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Writ Petitions No. 340 and 461 of 1957, decided on 31st October 1957.
, [as amended by City of Karachi Municipal (Amendment) Ordinance (I of 1949)], S. 280‑Provincial Government dis solving Municipal Corporation performs quasi‑judicial functions ‑Decision to dissolve must be Provincial Government's own, independent of any outside influence.
Held, that in all matters where executive authorities are armed with power to take disciplinary action after affording reasonable opportunity to the party affected and have also to give reasons for their decision, they are in effects perform ing the duties of quasi‑judicial tribunal.
Therefore, a decision to dissolve the Karachi Municipal Corporation under section 280, City of Karachi Municipal Act (XVII of 1933), is the outcome of a quasi‑judicial act.
Therefore, the decision of dissolving the Corporation should be taken by the Provincial Government independently and not on the advice and in pursuance of the instructions of, say, the Government of Pakistan. The order of dissolution can only be passed when the authority concerned after giving an opportunity applies its mind and is satisfied that the Corporation is not competent to perform the duties imposed on it by the Act.
Where the order dissolving the Karachi Municipal Corporation was not the decision of the Provincial Govern ment but issued by the Provincial Government under the direction and in pursuance of the order of the Government of Pakistan, it cannot be said to be an order envisaged by section 280 of City of Karachi Municipal Act.
Such an order of dissolution is liable to be set aside by a writ of certiorari.
Dawan Ziaul Hag and others v. The Government of West Pakistan P L D 1956 Lah. 358 ; Commissioner of Police Bombay v. Gordhandas Bhanji A I R 1952 S C 16 ; Mehar Chand v. Punjab State and others A I R 1955 N. U. C. 120 and Khan Abdul Akbar Khan v. The Deputy Commissioner of Peshawar and others P L D 1957 Pesh. 100 ref.
‑Provision whether directory or mandatory‑Object of statute to be looked at.
In every case the object of the statute must be looked at before deciding whether a statutory provision is merely of a directory or mandatory character. The breach of a mandatory provision always entails legal consequences vitiating all' the proceedings taken in disregard of it.
Montreal Street Railway Company v. Normandin A I R 1917 P C 142 and Dattatraya Moreshwar v. The State of Bombay and others A I R 1952 S C 181 at page 185 eel.
Khalid Wahid and another v. The Crown P L D 1956 Lah. 541 ; Rana Muhammad Jamil v. The Punjab Road Transport Board, Lahore and others P L D 1957 Lah. 1 ; Zain Noorani's case P L D 1957 Kar. 1 ; Zain Noorani P L D 1957 S C (Pak.) 46 and Muhammad Nawaz Khan v. Chairman, Punjab Road Transport Board, Lahore P L D 1956 Lah. 1068 distinguished.
Mir Ali Ahmed Khan v. The Province of West Pakistan P L D 1956 Kar. 237 ; Syed Quatali Shah v. Province of West Pakistan P L D 1957 Kar. 346 and Khalid v. Province of West Pakistan P L D 1957 Kar. 479 ref.
(as amended), S. 280‑Order of dissolution should contain direction to hold general elections‑Provision not merely directory ‑Order not axing a date for election, set aside.
An order under section 280 of the City of Karachi Municipal Act dissolving the Corporation must contain a direction to hold general elections. The idea of dissolution is not that the Provincial Government can carry on the administration of the Corporation through the Municipal Commissioner as long as it likes but that the Municipal Commissioner should carry on the administration, till such time as the new Corporation is reconstituted under the provisions of the Act. The provision in regard to holding elections and fixing a date therefor cannot be said to be of a directory nature.
On the language of section 280 of Karachi Municipal Act, no body can conceive the dissolution of the Corporation without holding the general elections and reconstituting it under .the relevant enactment governing it.
Separate Departmental instructions to hold general elections do not amount to compliance with the mandatory provision of section 280.
In the matter of reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan P L D 1957 S C (Pak.) 219 rel.
