Himayatullah Mayar etc District Nazim Mardan vs C.M. KPK€¦ · in violation of codal formalities....

Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan)

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT

Writ Petition No.1802 -P/2016

JUDGMENT

Date of hearing: 24th May, 2016

Petitioner(Himayatullah Mayar: By: Mr.Khalid Mahmood, District Nazim Mardan etc) advocate,

Respondent(Chief Minister : By: Mr.Abdul Latif Yousafzai, KPK & 5 others) Advocate General KPK.

___________

NISAR HUSSAIN KHAN, J.- Petitioners through

instant constitutional petition seek declaration of Notification

No.DG(LG)RD/LGC/2016, dated 6.5.2016, vide which they were

suspended for 30 days for not passing the budget by simple

majority of total memberships of District Council Mardan, as

illegal, malafide, based on political victimization and

colourable exercise of power and as such passed without

lawful authority.

2. It is averred in the petition that petitioners are

District Nazim and Naib Nazim of District Council Mardan,


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respectively, who were elected in the Local Government

Elections on the tickets of two different political parties; that

after assumption of their office, salary budget was

unanimously passed on 22.10.2015 by the District Council

Mardan and in continuation, Annual Development Programme

(ADP) Budget was passed on 10.12.2015 by simple majority of

59 members out of total membership of 112. It was followed by

another salary and non-salary budget of District Council Staff

which was unanimously approved by District Council on

15.1.2016; that proceedings of approval of ADP budget of

2015-16 was subsequently approved on 25.1.2016 by majority

members of the District Council; that in the light of approved

budget, majority of the members from treasury and opposition

benches, submitted their proposed schemes of projects

through identification forms; that District Council approved all

the guidelines in the light of ADP Budget in its meeting held on

3.5.2016. By recapitulating all these proceedings, petitioners

averred that the impugned notification was issued for political

victimization and ulterior motives, in colourable exercise of

authority. To substantiate their contention, proceedings of the

meetings and attendance roll of the meeting of salary budget


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and ADP budget were also annexed alongwith record

culminating into issuance of impugned notification.

3. The learned Advocate General submitted

comments on behalf of the respondents. Though they forfeited

their right of submission of reply/comments on the very first

day when the instant petition was heard in motion. However,

during the course of arguments on 12.5.2016, learned AG

referred different documents which were not made part of the

record, hence he was allowed to bring the same on the file

through proper C.M. Accordingly comments alongwith

complete record has been submitted wherein stance of the

petitioners has emphatically been repudiated.

4. Learned counsel for petitioners argued that

ADP budget was passed with simple majority of total

membership of the District Council, Mardan; that even if

respondent’s stance is accepted, it may not be a ground for

suspension of the petitioners; that minutes of the meeting

were maintained by the secretary of the Council which are

public documents, supporting the stance of the petitioners. He

maintained that malafide of the respondents is palpable from


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the simple fact that both Nazim and Naib Nazim of District

Council Mardan have simultaneously been suspended which

is against the mandate of law, hence the impugned Notification

is liable to be struck down.

5. As against that learned Advocate General while

responding to the arguments of the learned counsel for

petitioners, has taken us through the detail comments and the

record appended therewith. He raised objection that Chief

Minister is not answerable to any court in terms of Article 248

of the Constitution of Islamic Republic of Pakistan, 1973, who

has wrongly been impleaded in the instant petition as

respondent No.1, hence instant petition is defective and is

liable to be dismissed. He by referring to the record submitted

that 40 members and Secretary of the District Council Mardan ,

moved complaint about irregularities committed in the

approval of ADP budget which was not passed by a simple

majority, hence is in violation of section-35 (b) of Act-XXVIII.

Therefore, three members committee was constituted who

reported after exhaustive enquiry that the ADP budget was

not passed with simple majority because 5 out of 60 members

have disowned their signatures on attendance roll which were


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to be referred to the hand writing expert for verification, so it

reduced the strength of consenting members to 55, which do

not constitute simple majority. On the basis of said enquiry

report and recommendation for suspension of petitioners, the

impugned Notification was accordingly issued by the Local

Government Commission, which is its sole discretion; that

since prima facie case against petitioners, was made out in the

light of enquiry report, so they were rightly suspended, hence

instant petition is liable to dismissed.

6. We have heard learned counsel for petitioners

and learned Advocate General KPK and have gone through the

record with their valuable assistance.

