ZULFIQAR ALI BABU Versus GOVERNMENT OF PUNJAB

AJMAL MIAN, J.---The above four Constituiton Petitions have been filed under Article 184(3) read with Article 187 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, and Order XXXIII, Rule 6, of the Supreme Court Rules, 1980, hereinafter referred to as the Rules, by the petitioners who were office-bearersfmembers of the Zilla Councils, District Councils and Town Committees etc. It will be instructive to reproduce the prayer made by them from the memo of Conscitutivn Petition No.36 of 1996, which reads as follows:--

"It is, therefore, humbly prayed that the impugned enactment of Punjab ,Local Government (Repeal) Act, 1996, may graciously be declared without lawful authority, being violative of Articles 4, 17, 25 and 32 of the Constitution of the Islamic Republic of Pakistan, 1973.

It is further prayed that the members of the Majority Party in the Provincial Assembly may graciously be declared to have rendered themselves as disqualified to remain as members of the House and proceedings for contempt may be initiated against the Majority Members of the Provincial Assembly of the Punjab for unsuccessfully trying to frustrate the decision of this august Court passed on 26-6-1996 in Civil Appeals Nos. 1254 and 1255 of 1996."

2.The brief facts are that on 28-12-1991 elections were held of all the local councils in the Province of Punjab under the late Punjab Local Government Ordinance, 1979 (Punjab Ordinance No.VI of 1979), hereinafter referred to as the late Ordinance, which were numbered 2629. The first meeting was held on 9-1-1992. However, through a notification dated 15-8-1993 issued under section 26-A of the Ordinance, the Governor of the Punjab directed holding of fresh electrons of the local councils in Punjab iii the month of January, 1994. He also appointed the officials named in column 3 of the Schedule to the above notification as the Administrators of the local councils mentioned therein. It seems that as many as 19 Writ Petitions were filed in the Lahore High Court or. or about 16-8-1993 by the office-bearers/members of the local councils impugning the aforementioned notification,

3. The above writ petitions were allowed by a learned Single Judge through the judgment dated 30-1-1994 but the local councils were not restored and the Provincial Government was given two months' time to hold elections of the local councils, failing which, the local councils, in respect of which the above writ petitions were filed, were to be restored. The petitioners were not satisfied with the above relief and, therefore, they filed Intra-Court Appeals challenging the above portion of the judgment, whereby, instead of restoring the local councils, the Government was allowed two months to hold the local councils elections.

????? 4. ???? It appears that while the above Intra-Court Appeals were pending, the Provincial Government of the Punjab took two actions, namely:

(i) ??????? By Ordinance No. VI of 1994, Explanation to subsection (1) of section 26-A of the Ordinance was added cinpuwering tic Government to curtail the terms of local councils regardless of the duration of the residual terms of the said local councils. A new section validating the notifications already issued under section 26-A of the Ordinance was also added.

(ii) ?????? A notification under section 26-A of the Ordinance was issued fixing a fresh date of local councils' elections, namely, 27-7-1994 in supersession of the previous date. '

It further seems that the aforesaid I.C.As. were dismissed on 9-4-1994 by, Division Bench of the Lahore High Court on account of .the above new development, but the above judgment of the Division Bench was set aside by this Court on 12-4-1994 and the cases were remanded to the High Court with the direction to allow the petitioners to amend the memo. of petitions. After the above remand order, aforementioned Intra-Court Appeals were disposed of through judgment dated. 19-2-1595. The Provincial Government was given three months' time to hold the fresh elections of the local councils subject' to the condition that in case of failure on the part of the Provincial Government, all the local councils would stand restored and not only those which were the subject matters of the aforesaid Intra-Court Appeals. Then the petitioners approached this Court through Civil Appeals Nos. 1254, 1255 and 1256 of 1996 with the permission which were allowed by a short order slated 26-6-1996, which reads as under:-- ??????????????????? ~

"For reasons to b6 recorded later otL, we allow Civil Appeals Nos, I254 and 1255/96 and set aside the impugned judgment dated 19-2-1995 of the Division Bench of the Lahore High Court and order restoration of all tire incat bodies/councils in the Province of Punjab to enable them to complete their term up tn 9-2-1997 as contemplated under section, the Punjab Local Government Ordinanct. 1979. C.A.No.1256/96 -?disposed of as not pressed.