An order which did not fix a date for election was set aside.
(as amended), S. 280‑Order of dissolution should contain reasons for decision to dissolve‑Order without reasons, bad‑Order set aside.
The condition laid down in section 280 of the City of Karachi Municipal Act that the order of dissolution should also contain the reasons that led the Provincial Government to dissolve the Municipal Corporation is of a mandatory character.
The action contemplated under section 280 is of a penal nature.
The principle that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all is applicable to an order of dissolution under section 280 of the Act.
An order of dissolution which was not accompanied by reasons was held to be illegal and set aside on a writ petition.
Khalil and others v. The Crown P L D 1953 F C 133 ; Nazir Ahmad v. The King‑Emperor 63 I A 372 ; Subrahmania Ayyar v. King Emperor I L R 25 Mad. 61 ; State Bank of Pakistan v. Col. F. S. Waheeduddin and another Criminal Appeal No. 9 of 1957 ; Chauthmal v. State of Rajasthan and others A I R 1953 Raj. 73 ; Bernard Schwartz in "American Administrative Law", 1950 Edition at page 104 and "Executive in Britain" at page 251; W. A. Robson in "Justice and Administration" 3rd Edition at page 376 and S‑Galeotti in "Judicial Control of Public Authorities in England and Italy" at page 378 ref.
Kidar Nath Datt and others v. Kishan Das Basragi and others A I R 1957 Ph. 107 not approved.
(as amended), S. 280‑Dissolution of Corporation held by High' Court to be illegal‑Normal life of Corporation had already expired when order declaring dissolution illegal was passed‑Whether and what effective order can be passed under High Court's writ jurisdiction in the circumstances‑Constitution of Pakistan, Art. 170.
The Municipal Corporation of the City of Karachi was dissolved by the Provincial Government by an order under section 280, City of Karachi Municipal Act (XVII of 1933). The order of dissolution was held to be illegal on various grounds and set aside on a writ petition by the High Court.
Meanwhile, however, the normal term of the Corporation had already expired before the decision of the writ petition. The question was whether or what effective order could be passed by the High Court in the exercise of their writ jurisdiction in the circumstances of the case.
Held, that the administration of the Corporation could not be handed over to a defunct body.
Neither could the Provincial Government in the absence of a properly constituted Corporation take action under section 280 of the Act or by an executive act dissolve the Corporation with retrospective effect.
In these circumstances there was no other alternative but to order that the Karachi Municipal Corporation should be reconstituted under the direction of the High Court.
An appropriate writ was issued, directing carrying on of the administration by the machinery set up by the order of dissolution, and authorising the Municipal Commis sioner to exercise and perform all the powers and duties of the Corporation, Chief Officer and the Standing Committee under the supervision of the High Court till the Corporation was reconstituted under the provisions of the Karachi Municipal Act, 1933.
A. M. Khan for Petitioner.
H. T. Raymond and Fazle Haque for Respondents.
I. I. Chundrigar, Sharifuddin and Khamisani, amicus curiae.
‑This writ petition is directed against the order of the Chief Commissioner, Karachi dated 14th December 1956 dissolving the Karachi Municipal Corporation under section 280 of the City of Karachi Municipal Act, 1933. This order was published in the Gazette of Pakistan Extra ordinary dated 14th December 1956 and is reproduced below :‑
"No. 1/28/56‑LSG.‑Whereas it appears to me that the Karachi Municipal Corporation has been persistently abusing its powers and making default in the performance of the duties imposed on it by the City of Karachi Municipal Act, 1933.
And whereas the said Corporation has been given the opportunity to show cause why it should not be dis solved ;
Now, therefore, in exercise of the powers vested in me by section 280 of the City of Karachi Municipal Act, 1933, read with Government of Pakistan Notification No. 3/14/52‑Kar., dated 21st October 1952, I, N. M. Khan, Chief Commissioner of Karachi, do hereby direct that the said Corporation shall stand dissolved as from the 14th December 1956".