7. So far as objection of learned Advocate

General KPK relating to immunity available to the Chief

Minister in terms of Article 248 of the Constitution is

concerned, suffice it to observe that Chief Minister is not the

only respondent in the petition. Rather there are five other

public functionaries in panel of respondents whose action and

commissions have been called in question. The impugned

Notification has not been issued by the Chief Minister. It was


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issued by the Local Government Commission, the respondent

No.2. Even if Chief Minister is deleted from the panel of

respondents, instant petition still may proceed. There is no

cavil about the established law that Code of Civil Procedure

1908 is applicable to all the proceedings, relating to the

Constitutional petitions filed under Article 199 of the

Constitution. Order-1 Rule 9 CPC stipulates in unequivocal

terms that no suit shall be defeated by reason of mis-joinder or

non-joinder of the parties and the court may proceed with the

matter in controversy so far as regards the rights and interests

of the parties, actually before it. It follows that mere mis-

joinder of the Chief Minister in the panel of respondents would

not defeat the very merits of the instant petition.

8. We have been called upon to examine the

legality of the impugned Notification No. DG(LG)RD/LGC/2016,

dated 6th May, 2016, issued by the Local Government

Commission KPK, purportedly in exercise of power conferred

by Section 55 of the Khyber Pakhtunkhwa, Local Government

Act, 2013, vide which petitioners who are Nazim and Naib

Nazim of District Government Mardan, have been suspended

for a period of 30 days, on account of not passing the


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budget with simple majority of total membership of District

Council, Mardan, for the year 2015-16. KPK Local Government

Act, 2013 has been enacted in compliance with Article 37(i) of

the Constitution of Islamic Republic of Pakistan, 1973, for

decentralization of the government administration as a

principle of policy, to facilitate expeditious disposal of its

business to meet the convenience and requirements of the

public. Whereas Article 140-A of the Constitution of Islamic

Republic of Pakistan, 1973, inserted through 18th

Constitutional Amendment, 2010, enjoins that each province

shall by law, establish a Local Government system and

devolve political administration and financial responsibility

and authority to the elected representatives of the local

government, election of which shall be held by the Election

Commission of Pakistan. Pursuant to the Constitutional

command, local government elections were held in the

province in 2015 and petitioners No.1 & 2 were elected as

District Nazim and Naib Nazim of District Council, Mardan,

respectively. It is undisputed that the house of District Council

Mardan consists of 112 members and petitioners were elected

by the house, by majority of votes. After assumption of office,


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as per petitioners’ contention, petitioner No.1 tabled the salary

budget which was unanimously passed and petitioners’ this

stance is not repudiated. What allegedly, irked the Provincial

Government was the Annual Development Programme Budget,

which, according to respondents, was not passed by simple

majority as per requirement of Section 35(2) of Act No.XXVII of

2013. The District Naib Nazim/Convenor of District Council

Mardan summoned a meeting of District Council Mardan for

7th, 9th and 10th December, 2015 at 10.00 A.M. at Salateen Shadi

Hall, Sugar Mills, Bypass Road, Mardan, vide office circular

No. 535-670/DNN(M), dated 1.12.2015. The Agenda of the

meeting was “Recitation of Holy Quraan” followed by

presentation of budget for the year 2015-16 by District Nazim

on 7th December. Debate, suggestion and approval of the

Budget was to be carried out on 9th and 10th of December,

2015. The attendance roll alongwith a circular of the meeting,

Annexure-C of the writ petition shows presence of 60

members on 10th of December, 2015, the date of approval of

the budget, as the relevant column contains signatures of

those members and by relying on the copy of the attendance

roll, it is urged by the petitioners that budget was rightly


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passed with the simple majority which requires presence of 57

Members and the same was duly approved on 10th December,

2015 by show of hands by 59 members and then the Session

of the District Council was prorogued.