(2) ?? The learned counsel for the appellants have stated and undertaken before us that the appellants would withdraw petitions if filed by them seeking relief in the shape of quo warrnto connected with the subject?matter of these appeals."

5. It appears that before the reasons in support of the above short order were released, the Provincial Assembly of Punjab, on . the following day i.e. 27-6-1996, passed The Punjab Local Government (Repeal) Act, 1996 (Act VI of 1996), hereinafter referred to as the Repeal Act. Section 2 of the same has direct bearing and, therefore, it is reproduced herein below:--

"2. ?? Repeal of Ordinance VI of 1979. --(1) The Punjab Local, Government Ordinance, 1979 (VI of 1979) (hereinafter called the repealed Ordinance), is hereby repealed.

(2) ??????? On the commencement of this Act, all the members of the. Local Councils shall cease to hold office.

(3) ??????? Nowithstanding the repeal of the repealed Ordinance-- ,

(a) ?? the Local Councils in the Punjab, the Punjab Local Councils Election Authority and the Punjab Local Government Board shall, subject to the order of the Government, be govened, as nearly as may be, in accordance with the repealed Ordinance and the rules, bye-laws made and instructions issued thereunder;

(b) ?? all powers and functions of the Local Councils shall be exercised and performed by such persons or authorities as Government may appoint in this behalf as Administrators in accordance with the repealed Ordinance and the funds and properties belonging to the Local Councils shall vest in Government till a new Local Government Law is enacted; and

(c) ?? any appointments, rules. regulations .or bye-laws made, notification, order or notice issued, tax imposed or assessed shall, so far as not inconsistent with the Act, continue to be in force unless altered or repealed by the Government."

???? 6. ??? The above Constitution Petition No. 36 of 1996 was filed on 30-6-1996, which was followed by the remaining three petitions.

7. It will not be out of context to mention that the Provincial Legislature of Punjab passed The Punjab Local Government Act, 1996 (Act VII of 1996) on 8-7-1996, which was assented to by the Governor of the Punjab on 10-7-1996 and gazetted on 11-7-1996 for restructuring and continuance of local Government institutions.

8.. Mr. Iftikhar Hussain Gilani, learned ASC, has appeared for the petitioners in Constitution Petition No.36 of 1996, Mr. Maqbul Elahi Malik, learned Sr. ASC, has represented the petitioner in Constitution Petition No.39 of 1996, Mr. Ejaz Muhammad Khan, learned AOR has appeared for the petitioners in Constitution Petition No.37 of 1996 and Ch. Akhtar Ali, learned AOR has appeared to represent the petitioner in Constitution Petiton No.38 of 1996. The latter two adopted the arguments of Messrs Iftikhar Hussain Gilani and Maqbul Elahi Malik.

??????????? On the other hand, Mr. K.M.A. Samdani, learned Sr. ASC, has appeared for the respondents in all the above Constitution Petitions.

9. ????????? Mr. Iftikhar Hussain Gilani, learned ASC, has urged as follows:--

(i) ??? That since section 2 of the Repeal Act has not expressly nullified the judgment dated 26-6-1996 of this Court, the above judgment is to be implemented and the members of the local councils are to be restored to complete their term;

(ii) ?? That since there is ambiguity between the provisions of subsections (2) and (3) of section 2 of the Repeal Act, this Court should place construction in such a way which may preserve the aforesaid judgment dated 26-6-1996 of this Court. ,

(iii) ? That since there is a conflict between subsections (2) and (3) of section 2 of the Repeal Act, the latter provision is to prevail over the former.

