HAMZO KHAN Versus GOVERNMENT OF SINDH

AJMAL MIAN, C.J: The petitioner by this petition has prayed the following relief:

"It is therefore prayed that this Hon'ble Court may be pleased to declare the Notification dated 8‑4‑1989 issued by the Respondent No.1 as illegal, incompetent, without lawful 1authority and in contravention of the mandatory provisions of law and the District Council Thatta may be restored to its original status and further order declaration that the petitioner is‑ continuing to act as Chairman of the District Council Thatta and restrain the Respondents Nos.1 and 3 from holding the Election of District Council Thatta and grant any other relief as deemed fit in the circumstances."

The brief facts leading to the filing of the above petition are that the petitioner, after contesting the election of the Distt. Council Thatta held on 30th November, 1987, was elected as its member. After that he was elected as the Chairman though he was opposed by Syed Shafqat Hussain Shah Shirazi. It seems that on 28th March, 1989 a meeting of the Council was in progress which, started at 12 noon and which according to the averment in the petition, 45 members out of a total strength of 65 members, attended. It has been alleged that at the start of the meeting Syed Shafqat Hussain Shah Shirazi moved an application on certain issues relating to misuse of funds in Flood Relief which was not allowed by the petitioner as the Chairman being out of the Agends of the meeting. It also alleged that upon aforesaid refusal the Shah Group got agitated and exchanged abuses and defamatory language. It is further alleged that the Shah Group lodged an attack on the petitioner and then his followers came inside the meeting hall with sophisticated weapons and fired indiscriminately, resulting in the killing of two members, namely, Syed Abdul Sattar and Syed Sikandar Shah. The above matter has been reported through F.I.R., lodged by Syed Ghulam Akram Shah brother of Syed Abdul Sattar. The above F.I.R. has been registered against the petitioner and some of the members of the Council. In pursuance whereof according to the learned Advocate‑General, Sindh, 8 persons were arrested. Be that as it may, the respondent No.1 by the impugned Notification dated 8th April, 1989, issued in purported exercise of powers under subsection (2) of Section 51 of the Sindh Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance) superseded the District Council Thatta with immediate effect for a period of six months and appointed one Mr. Abid Sheikh, Deputy Commissioner Thatta as the Administrator in terms of provision of clause (b) of subsection (2) of section 58.

The petitioner being aggrieved by the above order has filed the present petition.

2. In support of the above petition, Mr. Khalid M. Ishaque, Advocate assisted by Mr. Abdul Rasool Umer, Advocate has urged as follows:‑

(1) ??????? that the alleged misconduct on the part of some of the members of the District Council could not have furnished a ground for the dissolution of the Council as a whole;

‑(2) ????? that the ingredients of subsection (10) of section 51 of the Ordinance were not present in order to press into service subsection (12) of section 5? and, therefore, the order is patently without jurisdiction; and

(3) ??????? that the action could not have been taken without holding an inquiry and without providing opportunity to the affected persons.

On the other hand Mr. Abdul Hafeez Lakho, learned A.‑G. Sindh has contended as under:‑

(1) ??????? That though in the impugned order reference has been made to subsection (2) of section 51 but factually it is a reference to subsection (12) of section 51,

(2) ??????? That since the action was to be taken forthwith and as there was sufficient material before the respondent No.1 the enquiry was not required to be held either under section 51 or section 58 of the Ordinance,

(3) ??????? That though there is no reference to subsection (1) of section 58 of the Ordinance in the impugned order but the ingredients of above subsection (1) of section 58 were very much present in the instant case and, therefore, omission to refer to above subsection would not debar the respondent to rely upon the above subsection (1) of Section 58 for defending the impugned order, and

(4) ??????? That in any case the facts of the instant case are such that they do not warrant exercise of constitutional juridiction which is a discretionary jurisdiction even if it is to be held that' the impugned order was not in terms of the provisions of the Ordinance.

3‑ ???????? The basic question involved in the present case is that whether the impugned order can be sustained either under subsection (12) of section 51 of subsection (1) of section 58 of the Ordinance. Before dealing with the above point, we may reproduce the impugned order which reads as under:‑

"No. SOV/DC‑VII (27)/88. Whereas the District Council, Thatta in its ordinary meeting held on 28th March, 1989 discussed an item of the agenda relating to the grant‑in‑aid to flood‑affected persons;

(2) ??????? And whereas during the above council discussion members of two rival groups started abusing each other, freely used indecent, obscene and scurrilous language in order to create/excite feelings of enmity and hatred between different sections of the citizens resulting in scuffle which ultimately ended in firing with lethal automatic weapons within council hall causing death of two members namely Syed Abdul Sattar Shah and Syed Sikandar Shah;

