' This judgment will govern with Writ Petitions No,11320 of 2003 (Nadeem Afzal Gondal v. Government of Punjab and ,others), 11358 of 2003 (Khawaja Ahmad Hassan v. Government of Punjab and others), 11383 of 2003 (Nazar Muhammad Gondal v. Government of Punjab and others) and Writ Petition No, 11996 of 2003 (Nazar Muhammad Gondal v. Government of Punjab and others) as common questions of law and facts are involved in all the petitions.
2. Nadeem Afzal Gondal petitioner in Writ Petition No, 11320 of 2003 is a Tehsil Nazim, Tehsil Municipal Administration, Malikwal District Mandi Baha-ud-Din. Internal recall motion under section 63 of the Punjab Local Government Ordinance, 2001 (hereinafter referred to as the Ordinance) was moved and passed by majority of Members of Tehsil Council against him, consequently on 11-8- 2003 Secretary, Local ' Government and Rural Development, Punjab in exercise of his power under section 197 of the Ordinance issued the notification as under:-- "Notification No, SOV(LG)-17 of 2002 (P).---Whereas, on approval of no-confidence motion against Tehsil Nazim, Malikwal by the Tehsil Council, Malikwal, the said Tehsil Nazim has lost confidence of the House, therefore, in exercise of powers conferred under section 197 (Removal of Difficulty) of the Punjab Local Government Ordinance, 2001 the Government of the Punjab hereby authorizes the Tehsil Municipal . Officer, Tehsil Municipal Administration, Malikwal to operate the accounts of TMA Malikwal alongwith District Coordination Officer, Mandi Bahauddin as Joint signatories to sign the pay bills/cheques for the purpose of withdrawal disbursement of salaries to staff of Tehsil Municipal Administration, Malikwal and payment of utility bills from the funds of TMA concerned with immediate effect and in the public interest till further orders. The Tehsil Nazim, Malikwal as well as Naib Tehsil Nazim, Malikwal are ceased to perform their functions till further orders."
' He challenged the aforesaid notification in the petition in hand on 16-8-2003'. The petition was admitted and the operation of the notification was suspended on 18-8-2003 and the writ petition was fixed for hearing on 3-9-2003.
3. Government of the Punjab framed Rules on 1-9-2003 under section 191 of the Ordinance the Punjab Election Authority was authorized to conduct second phase of internal recall motion in terms of section 63(4) of Ordinance. The said authority on 2-9-2003 issued a fresh notification and restrained petitioner 'from functioning as Nazim under rule 14(1) and Government of Punjab under sub-rule (2) nominated a Government functionary to exercise his power till completion of election.
Petitioner submitted Civil Miscellaneous No, 1337 of 2003 seeking permission for amendment of the writ petition to challenge the fresh notification and the rules referred above. Amendment was allowed on 17-9-2003, hence the present amended petition was argued by Mr. Hasnaat Ahmad Khan, learned counsel for the petitioner at length wherein he addressed the arguments identical with that of Mr. Umar Ata Bandial learned counsel for Khawaja Ahmad Hassan, petitioner in Writ Petition No,11358 of 2003.
4. Khawaja Ahmad Hassan is an elected Nazim of Data Gunj Baldish Town, Lahore. Internal recall motion was moved against him by Mian Azhar Javed and seconded by Malik Shahzad Azam and put before the House on 15-8-2003. Thirty members voted for the motion and sixteen against it. The motion was carried. Secretary, Local Government and Rural Development Department on 16-8- 2003 issued the following notification:- 'Notification No, SOV(LG)-17./ 2002(P).---Whereas, approval of no-confidence motion againt Town Nazim, Data Gunj Bakhsh Town, Lahore by the Town Council, Data Gunj Baldish -Town,. Lahore, .The said Town Nazim has lost confidence of the House, therefore, in exercise of powers conferred under section 197 (Removal of Difficulty) of the Punjab Local Government Ordinance, 2001 the Government of the Punjab hereby authorizes the Town Municipal Administration, Data Gung Bakhsh, Lahore to operate the accounts of TMA Data Gunj 3akhsh, Lahore alongwith District Cooperation Officer, City District Government, Lahore as joint signatories to sign the pay bills/ cheques for the purpose of withdrawal/disbursement of salaries to the staff of Town Municipal Administration, Data Gunj Bakhsh, Lahore and payment of utility bills from the funds of TMA concerned with immediate effect in the public interest till further orders.