Mr. Maqbul Elahi Malik, learned Sr.ASC, besides adopting the above arguments of Mr.Iftikhar Hussain Gilani, has contended as under:--

(i) ??? That the Repeal Act is a colourable exercise of the legislative powers inasmuch as the intention was to keep the elected members of the local councils out of office and to defeat the judgment of this Court;

(ii) ??????? That the Repeal Act is violative of Article 32 of the Constitution;

(iii) ? That since the local councils are part of the State, they are to be run by the chosen representatives in terms of Article 2A of the Constitution; and

(iv) ? That the petitioners' right to remain as members of the local councils till the expiry of its original period of five years could not have been taken away.

On the other hand, Mr. K.M.A. Samdani, learned Sr. ASC appearing for the respondents, has submitted as under:--

(i) ??? That sicne subsection (2) of section 2 of the Repeal Act expressly and clearly provides that on the commencement of the same, all the members of the local councils shall cease to hold office, it has nullified the aforesaid judgment dated 26-6-1996 of this Court and, therefore, the same cannot be implemented;

(ii) ?? that since the petitioners have failed to show that the Repeal Act is ultra vires, this Court cannot go into the motive on the part of the Legislature;

(iii) ??????? that there is no ambiguity or inconsistency between subsections (2) ?????? and (3). of section 2 of the Repeal Act; and

(iv) ? That since the petitioners have, not alleged or shown the violation of any Fundamental Rights as envisaged by Article 184(3) of the Constitution, the above Constitution Petitions are misconceived and are liable to be dismissed.

9. Before touching upon the above contentions on merits, we may deal with the above last submission of Mr. K.M.A. Samdani as to the maintainability of the aforementioned Coustitution Petitions. In reply to Mr.Samdani's above submission, Mr.Iftikhar Hussain Gilani has contended that the above Constitution Petitions are maintainable under Article 184(3) read with Article 187 of the Constitution and Order XXX111, Rule 6 of the Rules. Whereas Mi. Maqbul Elahi Malik has urged that the right to participate tit the local councils elections and to be a member thereof, is a political right covered by Article 17 of the Constitution and, in any case,' tile Repeal Act is violative of Article 2A of the Constitution, which inter alia enjoins that the State would be run by the chosen representatives and the local councils, being part of the State, should also be run by the chosen representatives of the people.

10. Mr. Iftikhar Hussain Gilani on Article 187 of the Constitution has referred the following cases:---,

(i) ???????? Haji Ibrahim v. S. Rehmatullah (represented by Legal Heirs) 1985 ?????? SCMR 241;

(ii) ???????? Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359;

(iii) ??????? Muhammad Aslam through his L.R. v. Wazir Muhammad PLD 1985 ?? SC 46; and

(iv) ?????? Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.W.F.P. and another PLD 1995 SC 66.

The above reports do not lay down that an independent proceeding can be initiated under Article 187 of the Constitution but the ratio of the above reports seems to be that once this Court is seized of a lis competently under the relevant law, its power to grant appropriate relief is not controlled by the technicalities of the pleadings or otherwise as clause (1) of Article 187 lays down that subject to clause (2) of Article 175 of the Constitution, the Supreme Court shall have power to issue such directions, orders, or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery of production of any document. We may point out that the key?word employed in the above clause are "in any case or mater pending before it". The above words clearly indicate that the relief referred to in the aforesaid clause can be granted in the case or matter pending before the Supreme Court. It may further be observed that the word "pending" means competently brought before this Court. The provision of Rule 6 of Order XXXIII of the Rules is a hart with above Clause (1) of Article 3217 of the Constitution as it provides that nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of Justice or to prevent abuse of the process of the Court. The above Rule can be pressed into service only in a matter which is competently filed before this Court but it does not give an independent right to initiate proceedings of the nature in question.

10. We are also unable to subscribe to the submission of Mr.Maqbul Elahi Malik tifat proceedings cna be brought under Article 184(3) for the violation of Article 32 read with Article 7 of the Constitution. It may be pertinent to mention that Article 32, which is contained in Chapter II of the Constitution relating to 'Principles of Policy, provides that the State shall encourage local council institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women. Whereas Article 7 gives the definition of the term "State" which inter alia includes local or other authorities in Pakistan as are by law empowered to impose any tax or cess. Since the above Article 32 of the Constitution is not a part of the Chapter containing Fundamental Rights any alleged violation of the same cannot be assailed through Article 184(3).