9. Respondents with their comments have

annexed copy of letter No.6518-DC(M)/PS, dated 10.12.2015

addressed to the Naib Nazim, District Council Mardan by

Deputy Commissioner Mardan with reference to a letter of

Assistant Director/Secretary District Council Mardan of even

date, alongwith complaint of 40 District Councillors about

approval of the budget of District Council Mardan without

assent of simple majority of total members of District Council,

in violation of codal formalities. He was requested to

intervene, being the representative of the Provincial

Government. The District Naib Nazim was asked to take

remedial measures if the complaint so made by the Members

is genuine. On the same date, Special Situation Report of

budget proceedings was also submitted to the Deputy

Commissioner by the Assistant Director, Local Government

and Rural Development Department as Ex-Officio Secretary of

the District Council Mardan, stating that at the time of budget


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approval, total attendance of members of all the parties was

36-38 and no show of hands nor any counting of the members

was carried out. On 11.12.2015, the Director General, Local

Government and Rural Development Department addressed a

letter to two MPAs, two Secretaries of KPK Government and

two others for Special Meeting of Local Government

Commission to be held on 15th December, 2015. Agenda of the

meeting, in addition to other items, was the budget

proceedings of District Council Mardan. In the meanwhile,

District Naib Nazim responded to the Deputy Commissioner

with reference to his letter dated 10.12.2015, explaining the

position that 68 members were present in the Session. The

approval of the budget was solicited, on which 59 members

accorded approval by show of hands of the budget for the year

2015-16 and Session was prorogued at 10.15 A.M. whereas

Special Situation Report submitted by Assistant Director Local

Government and Rural Development an Ex-officio Secretary of

the local Government of 10.12.2015 is incorrect and baseless.

He further explained that the Secretary himself was absent

from the Session who arrived at 11.00 A.M. when the budget

had already been approved.


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10. The Director General Local Government and

Rural Development Department addressed a letter to the

Commissioner Mardan Division to inform that three members

of Local Government Commission will proceed to Mardan

Commissioner Office to hold enquiry relating to budget

proceedings, adopted by the District Council, Mardan on

21.12.2015. It was followed by an enquiry report of the said

Committee, in which after recapitulating the respective stance

of both the sides, it recorded its findings; that total strength of

Membership of District Council Mardan is 112 while approval

of the budget was accorded by 60 members, though the

requirement was of 57; that, 5 out of 60 members have

disowned their signature which reduces the number of

members, who accorded approval, to 55 which is not a simple

majority as required under Section 35(2) of the Local

Government Act, 2013; that attendance sheet was in custody

of Naib Nazim instead of Secretary District Council which is

an anomaly, thus the whole proceedings of passing of the

budget stands infructuous because of deficiency of required

number of councillors at the time of its approval. After

recording these findings, the Committee recommended that


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since Nazim, District Council Mardan has failed to get the

budget approved as per requirement of the Act, so 20% of the

members of the District Council should place the requisition

before the District Council asking the Nazim and Naib Nazim to

seek fresh vote of confidence. It was secondly recommended

that since 5 signatories have disowned their signatures on the

attendance roll of the budget session, therefore, their

signatures be sent to the Forensic Science Laboratory for

verification; and thirdly in the meantime formal enquiry be

initiated and Nazim as well as Naib Nazim be suspended for

30 days. The findings and recommendations of the enquiry

committee were signed by two members while third one

recorded his dissenting note by disagreeing with the

recommendations of suspension of Nazim and Naib Nazim, till

verification of the signatures of those councillors from the FSL

who disowned their signatures. He also recommended that

Nazim may again get the budget approved from the District

council as per laid down procedure. The respondents have

also annexed proceedings of the District Council meetings of

7th, 9th and 10th of December,2015 at Page-79 to 84 consisting

of 5 sheets being the attendance roll of all the members.


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Presence of 60 members has been marked on 10th December,

2015, the date of passing of ADP budget by their signatures in

the respective columns, which strength some how coincides

and tally with the documents annexed with the petition.

However, it is the stance of the respondents that 5 out of 60

members have disowned their signatures. Their stance was

yet to be substantiated after verification of F.S.L.

11. Both sides are at variance about the record

of Budget proceedings, therefore, we would not like to

enter into inter se comparison of these documents, on

account of, it being the realm of factual controversy, which

is not the domain of this court while exercising its

Constitutional jurisdiction, under Article 199 of the

Constitution. What we are concerned with, is the legality

and propriety of the impugned Notification. The notification

has been issued under section 55 of the Act No.-XXVIII of

2013 which empowers the Local Government Commission

to recommend to the Chief Minister for suspension of

Nazim, Naib Nazim or a member of local council, as the case

may be, for maximum period of 30 days. Before examining

the authority of the Commission, it would be apt to dilate


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upon its composition which is provided under Section 54 of

the ibid Act which runs as follows:-

“54. Local Government Commission.---

(1) Government shall appoint a Local Government

Commission, which shall consist of –

(a) Minister for Local Government, Elections and Rural

Development Department, who shall be the Chairman of

the Local Government Commission;

(b) Two members of the Provincial Assembly, one each

nominated by the Chief Minister and Leader of

Opposition in the Provincial Assembly;

(c) Two eminently qualified and experienced

technocrats including a woman selected by Government

for a period of three years;

(d) Secretary to Government, Law, Parliamentary Affairs

and Human Rights Department; and

(e) Secretary to Government Local Government,

Elections and Rural Development Department.