(2) The Town Nazim, Data Gunj Bakhsh Town, Lahore is ceased to perform its functions till further order."
' The petitioner assailed the recall proceedings and the notification in this Court and on 21-8-2003 implementation of the notification was stayed. On 22-8-2003 petition was admitted, notice was issued to the Advocate-General Punjab and the Attorney-General for Pakistan as the petitioner claimed that some provisions of the Ordinance were violative of fundamental rights enshrined in the Constitution. The case was ordered to be fixed on 3-9-2003.
5. Government of the Punjab on 1-9-2003 framed rules under section 191 of the Ordinance and authorized the Punjab Election Authority to conduct second phase of recall motion. Under rule 14(1) powers were conferred on the Election Authority to restrain Nazim from running administration of his Town till election of new Town Nazim.
' Petitioner submitted Civil Miscellaneous No, 1282 of 2003 in his writ petition seeking amendment to challenge the validity of the rules framed on 1-9-2003. The amendment was allowed on 15-9-2003, hence the petitioner alongwith amended petition is under consideration.
6. Mr. Nazar Muhammad Gondal petitioner in Writ Petition No, 11383 of 2003 was elected Zila Nazim of Mandi Baha-ud-Din in the recent local bodies elections. Ch. Akhtar Mehmood, Sahi motion moved internal recall motion against him on 12-8-2003 which was endorsed by Jamil Ahmad Gujjar. The motion was received in the office on 13-8-2003 at 9-00 a.m. And the special meeting was called for 16-8-2003 at 11-00 a.m. The motion was carried by majority of the members on 16-8- 2003. Petitioner challenged the recall proceedings in the Constitutional petition. On 27-8-2003 notice was issued on the application for interim relief for 3-9-2003. Meanwhile on 1-9-2003 Government framed rules under the Ordinance and Nazar Muhammad Gondal filed another Writ Petition No,11996 of 2003 challenging the validity of the rules framed on 1-9-2003 and published on 18-9-2003.
7. These petitions were heard at length on many dates and were decided by me on 22-9-2003 by a short order for which the reasons were to be recorded later on. The present detailed judgment is in continuation of the aforesaid order.
8. Messrs Umar Ata Bandial, Muhammad Ahmad Qayyum, Syed Faisal Hussain Naqvi, and Mr. Hasnaat Ahmad Khan counsel for petitioners submitted that the proceedings of no-confidence motion moved and carried against the petitioner are mala fide. They were performing their functions honestly and diligently. The contents of the recall motion are not supported by any material to justify their recall from their respective offices. Petitioners were not playing on the tune of the Provincial and City Government and in order to adjust their own people, the proceedings have been manoeuvred against them. Members elected against special seats have not elected the petitioners, therefore, they were not competent to vote against them. If the votes of said members are excluded from count the recall motion loses the majority.
' Learned counsel for Nazar Muhammad Gondal in his first petition contended that the motion was moved on 12-8-2003 received by Zila Council Secretariate Mandi Bahauddin on 13-8-2003 at 9-00 a.m. The Sessions was summoned for 16-8-2003 at 11-00 a.m. As the Zila Council was not in session at that time. Three days' clear notice was not given, therefore, on that score the motion and the proceedings thereon are liable to be declared without lawful authority. In support of his contention he relied upon section 24(2) of the Ordinance, Messrs Malik Muhammad Nawaz, Haji Aziz Ahmad Commission Agents, Chakwal. v. Syed Mehmood Hussain (1997 SCMR 264), Anokhmal Bhurelal v.
Chief Panchayat Officer, Rajasthan Jaipur and others (AIR 1957 Rajasthan 388) and Commissioner of Income Tax v. Ekbal & Co. (AIR 1945 Bombay 316). The rules framed under section 191 of the Punjab Local Government Ordinance No, XIII of 2001 on 1-9-2003 are inconsistent with the provisions of the Ordinance. Said rules have been framed in a mala fide manner for replacement of Nazims of respective Councils by favourites of Government. The rules were framed on 1-9-2003 and published on 18-9-2003 but enforced at once. The enforcement of the rules prior to publication in the official Gazette is violative of subsection (3) of section 191 of the Ordinance and judgments of the superior Courts.