11. We are also not impressed by Mr. Maqbul Elahi Malik's submission that the Repeal Act is violative of Article 2A of the Constitution as admittedly the same has been passed by the chosen representatives of the people, namely, the members of the Provincial Assembly, who were competent to pass the same under the Constitution.

12. However, the question, whether the above Constitution Petitions can be sustained as they involve, according to the learned counsel for the petitioners, the interpretation of Article 17 of the Constitution, is a debatable question. Subsection (1) of section 21-A of the late Ordinance prohibits contesting of an election of local council by any person by using name, flag, symbol, ticket, platform or support of a political party, but proviso to the same provides that a candidate shall not be disqualified from contesting election by reason only of his being a member or office-bearer of a political party. It was contended that the right to participate in the local councils elections is a political right of the nature covered by Article 17 of the Constitution. On the other hand Mr. Samdani has urged that the above Article has no application.

13. We are not inclined to decide the above question inter alia for the following reasons:=-

(i) That we have heard the parties on merits and we are not inclined to grant the petitions on merits;,

(ii) ?? that the above plea of maintainability apparently was not raised when the above Constitution Petition No-36 of 1996 had come up for hearing before a Bench of this Court headed by the, learned Chief Justice on 28-7-1996 though the respondents were represented by Mr. K.M.A. Samdani;

(iii) ?? that even during the arguments before us the above plea was raised by ?????? Mr. Samdani while concluding his arguments on merits.

14. Adverting to the merits of the case, it may be pertinent to observe that Mr.Iftikhar Hussain Gilani had candidly submitted that he was not challenging the vires of the Repeal Act as he believed in the sovereignty of the Legislature. Even otherwise, it has not been shown that the Provincial Assembly of Punjab was not competent to pass the Repeal Act, nor it has been demonstrated that it is violative of any Constitutional provisions. As regards Mr. Maqbul Elahi Malik's submission that the Repeal Act is a colourable piece of legislation, it may be pertinent to observe that he has not been able to cite any treatise or decided case of any jurisdiction to show that a statute passed by a competent Legislature can be struck down by the Court on the ground that the same was enacted mala fidely or it was a olourable exercise of legislative power. On the contrary, Mr. Samdani has referred to the following cases of foreign and Pakistani jurisdiction:---

(i) ???????? Ex pane William H. McCardle (U.S. Supreme Court Reports 19 Law ? Edition U.S. 74-75 page 264); in which the facts were that a petition for the writ of habeas corpus was filed in the Court below try tire appellant alleging unlawful restraint by the military force. The Court below upon hearing remanded the petitioner to military custody. The appellant filed an appeal before the Supreme Court A motion to dismiss the appear was moved for want of jurisdiction. The Supreme Court of the United States, while upholding the above motion, held that Act of 1867 repealed expressly the jurisdiction of the Supreme Court in the case of habeas corpus. As regards the motive, the following observations were made:--

"We are not at liberty to inquire into the motives of the Legislature. We can only examine into its power under the Constitution;. and the power to make exceptions to the appellate jurisdiction of this Court is given by express words."

(ii) ???????? Piare Dusadh and others v.\ Emperor (AIR (31) 1944 Federal Court 1);

In the above case the facts were that the appellants were convicted by the Courts functioning under the Special Criminal Courts Ordinance (Ordinance 2 of 1942). On 4-6-1943 the Federal Court of India by Majority held. that the Courts constituted under the said Ordinance had not been duly invested with the jurisdiction in view of the nature of the provisions contained in sections 5, 10 and 16 of the said Ordinance. On the next day, the Governor-General made and promulgated another Ordinance (Ordinance 19 of 1943), whereby Ordinance No.2 of 1942 under which the above Courts were constituted, was repealed anti certain provisions were made in respect of sentences which had been passed by the. Special Courts and also pertaining to the cases which were pending before diem on. that day. Right of appeal was also provided before, the High Court. It. certain cases, appeals were filed, in some cases writ petitions were filed and is was contended that the new Ordinance did not and in any event could not give the validity to the sentences which had been passed by the Special Courts. It was claimed that the sentences should be treated as void or set aside without any examination of tfm merits of the cases and that the accused should, if necessary, be directed to be tried by the Ordinary Criminal Courts in due course of law. The various High Courts which dealt with the matter declined to accede to the above contention. Thus the matter was taken up before the Privy Council, which sustained the legality of the above new Ordinance and held that the questions of fairness or policy were not matters which the Court take into consideration when 'the language of the enactments left little or no room for doubt.