The petitioner at the time of the dissolution was the Deputy Mayor of the Karachi Municipal Corporation and has challenged this order on the ground that the provisions of section 280 of the City of Karachi Municipal Act have not been strictly followed, it is contended that neither the impugned order contains any reasons for dissolving the Corporation, nor any direction for holding the General Election is given. Mr. A. M. Khan, the learned Counsel for the petitioner strenuously argued that the respondents are mala fide and illegally in control of the offices of the Corporation and on one pretext or another avoiding to hold the General Election of Karachi Municipal Corporation under the relevant provisions and bye‑laws of the Karachi Municipal Act.
It was therefore urged that the order of dissolution be set aside and the Corporation should be restored and allowed to function in a normal way: In the alternative it is urged that respondent No. 1 be directed to hold General Elections within two months either on the basis of the existing electoral rolls as contemplated under Rule 17 (5) Chapter II of Schedule 1 of the Karachi Municipal Act, 1933 or by finalising the electoral rolls under preparation by the Chief Officer.
The respondents have strongly opposed this petition and maintained that the order of dissolution is in strict compliance with the statutory provisions of section 280 of Karachi Municipal Act as amended by Ordinance I ‑of 1949. The learned Public Prosecutor submitted that only a notice to show cause was necessary. It was given to the Corporation and the members were given ample opportunity to explain their position. Respondents produced notice served by the then Chief Commissioner dated 16th July 1956, to show cause within 15 days why the Corporation, should not be dissolved, and the reply of ,the Corporation consisting of 33 folios, and the note of dissent 'by the petitioner and 12 other members of the Municipal Corporation. On receipt of the aforesaid reply, a detailed reference in the matter was made to the Government of Pakistan who ordered the dissolution of the Karachi Munic1pal Corporation. It was in pursuance of this order that the order of dissolution was passed and published in Gazette of Pakistan. Mr. Abdul Karim Mangrio, Assistant Secretary to the Chief Commis sioner in an affidavit dated 9th September 1957, on behalf of respondent No. 1 made the following statement
"That after receipt of the aforesaid reply, a detailed reference in the matter was made to the Government of Pakistan and I produce herewith the order of the Govern ment dissolving the Karachi Municipal Corporation. True copy attached hereto and marked "C". It was in pursuance of this order that the Chief Commissioner's order of dis solution was passed and published in the Gazette of Pakistan Extraordinary dated 14th December 1956."
The order of the Government of Pakistan dated 14th December 1956 referred to in the said affidavit in pursuance of which the order of dissolution was made is in the following terms :‑
"I am directed to refer to the correspondence resting with your letter No. 41/P. A. dated the 15th October 1956, on the subject mentioned above and to say that after careful consideration the Central Government have decided that‑
(1) The Karachi Municipal Corporation should be dis solved under section 280 (1) of the City of Karachi Municipal Act, 1933, with effect from today.
(2) The District Magistrate should temporarily take over as the Municipal Commissioner in addition to his own duties till a whole‑time officer is appointed for the purpose.
(3) An advisory Committee consisting of 30 members shall be appointed to assist the Municipal Commissioner in his work. As to the constitution of this Committee instructions are under issue separately.
4. As regards the re‑establishment of the Corporation after fresh election a reference is being made to you separately. In the dissolution Press Note, however, it should be stated as laid down under section 280 (7) of the Act that the Corporation shall be re‑established by the election of now Councillors in 'accordance with the provisions of this Act.
Draft for formal notifications are also attached herewith for your guidance. They have been (drafted ) by the representative of the M/O Law.
In reply to other objections it was argued that necessary steps have already been taken for holding the general elections. The electoral rolls are being prepared under the direct supervision of respondent No. 2 with the aid of the Election Commission appointed by the President under the provisions of the Constitution of Islamic Republic of Pakistan.