(3) ??????? And whereas by acting in the above manner the District Council, Thatta has acted in contravention of the provisions of clause (b) and (c) of subsection, 10 of section 51 of the Sindh Local Govt. Ordinance, 1979;

(4) ??????? Now, therefore, the Government of Sindh in exercise of the powers vested in them under subsection (2) of Section 51 of Sindh Local Government Ordinance, 1979 are pleased to hereby order supersession of the District Council, Thatta with immediate effect for a period of six months;

(5) ??????? The Government of Sindh under the provisions of clause (b) of subsection (2) of Section 58 of Sindh Local Government Ordinance, 1979 are further pleased to appoint Mr. Abid Shaikh, Deputy Commissioner, Thatta as Administrator, District Council, Thatta to perform the functions of the District Council, Thatta until the Council is reconstituted under subsection (3) of section 58 of the Sindh Local Government Ordinance, 1979."

A perusal of the above order indicates that in sub‑para. (2) the language employed is that of clause (b) of subsection (10) of section 51. It may also be noted that in para. (3) reference has been made to the contravention of provisions of clauses (b) and (c) of subsection (10) of section 51, whereas under para (4), the action has been taken in purported exercise of powers under subsection (2) of section 51.

4. ???????? We are inclined to agree with Mr. Abdul Hafeez Lakho, the learned A.?G. that reference to subsection (2) of section 51 in para. (4) of the impugned order is in fact reference to subsection (12) of section 51 as contravention of the subsection (10) of section 51 entails taking of action under above subsection (12).

The question, which requires consideration, is as to whether there has been any contravention of clauses (b) and (c) of above subsection (10) as to justify taking of action under subsection (12) of section 51. It may be observed that subsection(10) prohibits Council members from taking any of the actions referred to in its sub‑clauses (a) to (e) which read as under:?

(a) "undermine the ideology, security, integrity or solidarity of Pakistan;

(b) seek to create or excite feelings of enmity, ill‑will, or hatred between different communities, sects, classes or sections of the citizens;

???????????

(c) contain any indecent, obscene, scurrilous or ironical expressions or defamatory remarks against or seek to defame any person;

(d) relate to any matter basically not relevant to or beyond the scope of this Ordinance; and

(e) tend directly or indirectly to bring into hatred or contempt the Government established by law."

Whereas subsection (12) of section 51 provides that a Council, which passes a resolution or acts in contravention of provisions of subsection (10) may forthwith be superseded for a period not exceeding six months and on such supersession the provisions of subsection (2) and subsection (3) of section 58 shall apply. In our view, in order to attract the application of above subsection (12) of section 51, it is incumbent to show that the Council as a whole has passed a resolution or has acted in contravention of provisions of subsection (10). If one or two or more members contravene above subsection (10) action is to be taken under subsection (11) of the said section 51, which empowers the Govt to 00disqualify through a Notification such member or members even without hearing them subject to his/their right to make representation within 60 days of the Notification.

It is true that unfortunate incident had taken place in the council hall on28th March, 1989, resulting into killing of two innocent persons, but this fact simpliciter would not furnish a ground to dissolve the Council as a whole. F.I.R. has already been registered against the alleged accused persons including the petitioner. The respondent No.l could initiate individual action against the petitioner and the other members of the Council, who were allegedly involved in the incident but in our view the action of dissolution of the Council cannot be sustained in the absence of any material that the Council has acted in contravention of subsection (10) of section 51. It has been vehemently contended by Mr. Abdul Hafeez Lakho, the learned A.G. Sindh that according to the petitioner's own averments in the petition the Council has not been working smoothly from the very inception inasmuch as there has been law and order problems. It will suffice to observe that even if the respondent No.1 was of the view that the Council could not function, the proper course would have been to hold an enquiry in terms of subsection (1) of section 58 and after providing opportunity to the affected persons to take action in accordance with law but to supersede the Council as a whole after the lapse of hardly about 1‑1/2 years from the date of election and without holding any enquiry and without hearing the Council is not warranted by the facts of the present case.

5. Reverting to Mr. Abdul Hafeez Lakho's contention that under section 51 or section 58 the enquiry is not required, it may be observed that he has referred to the word "forthwith" used in subsection (12) of section 51 in order to contend that no enquiry is required to be conducted before taking any action. Since we have held that there is no material on record to conclude that the Council has passed a resolution or has acted in contravention of provisions of subsection (10) of section 51 in our view it is not necessary to go into the question, whether the enquiry was required before taking any action under subsection (12) of section 51.