(iii) The State v. Zia-ur-Rahman and others PLD 1973 SC 49; in which the judgments of the High Court passed inter alia in the writ petitions were impugned before this Court. The question as to the competency of the Legislature to enact Article 281 of the Constitution providing protection in respect of inter alia acts done or purported to have been done was agitated: In that context, Hamoodur Rahman, J. observed as under:-- '

"On the other hand it is equally important to remember that it is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making particular law if it has made it competently without transgressing the limitations of the Constitution. Again if a law has peen competently and validly made the judiciary cannot refuse to enforce it even if the result of it be to unllify its own decisions. The Legislature has also every right to change, amend or clarify the law if the judiciary has found that the language used by the Legislature conveys an intent different from that which was sought to be covered by it. 'ntc legislature which establishes a particular Court may also, if it so desires, abolish it.' (iv) ????

? (iv) Messrs Mamukanjan Cotton Factory v. The Punjab Province and others - ? PLD 1975 SC 50;

In the above case the facts were that under the West Punjab Cotton (Control) Act, 1949, and the rules framed thereunder, cotton ginning factories were chargeable with cotton fee. However, the expression "factory" as originally defined in the above Act did not include ginning factory run by diesel engine, nevertheless the petitioner in each case was charged cotton fee purporting to be under the said Act notwithstanding above lacuna in the law. The High Court of erstwhile West Pakistan in the case of Hakimuddin v. Chief Cotton Inspector PLD 1960 Lahore 709 declared the above collection of cotton fee as ultra vires the above statute. Thereupon, the Governer of erswhile West Pakistan promulgated West Pakistan Ordinance No.XII of 1961, of which section 2 enlarged the definition of the expression "factory" to include a factory run by diesel engine. After that, by the Punjab Cotton Control (Validation of Levy of Fees) Ordinance, 1971 (Punjab Ordinance XIX of 1971), the aforesaid recoveries made from the petitioners, whose factories were not covered originally by the definition of the expression "factory", were validated. The above validation was unsuccessfully assailed before the High Court and then before this Court. This Court, while maintaining the judgment of the High Court, made following observations:-

-"Mr.A.K. Brohi, appearing in support of these two petitions, frankly conceded, that he did not find it possible to question the vires of the validating Ordinance on the grounds convassed in the High Court. With the permission of this Court, learned counsel, however, attacked the vires of the Ordinance and the resultant action of the Provincial Government on the fresh ground. His argument in untshell was that the validating Ordinance purports to enable the Provincial Government to retain and claim, what according to the judgments of the High Court the Government could not have at the material time levied and collected. These judgments are rendered by the High Court in exercise of its jurisdiction conferred by the Constitution itself. The validating Ordinance on the other hand, is sub-Constitutional legislation, which according to learned counsel cannot undo or destroy, what he described as the "end-product" of the Constitutional jurisdiction.

The argument, in my opinion, is without substance and which if accepted would indeed lead to startling results. It would strike at the very root of the power of Legislature, otherwise competent to legislate on a particular subject, to undertake any remedial or curative legislation after discovery of defect in an existing law as a result of the judgment of a superior Court in exercise of its Constitutional jurisdiction. The argument overlooks the fact, that the remedial or curative legislation is also "the end-product" of Constitutional jurisdiction in the cognate field. The argument if accepted, would also seek to throw into serious disarray the pivotal arrangement in the Constitution regarding the division of sovereign power of the State among its principal organs, name)y, the Executive, the Legislature and the Judiciary, each being the master in its own assigned field under the Constitution."