' Learned counsel for Khawaja Ahmad Hassan in support of his contentions, relied upon Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others (PLD 1997 Lahore 38). He also argued that Malik Shahzad Azam secondor of the motion in the House delivered a speech during deliberation of the motion that the allegations made in the recall motion, the material published in the newspapers are not based on truth, every thing has been done under a pressure and the efficiency of the House is excellent which has been appreciated at all levels and he does not accept the allegations against Khawaja Ahmad Hassan as correct. On the basis of speech of Malik Shahzad Azam learned counsel submits that no confidence motion was carried out under pressure and duress and, as such is result of mala fide exercise undertaken to oust him from the office of Nazim.
9. Syed Shabbar Raza Rizvi learned Advocate-General, Punjab assisted by Mr. Tahir Mehmood Gondal, Assistant Advocate-General has rebutted the arguments of the learned counsel for the petitioners and submits that the rules read with sections 63, 24 and 191 of the Ordinance are consistent and cited, the case Mian Ziauddin v. Punjab Local Government and others (1985 SCMR 365). Prior publication of the rules is not mandatory under section 22 of the General Clauses Act, 1956. The contention that they are made malafidely is baseless. He relied upon The State v. Zia-ur- Rehman and others (PLD 1973 Supreme Court 49), The Federation of Pakistan through The Secretary, Establishment Division Government of Pakistan, Rawalpindi v. S .Zed Ahmad Khan and others (PLD 1974 Supreme Court 151) and Fauji Foundation and another v. Shamimur Rehman (PLD 1983 Supreme Court 457), Mehr Zulfiqar Ali Babu and another v. Government of the Punjab and others (PLD 1997 Supreme Court 11) and Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312). The rules have been made to achieve purpose of subsections (4) and (5) i.e, to complete the process fairly and justly. Rules have been made to regulate power conferred under sections 24/63 read with rules 14 and 26. Sections 191, 24 and 63 of the Ordinance read with rules 14 and 26 the doctrine of ancillary jurisdiction and consequential order may be applied to ensure to achieve objective of law of fair and just recall election. Rule 14 itself states that the power of Election Authority is discretionary. The power of suspension is provided to prevent misuse of power and to ensure free and fair exercise of right of vote. In reply to the arguments that rules are against natural justice, he submitted that same have been made under the doctrine of delegated legislative power of the Governor of Punjab exercising his power under section 191 of the Ordinance and are consistent with the principle of natural justice. It is the statutory duty of the Election Authority to issue notification under section 24(4) to be interpreted with rules 14 and 26 and referred Zahoor Ahmad and others v. The Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1999 Lahore 139). It is a valid piece of law made by the competent authority. Members of special seats are members of the councils, therefore, section-63 read with section 65 of the Ordinance empowered them to vote in a recall motion and cited Ch. Sadiq Ali v. Collector, Gujranwala and another (PLD 1964 (W.P.) Lahore 255).
He further contended that Article 199 of the Constitution does not permit High Court to enter into investigation of disputed facts. No material has been placed on record to prove the allegations of mala fide and these disputed factds cannot be investigated by this Court in these petitions in view of the law laid down in The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 Supreme Court 151) and Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 Supreme Court 415). He lastly argued that the recall motion was carried by majority of the members against the petitioners and business of the Council cannot be run unless its Nazim enjoys the support of majority in the House.
The impugned orders and the notification are perfectly in accordance with law and, as such, the petitions are liable to be dismissed.
10. Mr. Yawar Ali learned Deputy Attorney-General adopted the arguments of learned Advocate- General
11. Heard. Record perused. Nazar Muhammad Gondal in his earlier writ petition mainly challenged the no-confidence motion on the ground that clear three days' notice was not given in terms of subsection (2) of section 24. The record shows that recall motion was signed on 12-8-2003, received by respondent No,4 on 13-8-2003 at 9-00 a.m. Special meeting of House was called for 16-8-2003 at 11-00 a.m., the three days' notice as contemplated by subsection (2) of section 24 of the Ordinance was complied with as it was put up before the House after three days and two hours. 1997 SCMR 264 referred by petitioner is not applicable to the facts of this case. One month's time was given by the Court in said case and the day on which order was passed was excluded. In the case in hand minimum 3 days and maximum 7 days' period is prescribed in section 24 itself which was complete at 9-00 a.m. On 16-8-2003. Similarly citations from Indian jurisdiction referred by him are not attracted to the facts of this case. No prejudice has been caused to petitioner as it would be merely an irregularity as laid down in Ch. Sadiq Ali v. Collector, Gujranwala and others (PLD 1964 (W.P.) Lahore 255), therefore, there is no violation of section 24(2) of the Ordinance.