During the course of the hearing it was also brought to our notice that the life of the Karachi Municipal Corporation has already expired. It was argued that no effective writ can be issued and for this reason alone this Court should decline to exercise its extraordinary jurisdiction under Article 170 of Pakistan Constitution.
This matter was argued at length and as it involved complicated question of law, on 13th September 1957, we called upon Mr. I. I. Chundrigar, President of the High Court Bar Association Karachi, Mr. Khamisani Additional Advocate General,, to appear as amicus curiae. On 14th September 1957, Mr. Sharifuddin, a senior counsel of this Court was also called upon to appear as amicus curiae. The Additional Advocate‑General, Mr. Chundrigar and Mr. Sharifuddin very fairly placed before us the point of view of both the parties but did 'hot support the order of dissolution of Karachi Municipal Corporation. The learned counsel appearing as amicus curiae have been of very great assistance in the decision of this matter.
Section 280 of City of Karachi Municipal Act as amended by Ordinance I of 1949 is as follows :‑
"If at any time, upon representation made or otherwise, it appears to (the Provincial Government) that the Corporation is not competent to perform, or persistently makes default in the performance of the duties imposed on it by or under this or any other Act for the time being in force, or exceeds or abuses its powers, (the Provincial Government) may after having given an opportunity to the Corporation to show cause why such order should not be made, issue an order directing that the Corporation should be dissolved from such date as may be specified in the order and that general elections shall take place in accordance with the provisions of this Act so far as they may be applicable. Such order shall be published in the (Official Gazette) together with the reasons for making it.
The order of respondent No. 1 dissolving the Karachi Municipal Corporation on their own admission in paragraph 5 of Abdul Karim Mangrio's affidavit reproduced above, is in clear violation of the provisions of the Karachi Municipal Act. Mr. Chundrigar's contention that the order of dissolution is not the result of the determination of the question by the provincial Government but was passed on the advice and in pursuance of the order of the Government of Pakistan dated 14th December 1956, is borne out by the above mentioned statement and letter of the Government of Pakistan dated 14th December 1956. On behalf of respondent No. 1 it was conceded that the Provincial Government in this case was the Chief Commissioner of Karachi. According to section 280 of Karachi Municipal Act the decision of dissolving the Corporation should have been taken by the Provincial Government independently and not on the advice and in pursuance of the instructions of the Government of Pakistan. The order of dissolution can only be passed when the authority concerned after giving an opportunity applies its mind and e is satisfied that the Corporation is not competent to perform, or persistently makes default in the performance of the duties imposed on it by or under the said Act or any other Act for the time being in force or exceeds or abuses its powers. The steps contemplated under the relevant section are exclusively to be taken by the Provincial Government and no third party can direct or influence decisions on such matters. It appears to us that in all matters where executive authorities are armed with power to take disciplinary action after affording reasonable opportunity to the party affected and have also to give reasons for their decision, they are in effect performing the duties of quasi judicial tribunal. A Division Bench of this Court at Lahore in the case of Diwan Ziaul Haq and others v. The Government of West Pakistan (P L D 1956 Lah. 358), have treated these functions as judicial acts. The learned Judges in that case were considering the power of the Provincial Government under section 238 of the Punjab Municipal Act almost similar to the one under consideration and observed at page 362 :‑
We have, therefore, no doubt that when a Commissioner or the Provincial Government consider the evidence of incompetency or maladministration against a Committee, and decide that it is not fit to function, that it should cease to exist for the time being, that the members thereof should vacate their seats, that the elected representatives of the municipal area concerned should be superseded by an administrator of the Government's choice, they perform judicial acts to which the writ of certiorari extends.