(v) Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; in which Fauji Foundation came up before this Court through an appeal with the leave of this Court against the judgment of the High Court of Sindh, in which taking over of the respondent's sugar mills under Martial Law Regulation 1013 vas declared as without jurisdiction. The above appeal was allowed by this Court anti the following observations were trade as to the jurisdiction of the Court to enquire into the motives of the legislation after reviewing the case-law inter alia from American and English jurisdictions:

-72. From tire review of case, it becomes abundantly clear that both in America and England, the Courts refrain from exerting an inquiry into motives of the legislation and the same legal position obtains here because of the inherent limitation on the judicial power not to encroach upon the legislative field. If an inquiry involving proof i5 outside its scope then how can a presumption be drawn and that too one of fact such as malice."

(vi) An unreported judgment dated 10-6-1990 of this Court in the case of Haji Ghulam Rasul and others v. The Government of Punjab through Secretary, Auqaf Department, Lahore and otheres.

In the above case relating to the Darbar of Hazrat Data Ganj Bakhsh, which was taken over by the Auqaf Department under section 7 of the West Pakistan Waqf Properties Ordinance, 1959, the matter was brought before this Court by the Mujawaran after having contested before the Courts below against the legality of the above taking over through a notification. The above case was disposed of through the judgment dated 26-4-1971 reported in PLD 1971 SC 376, whereby certain rights of Mujawaran were accepted. However, on 19-7-1971, the Governor of the Punjab promulgated Ordinance No.XVI of 1971. The case was again brought before this Court in the form of Civil Appeal No.29 of 1976. It was contended before this Court by the learned counsel for the appellants that the amendment could not take away the right conferred on them by the above judgment of this Court. The above contention was repelled by this Court as under:--

"The question of retrospective or prospective application of the amending Ordinance does not arise. The rights conferred upon the appellants by the judgment of the Court had been taken away by the Legislature. The appellants cannot on the basis of such judgment claim such right. The appellants had to move- the Chief Administrator under seciton 6(2) for the purpose of such rights and unless such permission is granted, they could not perform any religious ceremony."

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), M/s Mamunkanjan Cotton Factory v. The Punjab Province and others (supra) and Haji Ghulam Rasul 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, mullified the effect of the judgment of the erswhile High Court of West Pakistan rendered in the case of Hakimuddin v. Chief Cotton Inspector (PLD 1960 Lahore 709), wherein it was held that the recovery of the cotton fee from the petitioner's ginning factory was ultra vires the West Punjab Cotton (Control) Act, 1949. This Court upheld the above Validation Ordinance. Whereas in the above second unreported judgment relating to Darbar of Hazrat Data Ganj 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 Mujawaran by the judgment of this Court reported in PLD 1971 SC 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 Repeal Act had taken away the rights of the petitioners to remain as the members of the local councils up to 9-2-1997 conferred by the above judgment of this Court of 26-6-1996. Keeping in view the ratio decidendi of the above judgments of this Court, the Repeal Act cannot be struck down on the above ground.

We may again observe that in fact the vires of the Repeal Act were not assailed before us by Mr.Iffrikhar Hussain Gilani, though . Maqbul Elahi Malik contended that it was colourable exercise of the legislative power and that the same was promoted with ulterior motive to keep the councillors out of office, but this is also not sustainable ground in law as pointed out hereinabove.

16. 1 nts leads us to the submission of Mr.Ifrikhar Hussain Gilani that since section 2 of the Repeal Act has not expressly provided for nullifying the above judgment dated 26-6-1996 of this Court, the same holds the field. No doubt that in above section 2 the words "nothwithstanding the judgment of the Supreme Court or of any other Court" have not been used, but the language employed therein clearly manifests the legislative intent to nullify the above judgment of this Court as to the reinstatement of the members of the local councils for the remaining period expiring on 9-2-1997 by providing in above-quoted subsection (2) of section 2 that the members of the local councils shall cease to hold office. In this view of the matter, the omission to employ non obstante clause in the above section is of no legal consequence. The above provision in fact and in law has nullified the effect of the above judgment of this Court.