12. Khawaja Ahmad Hassan has vehemently relied upon the speech of Malik Shahzad Azam in the House, secondor of the motion wherein he expressed that the move has been procured under pressure but at the same time he has not withdrawn his signatures on the said recall motion. He has not made any application for this purpose. He has not disowned his signatures. If he was under pressure at the time he put his signatures he could announce its withdrawal but he has not done so. He is also petitioner No,21 in Writ Petition 11386 of 2003 subsequently filed by Mian Muhammad Rashid Iqbal and 29 others against Khawaja Ahmad Hassan wherein he supported the contents of the motion and prayed for modification of the order, dated 22-8-2003 passed by this Court in the instant writ petition. The conduct of Malik Shahzad Azam shows that instant writ petition. The conduct of Malik Shahzad Azam shows that he is playing a double role, at initial stage supported the motion and in the House raised certain objections against it and subsequently by becoming co-petitioner with Mian Muhammad Rashid Iqbal negated contents of his earlier speech made in the House. On the basis of mere speech of Malik Shahzad Azam the motion cannot be said to have been carried out under coercion or duress or in a mala fide manner. The aforesaid thirty petitioners are against Khawaja Ahmad Hassan. He does not enjoy the confidence of the majority. In a democratic set-up the head of the Institution can only continue to hold the office and transact the business so long he enjoys the support of majority in the House. In the absence of majority's support it is not possible for him to function as Nazim. Section 63 which deals with internal removal of Town Nazim reads. As under:-- "63. Internal recall of a Tehsil Nazim.-(1) If in the opinion of a member of the Tehsil Council, there is reason to believe that the Tehsil Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity to improve governance and the delivery of services, he may, seconded by another member of the Council, give a notice to move a motion in the Tehsil Council through Naib Tehsil Nazim for recall- of Tehsil Nazim.
(2) On receipt of notice referred to in subsection (1), the Naib Tehsil Nazim shall summon a session of the Tehsil Council not earlier than three days but not later than seven days, if the Tehsil Council is not already in session.
(3) Where the Tehsil Council is already in sessions, the motion referred to in subsection (1) shall be taken up for deliberations on the next day from its receipt by the Naib Tehsil Nazim.
(4) If the motion referred to in subsection (1) is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the Tehsil.
(5) Where the motion is approved by simple majority of the members of Union Councils of the Tehsil present and voting, the Tehsil Nazim shall cease to hold office from the date of notification to be issued in this behalf by the Election Authority.
(6) Where the motion fails in the Tehsil Council, the proposer and seconder of such motion 'shall lose their seats both as Union Nazims and members of Tehsil Council.
(7) The Tehsil Nazim shall have the right to appear before the Tehsil Council and address it in his defence.
(8) No motion for recall of Tehsil Nazim shall be moved during the first six months of assumption of office of Tehsil Nazim nor shall such motion be repeated before the expiry of one .Year from the rejection of previous motion.
' The provision relating to Tehsil Nazim apply to the Towns under section 51 of the Ordinance.
Majority of the members of the Council are against the petitioner and motion of recall was carried in the House, as such, the first phase has been successfully completed against him."
13. The allegation of mala fide on the basis of speech of Malik Shahzad Azam in the House and the other assertions made in these petitions cannot be examined under Article 199 of the Constitution as they need factual inquiry in the disputed facts per law laid down in the Federation of Pakistan through the Secretary, Establishment Division v. Saeed Ahmad Khan and others (PLD 1974 Supreme Court 151), the relevant observations are as under:-- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, 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 upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving inquiry into the files of the Government for the purposes of fishing out some kind of a case.