On either view the authority concerned have to follow certain well recognised principles in the discharge of their function. Mr. Sharifuddin's contention that all authorities in their capacity as quasi judicial tribunal must perform their functions themselves and should take decisions independently of any outside influence is well founded. He has placed reliance on three, decisions in Commissioner of Police Bombay v. Gordhandas Bhanji (A I R1952 SC16), Mehar Chand v. Punjab State and others (A I R 1955 N U C120) and Khan Abdul Akbar Khan v. The Deputy Commissioner of Peshawar and others (P L D 1957 Pesh. 100) a Full Bench decision of this Court. These decisions fully support his contention. In Commissioner of Police Bombay v. Gordhandas Bhanji (A I R1952 S C 16) it was held "It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a licence for the erection of a building to be used for purposes of public amusement is the Commissioner of Police. It is also clear that under rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any licence which has been granted under the rules. But the power to do is vested in him and not in the State Govern ment and can only be exercised by him at his discretion. No other person or authority can do it."
On a careful consideration of the facts of this case we are satisfied that the order dissolving the Karachi Municipal Corporation is not the decision of the Provincial Government but issued by the Provincial Government under the direction and in pursuance of the order of the Government of Pakistan and cannot be said to be an order as envisaged by section 28 of City of Karachi Municipal Act. The order of dissolution is liable to be set aside on this ground alone.
The learned counsel for the petitioner has however addressed us at great length on the question whether the provision of section 280 in so far as it requires to give reasons for the dissolution and to give directions about the holding of the general elections is mandatory or directory. This Court in a series of decisions reported in Mir Ali Ahmed Khan v. The Province of West Pakistan (P L D 1956 Kar. 237), Syed Quatali Shah v. Province of West Pakistan (P L D 1957 Kar. 346), Khalid v. Province of West Pakistan (P L D 1957 Kar. 479), took the view that the failure to observe these conditions under the relevant Municipal Act, vitiates the order of supersession or dissolution of the Municipal Committee concerned. My learned brother. Inamullah, J. wrote the leading judgment in Syed Quatali Shah v. Province of West Pakistan and I was a party to the judgment reported in Khalid v. Province of West Pakistan and shared the views expressed by Lari, J. in the judgment delivered on behalf of the Court. Lari, J. in Mir Ali Ahmad Khan v. Province of West Pakistan observed :‑
There is even a more glaring non‑compliance of the provisions of section 179. The resolution does not give reasons which led the Provincial Government to form the requisite opinion. In the absence of reasons it cannot be said whether the opinion of the Provincial Government was based on relevant or irrelevant considerations. The resolution satisfied itself with stating the conclusion. There is, therefore, clear non‑compliance of the provisions of section 179 and this non‑compliance must necessarily vitiate the order of supersession.
Inamullah, J. in Syed Quatali Shah v. The Province of West Pakistan observed :‑
"Reading the language as reproduced above of subsec tion (1) of section 219 of the Sind Municipal Boroughs Act, 1925, it is clear that if the Provincial Government decided. to declare the Municipality incompetent, and oil that ground it superseded the same, it had no option but to give the reasons for its declaration."
In Khalid v. Province of West Pakistan Lari, J, ob served :‑
" It will be seen that the notification only gives the conclusions reached by the Provincial Government and does not indicate the reasons on which the conclusions are based. The charge sheet cannot take place of the reasons. It is no knowing whether all the allegations enumerated in the charge were found to be substantiated. According to the rejoinder some of the allegations refer to acts during the regime of the Administrator. What actually influenced the Provincial Government in reaching the conclusions formulated in the notification could only be determined from the reasons if they had been incorporated as required by law in the notification. Absence of reasons makes it impossible to judge whether supersession is based on relevant or irrelevant considerations. This is why section 219 insisted on disclosure of reasons,"
We have come to the conclusion that the supersession ordered by the Provincial Government is bad because of failure of the Provincial Government to comply with the provisions of section 219 of the Sind Municipal Boroughs Act, 1925."