????

17. We may now advert to the question, whether there is any ambiguity or conflict in section 2 of the Repeal Act. According to Mr.Iftikhar Husain Gilani, since aforesaid subsection (2) of section 2 of the Repeal Act does not expressly nullify the above judgment of this Court and as it is in conflict with subsection (3) thereof, we should refer to the debate which had taken place in the Punjab Assembly relating to the passing of the Repeal Act. He has invited our attention to the speech of Mr.Syed Zafar Ali Shah, one of the Opposition M.P.A (at page 32 of the Minutes of the Assembly), in which inter alia he asserted that the object of the then proposed Repeal Act was to defeat the above judgment dated 26-6-1996 of this Court. He also referred to the speech of the Senior Provincial Minister of Punjab (at page 47 of the Minutes of the same), wherein he has vehemently denied the above allegation by inter alia stating that:

To reinforce the above submission, he has referred to the treatises on the construction of statutes, namely, Crawford on Statutory Construction--?Interpretation of Law, page 258, Maxwell on the Interpretation of Statutes, Twelfth Edition, page 187 and Craies on Statute Law, Six& Edition at pages 96 to 111, wherein the learned authors have dilated upon the principles of interpretation for resolving ambiguity and conflict in a statute. In this regard, reference may be made to the celebrated case, namely, Heydon's case decided in 1584 referred to in the aforesaid Statute Law by Craies. The relevant exteract from the same reads an under:--

"The most firmly established rules for construing an obscure enactment are those laid down by the Barons of the Exchequer in Heydon's case (1584) 3 Co. Rep. 7-A. See 1 BI. Com. Ed. Hargrave, p.87, note 38), which have been continually cited with approval and acted upon, and are as follows: 'That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1) What was the common law before the making of the Act? (2) What was the mischief and defect for which the comman law did not provide? (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth? (4) The true reason of the remedy. And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico." These rules are still in full force and effect, with the addition that regard must now be had not only to the common law, but also to prior legislation and to the judicial interpretation thereof."

18. It is true that in order to resolve an ambiguity or conflict in a provision of a statute, it is permissible to refer other relevant fact/facts/factors outside the language employed in the statute for ascertaining the intention of the Legislature which will include debate in the Assembly preceding to the pacing of the Act in issue. However, we are of the view that there is neither any ambiguity nor there is any conflict in section 2 of the Repeal Act. We may again observe that subsection (2) of section 2 of the Repeal Act does not admit any ambiguity. It clearly provides that all the members of the local councils shall cease to hold office, nor there is a conflict between subsection (2) and subsection (3) of section 2 of the Repeal Act. Subsection (3) in fact provides saving of the matters which were not to be affected on account of the fact that all the members of the local councils shall cease to hold office under above subsection (2). Mr.Gilani has particularly referred to clause (c) of subsection (3) which lays down that any appointments, rules, regulations or bye-laws made, notification, order or notice issued, tax imposed or assessed shall, so far as not inconsistent with the Repeal Act, continue to be in force unless altered or repealed by the Government. We may observe that the expression "arty appointments" used in sub-clause (c) does not cover elected members of the local councils. They connot be treated as appointees. This refers to the employees of the local councils. Similarly, sub?clauses (a) and (b) kept,the local council as legal entities intact. Their members have been deprived of their membership under subsection (2) till the time new elections take place. Since the local councils remain intact, they were supposed to act in accordance with the repealed Ordinance till the enforcement of new Act i.e. Act VII of 1996 referred to hereinabove.