"Mala fides" literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by anyone of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala. Fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterized as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorized by the law but for the personal aggrandizement of the person empowered with the power to make the order of acquisition, or because the person so authorized tO take 'action bore any personal grudge against the person in respect of whose lands or properties action has been taken. Similarly, if the acquisition of the land or the taking over of industries is authorized in certain specified circumstances and for certain specified purposes, then the taking of action in such a case for purposes not so specified or in circumstances not proved for by the law would amount to colourable exercise of power or a fraud upon the law.
' In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession.
' It is true that in the case of Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 323 it had been pointed out that in the case of a detention of a person the initial onus is on the detaining authority to prove that detention was lawful but this principle does not apply in other cases where the onus is initially upon the person alleging mala fides to prove mala fides. It would be wrong, therefore, in such cases to call upon the Authority to produce evidence in its possession to justify its action merely on the basis of a vague allegation that the action has been taken mala fide, In such cases the party making the allegation should first be called upon to adduce proof and after he has led evidence to make out a prima facie case then and only then should the other side against whom the allegation of mala fides is made be called upon to justify the action. If the Courts keep this in view, we venture to think that the difficulties to which the learned counsel appearing on behalf of the Governments have referred will not arise. In this connection we may also refer to the observations of this Court in the case of Lt.-Col. Farzand Ali v. Province of West Pakistan PLD 1970 SC 98, where the question arose as to whether compulsory retirement of an officer was mala fide. This Court observed as follows:-- "In the present case from the material that have been placed before us, all that can be said is that the functionaries responsible for deciding the question of the retirement of the appellant in Civil Appeal No,100 of 1966 may have made a wrong judgment but there is nothing before us which would lead us' to the inference that the action was necessarily mala fide err the result of any conspiracy. There is no allegation that anyone in particular was ill-disposed towards him or had any special personal reason for getting rid of him. Nor did he state as to what was the nature of the conspiracy against him or who were the alleged conspirators. A general allegation of hostility against all senior officers from even before partition was not sufficient to establish mala fides of those who were ultimately responsible for the decision to compulsorily retire him. Mala fides have to be alleged with particularity and a mere assertion of a general malice cannot be sufficient for this purpose."
'The Honourable Supreme Court reiterated this view in the case of Fauji Foundation (PLD 1983 Supreme Court 457) and Mian Ziauddin (1985 SCMR 365). There is no dispute that when an action is mala fide, without jurisdiction or coram non judice same is nullity in the eyes of law and is to be struck down whenever brought into the notice of the Court. The judgments cited by the learned counsel for the petitioners in support of said proposition of law need no.Comments as in the instant petitions petitioners failed to prove mala fide or pressure exercised by Provincial or the City Government. Mala fide is not proved by any undisputed material on the record and factual inquiry in disputed facts cannot be undergone under the Constitutional jurisdiction as observed by the Honourable Supreme Court in the judgments referred above. In these circumstances, the citations relied upon by the petitioners are of no help to them. The contention that no-confidence motion was manoeuvred under pressure and carried in mala fide manner in the circumstances has no merit.
14. The objection against the rules framed by the Government of Punjab on 1-9-2003 is devoid of any merit. Section 191 of the Ordinance reads as under:-- "191. Rules,---(1) The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters specified in Part I of Fifth Schedule.
(3) The rules made under subsection (1) shall be subject to previous publication in the official Gazette and shall meet the following considerations:--
(a) Consistency with democratic decentralization and subsidiarity;
(b) enhancement of welfare of the people;
(c) fairness and clarity; and
(d) natural justice and due process of law."
' The Ordinance empowered the Government to frame the rules to carry out the purposes of the Ordinance. The rules have been framed in accordance to the Ordinance and no inconsistency has been pointed out during arguments, therefore, no valid objection can be raised against them.