(2). The Local Government Commission may, for any

specific assignment, co-opt any other person as

member; provided that, when it is seized with an inquiry

against a Nazim, it shall be mandatory for the Local

Government Commission to co-opt a disinterested

Nazim, district council as member.

(3) Government shall provide separate budget for the

Local Government Commission with Director General,

Local Government and Rural Development as Principal

accounting Officer, who shall provide secretarial

support and render assistance to the Local Government

Commission.

(4). No act or proceedings of the Local

Government Commission shall be invalid by reason or

existence of any vacancy, or defect, in its constitution.”


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12. It is apparent from the above provision of law

that beside Minister of Local Government, two members of the

Provincial Assembly, one each nominated by the Chief

Minister and leader of the opposition, two eminently qualified

and experienced technocrats including a woman selected by

the Government for a period of 3 years, Secretary to

Government, Law, Parliamentary affairs and Human Rights

Department and secretary to Government, Local Government

Elections and Rural Development Department, would

constitute the Local Government Commission. Minister and

Secretaries would be ex-officio members of the Commission

but two members of the provincial assembly and two

eminently qualified and experienced technocrats as provided

under Section 54(1) (b) & (c) are required to be notified for

composition and completion of the Local Government

Commission. There is nothing on the record to substantiate

that which two members of the Provincial Assembly each one

of the Treasury and opposition benches and two eminently

qualified technocrats were ever notified. It follows that no

Local Government Commission was duly appointed by the

government as per requirement of Section 54 of the ibid Act.


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More particularly when commission is seized with an enquiry

against a Nazim, it was mandatory to co-opt a dis-interested

Nazim, District Council as member. This mandatory provision

has also not been adhered to.

13. Functions and authority of the Local

Government Commission are enumerated in Section 55 of the

Act. While sub-section (2) of section 55 of the Act is relevant to

the issue in hand, which is reproduced as follows:-

“55.Functions of the Local Government Commission.---

(1)…xxxxxxxxxxxxxx

(2). Where the Local Government Commission is of the

opinion that suspension of a Nazim, Naib Nazim or a

member of a local council is necessary for the purposes

of a fair enquiry or preventing him from continuing with

any unlawful activity during an enquiry, it may

recommend to the Chief Minister for suspension of such

Nazim, Naib Nazim or a member of a local council, as the

case may be, for a maximum period of thirty days.”

14. Bare reading of Sub Section (2) of Section 55

transpires that Local Government Commission has not been

vested with unfettered powers for recommendation of

suspension of Nazim, Naib Nazim or a member of local council

to the Chief Minister, according to their whims. Rather powers

of recommendation are conditioned with two requirements;


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firstly when suspension is necessary for the “purpose of fair

enquiry” and secondly for “preventing Nazim and Naib Nazim,

or a member, from continuing with any unlawful activity

during the enquiry”. If any one condition, enumerated in the

sub-section is attracted, Nazim or Naib Nazim may be

recommended for suspension. Before making any such

recommendation, the Commission is required to assign the

reasons that how a fair enquiry cannot be carried out, during

the holding of his office and in case of second condition, the

Commission is required to explain the unlawful activities of

the Nazim, Naib Nazim or a member for their suspension which

are required to be curtailed. Since it is a serious step to be

taken, against an elected representative, which some how is to

affect his political career, therefore, is required to be strictly

construed and to be stricto senso applied, in letter and spirit

within the parameters of law. The proposed suspension is

tantamount to a penal action against them. It is cardinal

principle of transparency, fairness, equity and justice that

penal provisions are to be construed very strictly. No liberal

construction or interpretation can be undertaken. When

impugned notification is considered at the touchstone of


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relevant provision under which it has been issued, it does not

qualify the test of legal sanctity and reasonableness which for

better appraisal of its contents is reproduced in extenso as

follows:-

“OFFICE OF THE DIRECTOR GENERAL LOCAL GOVERNMENT & RURAL DEVELOPMENT

DEPARTMENT KHYBER PAKHTUNKHWA

(LOCAL GOVERNMENT COMMISSION)