19. Since we have held that there is no ambiguity or conflict, it is not open to us to nullify the provision of subsection (2) of section 2 of the Repeal Act by referring to the above debate or any other material. In this behalf, it may be pertinent to quote the following extracts from the Crawford on Statutory Construction, Maxwell on The Interpretation of Statutes and Craies on Statute Law:--

Crawford on Statutory Construction, pp.256-257 :

"164. Source of the legislative intent, generally. --Since the Legislature must express its intention by a written statute, that intention, in any instance, must primarily be ascertained from the language used in the statute itself, and not from conjectures aliunde. In other words, before the Court can resort to any other source for assistance, it must first seek to find the legislative intention from the words, phrases and sentences which make up the statute subject to construction. If the meaning of the language of the statute is plain, then according to the rule announced in enumerable cases, there is really no need for construction as the legislative intention is revealed by the apparent meaning, that is the meaning clearly expressed by the language of the statute. In this case, the statute is given a literal interpretation. It is interpreted to mean exactly what it says. Only where the statute is of doubtful meaning can the Court endeavour to determine the legislative intention from elements beyond the language of the statute."

Maxwell on the Intemretation of Statutes, naves 28 and 29 :

"The rule of contruction is 'to intend the Legislature-to have meant what they have actually expressed.' Ube object of alt interpretation is to discover the intention of Parliament, `but the intention of Parliament must be deduced from the language used,' for ' it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law'.

Where the language is plain and admits of but one meaning the task of interpretation can hardly be said to arise. 'The decision in this case,' said Lord Moris of Borth-y-Gest in a revenue case, 'calls for a full and fair application of particular statutory language to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision'. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary -to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the Court as to what is just and expedient: words. are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the Court is to expound the law as it stands, and to "leave the remedy (if one be resolved upon) to others'."

Craies on Statute Law, page 66 : .

" Construction according to intention. --The cardinal rule for the constructioin of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. 'The Tribunal that has to construe an Act of a Legislature or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these word`, it is natural to inquire what is the subject-matter with respect to which they are used and the object in view.' In Barnes v. Jarvis Lord Goddard, C.J. said- ' A certain amount of common sense must be applied in constring statutes. The object of the Act has to be considered'. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver.

Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature."

20. From the above celebrated treatises on the construction of statutes, it is patent that the primary source to ascertain the legislative intent is the laguage employed in the statute itself. If the legislative intent is clear, plain, unequivocal and capable of only one meaning, it is not permissible to have resort to the materials aliunde i.e. outside the statute involved. In such a case, the Couri cannot decline to enforce a provision of a statute on the ground that it is harsh, or absurd, or contrary to common sense. The Court must give effect to it whatever may be the consequences.

However, if the language of a provision of a statute is ambiguous or is capable of having more than one meaning, the Court is to make efforts to ascertain the legislative intent by resorting to the material outside the statute e.g. in Heydon's case (supra) decided in 1584, it was held that four things were to be discerned and considered, namely, (i) what was the Common Law before the making of the Act; (ii) what was the mischief and defect, which the Common Law did not provide; (iii) what remedy the Parliament hath resolved and appointed to cure the disease; (iv) the true reason of the remedy. It may be observed that Craies in his above treatise has added that beside Common Law, the prior legislation, if any, on the subject would also be relevant. We may mention that with the passage of several centuries after the decision of Heydon's case, the rules of interpretation of statutes also progressed and developed inasmuch as not only the old rules of interpretation have been improved upon, but the Courts have evolved and propounded new rules. In case of ambiguity in a statute, reference can also be made inter alia to the debates which took place in the Assembly preceding to the passing of the statute concerned. Since in our view the language of section 2 of the Repeal Act is neither ambiguous nor there is any_ conflict therein as held by us hereinabove, the rules of interpretation referred to hereinabove in sub-para. (1) are applicable and not the rules mentioned in above sub-para. (2) to the case in hand. In this view of the matter, the above petitions merit dismissal.

However, before concluding the above discussion, we may observe that the local councils are the first tier of the democtatic process and since generally they perform municipal functions, the general public is vitally interested in their' existence and performance. They are sine qua non for strengthening the democratic process. They are the training ground for future political leaders of the national stature. We feel that the people have been denied said institutions for quite long period i.e. since August, 1993, the various dates fixed for their elections during the last about three years on one ground or the other were not honoured. It is hoped that the same are held without any further delay.

??????????? With the above observations, the petitions are dismissed with no order as to costs.

M.B.A./Z-220/S ????????????????????????????????????????????????????????? Petitions dismissed.