Mr. Raymond the learned counsel for the respondents has challenged the correctness of the views expressed in these decisions on the ground that in none of these cases the vital question whether the observance of such condition was of a directory or mandatory nature was considered and it was pressed that these decisions are not binding on us not only for this reason but because the other statutes though pari mater: a are expressed in different language than section 280 of Karachi Municipal Act. The learned counsel in support of the contention that the conditions mentioned in section 280 of Karachi Municipal Act are of a directory nature relied on the observations made in two Lahore decisions of this Court reported in Khalid Wahid and another v. The Crown (P L D 1956 Lah. p. 541) and Rana Muhammad clamil v. The Punjab Road Transport Board, Lahore and others (P L D 1957 Lah. 1). He also relied on the observations made by me in Zain Noorani case (P L D 19.57 Kar. 1), and approved by Their Lordships of the Supreme Court in P L D 1957 S C Pak. 46. Reliance was also placed on the observations of Their Lordships of the Privy Council in Montreal Street Railway Company v. Normandin (A I R 1917 P C 142) and lastly on two decisions Dattatraya Moreshwar v. The State of Bombay and others (A I R 1952 S C 181 at p.185) and Kidar Nath Datt and others v. Kishan Das Bairagi and others (A I R 1957 Punj. 106), a decision of Single Judge of East Punjab High Court. The last mentioned case was also referred by Mr. Chundrigar and supports the view pressed on behalf of the respondents.
The view expressed in the two Lahore decisions need not detain us firstly because they are authorities on entirely different facts and no body can dispute the principles of law enunciated therein, secondly, because in the application of these principles on the same facts there are conflicting deci sions. Changez, J. and Rahman. C. J. in Rana Muhammad clamil v. The Punjab Road Transport Board, Laho7e and others have treated the direction in the Statute of a directory nature. Another Division Bench consisting of Kayani, and Sharif JJ. in Muhammad Nawaz Khan v. Chairman, Punjab Road Transport Board, Lahore (P L D 1956 Lah. 1068), on the same question has expressed different view. These decisions therefore cannot be of much assistance for the decision of this case. The view expressed by me in P L D 1957 Kar. 1 and by their Lordships of the Supreme Court in P L D 1957, S C Pak. 46 were also entirely on different set of facts and circumstances and cannot be applied to the fact of this case. Their Lordships of the Supreme Court in that case were considering the time limits fixed under Article 141 of the Pakistan Constitution and observed that if the elections are not held within the time mentioned the non‑observance of the time limit will only be a breach of a directory provision of law and does not mean that the elections cannot be held after the expiry of the time fixed under the Constitution. Such are not the circumstances and facts in the present case. The question under consideration in the present case is entirely different. Their Lordships of the Privy Council in Montreal Street Railway Company v. Normandin observed :‑
When the provisions of a statute relate to the perfor mance of a public duty and the case is such, that to hold null and void, acts done in neglect of this duty would work serious general inconvenience or injustice to persons, who have no control over those entrusted with the duty, and at the same time, would not promote the main object of the legislature, such provisions are to be held to be directory only, the neglect of them though punishable not affecting the validity of the acts done.
This observation related to the performance of public duties and not to the exercise of power by a public authority for purposes of punishment and depriving a statutory body to function in the discharge of their duties conferred by a statute. It was for this reason that their Lordships observed :
The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at.
Their Lordships in that case were considering the neglect of the prothonotary to prepare upto d1ate jurors list and the arguments advanced was that the trial that took place on the basis of old list was coram non judice and must be treated as nullity and it was in that context that their Lord ships observed at page 144 :
Having regard to the nature of the sheriff's duties and their object, it seems quite unnecessary and wrong to hold that the neglect of them makes the list null and void ; and although the prothonotary's neglect, if it had been in the matter of the order of taking the names, might have resulted in a packed jury, the neglect if there had been any in other matters, would he of the same kind as the sheriff's. It does far less harm to allow cases tried by a jury formed as this one was, with the opportunities there would be to object to any unqualified man called into the box, to stand good than to hold the proceedings null and void. So to hold would not of course prevent the Courts granting new trials in cases where there was reason to think that a fair trial had not been had. The view taken by Monet, J. that he ought not to interfere where the appellants had shown no prejudice appears very reasonable, and Their Lordships are of opinion that it is also in accordance with the authorities.