Punjab Election Authority is empowered by rules to conduct second phase of election and meanwhile to issue interim orders consistent with the spirit of parent law. The order of the Government and the Election Authority pursuance to rule 14(1)(2) is not repugnant to the Ordinance or any other law. The object of permitting them to adopt interim measures is to keep the atmosphere smooth and transparent for holding of fair election. Petitioners were elected by all the members of the Union Councils of Zila in case of Zila Nazim and members of Union Councils in case of Tehsil Nazim and members of Union Councils of Town in case of Town Nazim, therefore, they are entitled to vote for recall during second phase. The Ordinance and the rules have provided that during first phase if House shows no-confidence in the Nazim they have to make a move and if it succeeds the matter is to be put up before the members of their respective constituencies to express their confidence or no-confidence. The explanation to section 24, subsection (4) of said section and subsection (4) of section 63 authorize the Election Authority fore causing of voting of Zila Nazim, Tehsil Nazim, Town Nazim and the Union Nazim. The rules under a statute unless repugnant to the Constitution or inconsistent with parent law cannot be struck down in view of the law laid down by the Supreme Court in Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others (PLD 1997 Supreme Court 11). The relevant observations of the Supreme Court run as under:-- "15 From the review of the above case-law, it is evident that the Court is not at liberty to inquire into the motives or mala fide on the part of the Legislature, once a statute is competently made the Court is not entitled to question the wisdom or fairness of the Legislature. Nor the Court can refuse to enforce a law competently made on the ground that the result would be to nullify its own judgment. The latter proposition of law has been enunciated by this Court inter alia in the case of the State v. Zia-ur- Rehman (supra),Messrs Mamunkanjan Cotton Factory v. The Province of Punjab and others (supra) and Haji Ghulam Rasool and others v. The Government of Punjab (supra). In the above second case the Governor by issuing the Punjab Cotton Control (Validation of Levy of Fee)
Ordinance, 1971, nullified the effect of the judgment of the erstwhile High Court of West Pakistan rendered in the case of Hakimuddin v. Chief Cotton Inspector (PLD 1960 Lahore 709), where it was held that the recovery of the cotton fee from the petitioner's ginning factory was ultra vires the West ' Pakistan Cotton (Control) Act, 1949. This Court upheld the above validation Ordinance.
Whereas in the above second unreported judgment relating to Darbar of Hazrat Data Gunj Bakhsh, this Court upheld the Ordinance No, XVI of 1971 promulgated by the Governor of Punjab, the effect of which was that it had taken away the rights conferred upon the Majawaran by the judgment of this Court reported in PLD 1971 Supreme Court 376. It may also be pointed out that in the case of Piare Dusadh and others v. Emperor (supra) the Governor-General promulgated an Ordinance inter alia validating the convictions which were held illegal by the Federal Court of India. When the matter again brought before the Federal Court assailing the above validating Ordinance, it upheld the validity of the said Ordinance."
' The rules framed under the Statute could not go beyond and overreach Statute itself. The amendment in the rules in the aforesaid case was held to be directory and not mandatory. The rules under question were framed by the Competent Authority consistent with the Ordinance, therefore, the objection of the petitioners is repelled.
15. The rules were framed on 1-9-2003 and made applicable forthwith. Subsection (3) of section 191 of the Ordinance provides that the rules made under subsection (1) shall be subject to previous publication in the official Gazette and shall meet the following consideration:--
(a) Consistency with democratic decentralization and subsidiarity;
(b) enhancement of welfare of the people;
(c) fairness and clarity; and
(d) natural justice and due process of law.
' The rules could only be applied after their publication in the official Gazette. The cases were fixed in this Court on 3-9-2003 and action under rule 14(1)(2) was taken, the notifications suspended by this Court were withdrawn and fresh notifications were issued to debar the petitioners from functioning Nazims of their respective councils. The rules were published in the Official Gazette on 18-9-2003 and could not be applied prior to publication in the Official Gazette in view of subsection
(3) of section 191 of the Ordinance, Mumtaz Hussain v. Chief Administration Auqaf (PLD 1976 Lahore 1511), Muhammad Suleman and others v. Abdul Ghani (PLD 1978 Supreme Court 190), Ismail v.
Member, Board of Revenue, Punjab, Lahore and 13 others (2000 YLR 295) and Messrs Nemat Flour Mills (Pvt.) Ltd. Through Director and 6 others v. Government of the Punjab through Secretary, Local Government and Rural Development Department, Lahore and 3 others (2001 YLR 835). The issuance of notifications against the petitioners by the Punjab Election Authority and the Government in these circumstances are unlawful. All the petitions are disposed of in the terms indicated in the short order.