ petition, therefore, the same is defective and, thus, not maintainable. He contended that elections to District Council have not been announced in the schedule, as there is no provision in law to hold the elections to all the local council simultaneously on one and the same day. He contended that the Government will hold elections for the District Council in accordance with law in due course of time and writ cannot be issued on apprehensions of the petitioner. He argued that the Cabinet decisions are only proposals and could take a legal status if Ordinance in terms thereof is promulgated or it is made an Act by the Assembly, therefore, the apprehension of the petitioners that the law by the said decision has been changed is unfounded. He submitted that the expressions 'Urban and Union Council' are not strange to the Ordinance as similar and synonymous expressions have been used in the Ordinance repeatedly and in view of the corrigendum the elections to the Urban Council and the Union Council shall be held and for the remaining local bodies the election shall be scheduled by the Government in due course of time and shall be held in accordance with law, as it is not the requirement of law to hold the elections to all the Local Bodies on the same date, therefore, it cannot be pressed into service that all the elections to all the Local Bodies should be held simultaneously. He submitted that 602 persons have been elected unopposed and if the schedule is disturbed, they would be condemned unheard.
6. We have given due consideration to the submission of the learned counsel for the parties and perused the file with their assistance.
7. It would be appropriate to reproduce the relevant provisions of the Ordinance and the Rules to adjudge the respective contentions of the parties.
"Section 3 (27). 'Local Council' means a Local Council constituted under this Ordinance, and includes a District Council, a Municipal Corporation, a Municipal Committee, a Town Committee and a Union Council.
Section 8. Constitution of Local Councils.--(1) The Local Councils to be constituted under this Ordinance shall be the following, that is to say:--
(a) a Municipal Corporation for the City of Peshawar;
(b) a Municipal Committee for each City other than the City of Peshawar.
(c) a Town Committee for each Town;
(d) a Union Council for each Union; and
(e) a District Council for each District.
(2) As soon as may be, the Local Councils mentioned in subsection (1) shall be constituted in accordance with the provisions of this Ordinance.
(3) A Local Council shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Ordinance and the rules, to acquire, hold and transfer property, both movable and immovable, and shall by its name sue and be sued.
(4) Government may, by notification, specify the name by which any Local Council shall be known and unless the name of a Local Council is so specified, it shall be known as the Local Council of the place where its office is situated."
The definition of the Local Council as given in subsection (27) of section 3 of the Ordinance would manifest that it includes District Council, Municipal Corporation, a Town Committee and a Union Council and this has been reconfirmed in section 8 of the Ordinance which provides the constitution of the Local Council which includes the aforesaid Local Bodies. The impugned Notification itself has used the expression of 'Local Council' which include the A District Council as per abovestated law, therefore, it is manifest that District Council being a necessary component of the Local Council cannot be excluded from the constitution of Local Council. The impugned Notification whereby the schedule of elections have been notified, admittedly excluded the election to the District Council which has been issued in disregard to the aforesaid provision of law, which has prejudiced the petitioner, who being an election and voter within the meaning of subsections
(17) and (63) of section 3 of the Ordinance, is an aggrieved person, thus, he has locus standi to question the legality and proprietary of the schedule.
8. The decisions taken in a meeting held on 6-3-1998 with regard to the amendments in the Ordinance cannot take the status of law and cannot be enforced till the law is amended either by an Ordinance promulgated by the Governor under Article 128 of the Constitution or by an Act of the Assembly. It has been observed by this Court in case of M/s Asif Flour Mills v. Government of N.- W.F.P. (PLD 1997 Peshawar 5) that, the long and short of whatever decision is taken in the Cabinet is that if approved by the Governor, it can be converted into Ordinance by the latter and thereafter, it takes the shape of law. A Cabinet decision if placed before the Assembly and converted into an Act would also take the shape of law. In all other cases it simply amounts to an internal working arrangement between the Departments and the Chief Ministerin-Cabinet. In the instant case the decision taken by the Cabinet on 26th March, 1992 has neither been translated into an Act nor into an Ordinance and thus would only be appreciated as a departmental arrangement."
The decisions of the meeting at the most can be said to be the proposed amendments which can only take form of law if promulgated by an Ordinance or by an Act of Assembly. It was even conceded by Mr. M. Sardar Khan, learned counsel for respondents 2 and 3 that decisions taken in the meeting are only proposals and cannot be termed as amendments, as amendment in the law can only be made through an Ordinance or by an Act of the Assembly. It may be mentioned here that section 18 of the Ordinance provides that elections of Members of all Local Councils shall be held on the basis of adult franchise and separate electoral through secret ballot except for women seats, therefore, unless section 18 of the Ordinance is amended in accordance with the provisions of the Constitution, the elections to the District Council cannot be held on indirect basis.
9. Vide corrigendum Notification, dated 19-3-1998 the original Notification dated 7-3-1998 was amended, whereby the word 'Local Council' was substituted as ' Urban and Union Council' in the earlier Notification, therefore, the latter Notification being corrigendum would be deemed to be part of the original Notification. The expression introduced in the corrigendum as 'Urban and Union Council' for the 'Local Council' is alien to the Ordinance as such an expression does not find mention in the Ordinance itself. The law has not used Urban Council anywhere in section 3 of the Ordinance though it does mention under subsection (59) of section 3 of the Ordinance an Urban area which means an area within the jurisdiction of a Town or Municipal Committee or Municipal Corporation and includes any other area which Government may by Notification declare to be an Urban area for the purpose of the Ordinance, however, Union Council has been defined under subsection (58) of section 3 of the Ordinance to be a Union Council constituted under the Ordinance. The meaning and the definition of the words and phrases has to be construed and ascertained from the law as a whole and in the context thereof, and it would be unconstitutional to import any foreign terminology into the law by any extra constitutional way as the law can only be amended through the Constitutional recourse. By the introduction of the phraseology 'Urban and Union Council' in the corrigendum, an inroad in law has been made to exclude the District Council from the scope of the Local Council, but with such an unpermissible exercise, law cannot be amended, unless so amended by the prescribed procedure.
10.
10. The upshot of the above discussion is that this writ petition is accepted, the impugned Notification and the corrigendum are declared to be ultra vires of the Ordinance and, thus, have no legal effect.
11. ' Since the Notification and corrigendum have been held to be ultra vires of the Ordinance, therefore, any action taken in pursuance thereto would be without lawful authority and of no legal effect. As such, the election of the persons elected unopposed is invalid. On the same analogy the application (C.M. No, 387/98) of Dr. Stephen Saleem Hamdard is rejected. No order as to costs.