6. As regards Mr. Abdul Hafeez Lakho's submission that though in the instant case in the impugned order reference to subsection (1) of section 58 has not been made but the ingredients of the above subsection were very much present and, therefore, respondent No.l was justified in passing the impugned order, it may be advantageous to reproduce subsection (1) of section 58, which reads as under:‑‑

"(1) ????? If, after such enquiry as may be necessary, Government is of the opinion that a council‑‑

(a) ??????? is unable to discharge or persistently fails in discharging its duties; or

(b) ??????? is unable to administer its affairs or meet its financial obligations; or

(c) ??????? otherwise exceeds or abuses its powers.

It may, after considering the objections from the council, by notification in the official Gazette, declare the council, to be superseded for a period not exceeding six months."

In our view, the above‑quoted proviso to above subsection (1) of section 58 clearly indicates that before taking an action under section 58, an enquiry is to be held as the above proviso provides that "after considering the objections from the council". Even if we were to agree with the learned Advocate‑General that the ingredients of subsection (1) of section 58 were present in the instant case in our view the Council was entitled to have an opportunity to meet the allegations that it is unable to discharge or has persistently failed to discharge its duties or that it is unable to administer its affairs or meet its financial obligations or otherwise has exceeded or abused its powers. Action under section 58 cannot be taken for dissolution of a Council in the absence of holding of an enquiry on the above questions and an enquiry cannot be held without providing an opportunity to the Council. Since no enquiry was conducted under' section 58, the factum that the ingredients of subsection (1) of section 58 were present would not warrant taking of the impugned action. We may observe that if in fact the ingredients of subsection (1) of section 58 are present in the instant case, it is still open to, respondent No.1 to issue a show‑cause notice to the Council and after holding an enquiry and after hearing the Council, it can take action in accordance with law but the impugned order cannot be defended on the above ground.

7. This leads us to the last submission of Mr. Abdul Hafeez Lakho, learned A‑G. Sindh that the exercise of constitutional jurisdiction is a discretionary jurisdiction and that the superior Courts in fit cases have declined to press into service their constitutional jurisdiction even in cases where the impugned actions or orders were illegal or void as the declaration of the orders or actions as illegal, would have perpetuated injustice instead of fostering the cause of justice. The reliance has been placed in support of the above submission on the the following cases:‑‑

(1) Afzal Hussain and others v. Ghulam Muhammad and others 1986 S C M R 783, relevant page 784:

(2) Rehmatullah and others v. Mst. Hameeda Begum and others 1986 S C M R 1561 relevant page 1565;

(3) S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and others 1978 S C M R 367, relevant page 372.

(4) Segum Shams‑un‑Nisz v. Said Akbar Abbasi and another P L D 1982 SC 413, relevant page 423:

(5) Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 SC 236, relevant pages 258, 259 and 261‑G.

The proposition of law profounded in the above‑cited cases is by now well‑settled. There cannot be any cavil with the proposition that a High Court is not obliged to press into service its constitutional jurisdiction in every case in which illegal/void action or order is impugned. The Court is to see, whether the ' grant of relief prayed for will foster the cause of justice or will it perpetuate injustice. If the Court finds that in a given case though the action taken by the If authority is illegal but setting aside of such an illegal action would result into miscarriage of justice instead of advancing the cause of justice, the Court may decline to press into service its constitutional jurisdiction. The recent judgment of the Honourable Supreme Court in the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others P L D 1989 SC 166, reiterates the above proposition of law inasmuch as the Supreme Court after having concluded that the dissolution of the National Assembly was illegal declined to restore the dissolved National Assembly.

The basic question, which requires consideration in the present case, is whether this Court by declaring the impugned order as without lawful authority would perpetuate any injustice as to attract the application of the ratio decidendi of the above‑cited cases relied upon by Mr. Abdul Hafeez Lakho, the learned A‑G. We are unable to pursuade ourselves to subscribe to the view that citing aside of the impugned order by this Court would perpetuate any injustice or it would perpetuate any illegal action/order. On the contrary countenance to the impugned order on our part will contribute towards de‑stabilization of the democratic process in our country. The District Councils etc. are grass‑root of the democratic fibre of our country and any in‑roads on account of expediency or other similar reason would aversely affect democracy as a whole. ??????

8. The upshot of the above discussion is that the petition is allowed with no order as to costs and the impugned order is declared as being without lawful authority and of no legal effect and the District Council Thatta stands restored. The respondents are restrained from acting upon the impugned order or in pursuance thereof. l

However, we may clarify that if an action is to be taken under subsection (1) of section 58 or even under subsection (12) of section 51, respondent No.1 are j at liberty to initiate fresh action in accordance with law.

AA/"‑198/K ???????????????????????????????????????????????????????????????????????????? ??????????? Petition accepted,