It therefore follows that in every case the object of the statute must be looked at before deciding whether the breach of the statutory provision is merely of a directory or mandatory character. The breach of a mandatory provision always entails legal consequences vitiating all the proceedings taken in disregard of it. The decision in Datataraya Moreshwar v. The State of Bombay and others at 185 also does not lay down a different rule of law.
This brings us to the next question what is the precise scope and nature of the conditions laid down in section 280 of the City of Karachi Municipal Act. Mr. Chundrigar traced the history of the Local‑Self Government in the former Pro vince of Bombay. It will be noted that in prepartition days not only Karachi but the whole of the former Province of Sind was part of Bombay Province and all the legislation on this subject emanated from the Legislative Assembly of Bombay. The learned counsel drew our attention to City of Bombay Municipal Act, 1888, section 179 of Bombay Act III of 1901, section 129 City of Bombay Municipal Act VI of 1923 and section 219 of Bombay Act XVIII of 1925. He also drew our attention to Local Government Act (U. K.) 1933 and compared the provisions of these enactments with section 280 of Karachi Municipal Corporation Act, 1933.
The Provincial Government cannot dissolve or supersede the Bombay Corporation under the City of Bombay Municipal Act 1888. This enactment is oil the same pattern as the Local Government Act, 1933 in U. K. In the other 3 Bombay enactments, applied to the former Province of Sind, the power, both of supersession and dissolution of Municipalities, was conferred on the Provincial Government. Under Bombay Act III of 1901 and Bombay Act VI of 1923 there is no provision to give any opportunity or to issue a show cause notice before any order of dissolution or supersession of the Municipalities concerned is passed. Under Bombay Act XVIII of 1925, it is provided that before any order of supersession or dissolution is passed the Municipalities con cerned will be provided an opportunity to show cause and thereafter the Provincial Government may pass a suitable order about their future existence. There is however one marked similarity in all the three enactments that in case of dissolution it is essential for the Provincial Governments to fix a date for the elections of the new Municipalities and to hold the elections as soon as possible under the provisions of the relevant Municipal Acts, but wherever the Provincial Governments wanted to take over the administration of the Municipalities they could do so by passing ail order of supersession and carry on their administration under their own supervision. The contention of Mr. Chundrigar that no gap is contemplated under Bombay Act XVIII of 1925 and under the City of Karachi Municipal Act, 1933 between the dissolution and the elections of the new councillors is not without substance and is supported by various enactments referred to above. It is a well established rule of law, that all Acts in pari materia should be read together, as if they were one law. They are compared in the construction of statutes because they are treated to be governed by the same spirit and policy and having the same object in view. Judging the question under consideration in this light it appears to us that an order under section 280 of the City of Karachi Municipal Act dissolving the Corporation must contain a j, to hold general elections. The idea of dissolution is not that the Provincial Government can carry on the administration of the Corporation through the Municipal Commissioner as long as it likes but that the Municipal Commissioner should carry on the administration till such time as the new Corporation is reconstituted under the provisions of the said enactment. The provision of holding elections and fixing a date therefor cannot be said to be of a directory nature.
The contention that the introduction of Representative Bodies under Municipal enactments in Indo‑Pakistan sub continent was also one of the steps designed to lead India toward Responsible Government is not without substance. The concept of the dissolution of Municipal Bodies is also based on the same principles as those of legislatures. Mr. Sharifuddin is perfectly justified in pointing out that there cannot be any dissolution of the Municipalities unless and until along with the dissolution order there is also a direction for the immediate holding of the general elections. The observation of their Lordships of the Supreme Court in the matter of reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (P L D 1957 S C (Pak.) 219 at p. 247) fully supports this view. Their Lordships observed :‑
"We have, so far, negatived the Governor's power to dissolve the temporary Assembly on the construction of Articles 83 and 225, without seeking any external aid in discovering the intention of legislature. If it be borne in mind, a point most emphasized by Mr. Brohi himself, that a dissolution necessarily implies an appeal to the electorate by a fresh election and that on no democratic principle can the power to dissolve vest in the executive unless the exercise of that power is followed by an appeal to the people, the reason for the non‑dissolution of the temporary Assemblies will be much more apparent. In the United Kingdom a writ of dissolution is invariably accompanied by a summons to the newly elected Parliament, and it is not possible to conceive of dissolution without a fresh election being held."