N O T I F I C A T I O N

Dated Peshawar, the 6th May, 2016

No.DG(LG)RD/LGC/2016.- In exercise of the powers conferred

by section: 55 of the Khyber Pakhtunkhwa, Local

Government Act, 2013 , the competent Authority, on

recommendation of Local Government Commission, has

been pleased to order the suspension of Mr.Himayatullah

Mayar Nazim and Mr.Asad Ali Naib Nazim, District

Government Mardan, for a period of 30-days by not passing

of budget with simple majority of total membership of District

Government, Mardan, for the year 2015-16, with immediate

effect, in public interest.

Sd/- Local Government Commission Khyber Pakhtunkhwa”

15. Bare perusal of the Notification transpires that

it suffers from number of legal infirmities and procedural

deficiencies. Firstly it does not contain any reason as enjoined

by Section 55(2) of the ibid Act, explaining the necessity of

suspension for fair enquiry or preventing the petitioners from

continuing with any unlawful activity, as to how they are going


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to hinder the fair enquiry or which are their unlawful activities

which are to be curtailed. In absence of any reason, it does

not qualify the test of section 55(2) of the ibid Act, under which

the same has been issued, hence it can safely be concluded

that the impugned action has not been taken in accordance

with law.

16. The Local Government Commission, can only

recommend the suspension of Nazim or Naib Nazim or a

member of the local council to the Chief Minister. It cannot

itself pass suspension order. Nevertheless, impugned

notification has been issued by the Local Government

Commission, which is an another illegality that cannot be

countenanced by any principle of interpretation or rule of

administration. Moreso, the enquiry committee, on whose

recommendations, the whole exercise has been under taken,

is an entity which is alien to the Local Government Act, 2013.

It is the local Government Commission, who by virtue of

Section 55 (2) can recommend the suspension of Nazim or

Naib Nizam. The authority of commission has been assumed

or delegated to a committee which is not recognized by law

and Local Government Commission assumed the power of


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Chief Minister, which is beyond its statutory mandate. It

simply is transgression of authority, obviously offending the

spirit of law, which as such, is flagrant colourable exercise of

powers.

17. Article 4 of the Constitution of Islamic Republic

of Pakistan, 1973 gives full protection to every citizen to enjoy

the protection of law and to be treated in accordance with law,

being his inalienable right. When law provides a specific

procedure to do any act, it is to be followed as it stands. The

provision of law may not be construed according to the whims

of the authority, at the helm of affairs. The power or authority

vested by the law or Constitution is a sacred trust, which is to

be exercised justly, fairly, equitably with all reasonableness

and judicious conscience. Where mandatory provision of law

is not followed but instead authority vested by law is exercised

in arbitrary and capricious manner, it offends all norms of

justice. Such order does not qualify the test of equity, justice,

fairness, transparency and reasonableness, rather it is

tantamount to colourable exercise of power, as such cannot

be termed to have been passed by lawful authority. The

Legislature enacts laws and inserts every word with precision


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by defining the limitation of power or the authority to be

exercised. It cannot be abridged or transgressed by self

serving interpretation. It is settled principle of law that things

are to be done as required by law or not at all.

18. It is settled law that authority or Tribunal are

vested with power to act or decide the matter rightly not

wrongly. Whenever, it proceeds wrongly, it is an exercise

without jurisdiction. The order, though passed by competent

authority, but without jurisdiction, is susceptible to judicial

review.

19. We in light of above discussion, are of

considered view that impugned Notification has been issued,

contrary to the statutory command and has not been issued by

a competent authority. Thus by accepting the instant petition,

impugned Notification is set aside, by declaring it as illegal,

unlawful, without jurisdiction, having been issued without

lawful authority and of no legal effect.

J U D G E

Announced on

24th May, 2016 J U D G E

Himayatullah Mayar etc District Nazim Mardan vs C.M. KPK€¦ · in violation of codal formalities....

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Transcript of Himayatullah Mayar etc District Nazim Mardan vs C.M. KPK€¦ · in violation of codal formalities....