Section 280 of the City of Karachi Municipal Act lays down three conditions for passing an order under it : (1) that an opportunity should be given to the Corporation to show cause why the order of dissolution should not be made, (2) thereafter the Provincial Government could direct by an order that the Corporation shall be dissolved from such date as may be specified in the order and that the general elections shall take place in accordance with the provisions of this Act so far as they may be applicable and (3) such order shall be published in the Official Gazette together with reasons for making it. In the present case the Provincial Government fulfilled the first condition but failed to give any direction for holding the general elections of the Corporation in accord ance with the provisions of the said enactment. They also failed to give reasons in the said order for the dissolution of the Corporation. Mr. Raymond's contention throughout was that the last two conditions namely, the holding of the general elections and the giving of the reasons are merely of a directory nature and their breach cannot invalidate the dissolution order passed by the Provincial Government. As has already been observed the dissolution and holding of the general elections are interconnected with each other. On the language of section 280 of Karachi Municipal Act, no body can conceive the dissolution of the Corporation without G holding the general elections and reconstituting it under the relevant enactment governing it. The contention of the learned counsel for the respondents in this behalf therefore fails.
Mr. Raymond, however, urged that the Provincial Govern ment has directed the Municipal Commissioner to hold early elections. The electoral rolls are under preparation and the election will be held as soon as the electoral rolls are ready. He contended that this is sufficient compliance of the conditions laid down in section 280 of the Karachi Municipal Act. It may be that the Commissioner is intending to hold elections, but this cannot be said to be the compliance of section 280 of the Karachi Municipal Act. It was incumbent on the Provincial Government to notify in the impugned order that f the elections of the Municipal Corporation will be held by a specified date. Departmental instructions in this direction cannot be considered to be the compliance of the mandatory provision of section 280.
The difficulty in this case would not have arisen if such a direction was given in the order of dissolution. Moreover the elections should have been held within the shortest possible time. The bye‑laws of Karachi Municipal Corporation permits the holding of the general elections on the basis of the existing electoral rolls. Municipal Bye‑law No. 2 (5) lays down :‑
"If Municipal election roll is not made in due time the Municipal election roll in operation immediately before the time appointed for its preparation, shall continue in opera tion until the new roll is made."
There is sufficient material on the record to establish that the Chief Officer had already taken effective steps for the preparation of new electoral rolls. A complete machinery was set up for this purpose. Preliminary electoral rolls have already been prepared, objections were invited and disposed of. The final electoral rolls were about to be printed. The Municipal Commissioner could have easily arranged for the holding of the general election on the basis of these electoral rolls, but he chose otherwise. These electoral rolls were discarded on the plea of the non‑inclusion of large number of citizens in the electoral rolls. This allegation is not substantiated on the record. There is much force in the petitioner's conten tions that the necessary amendment could be made in the bye‑laws, fresh objections could be invited, the electoral rolls could have been checked and all the voters could have been included in the electoral rolls. This could have been done without incurring heavy expenses and within a reasonable time. We do not propose to deal with this question any further and it will be sufficient to observe that in future such measures as would ensure early election should be adopted It was urged that the elections should be allowed to be held on the existing rolls or on the basis of the electoral rolls under preparation in December 1956. On a careful considera tion of all the material placed on the record it appears to us that to disturb the present arrangement will further delay the . holding of the election. In the interest of all concerned, present arrangement for holding elections should be adhered to and all possible measures should be taken to finalise the electoral rolls within the time laid down in the Municipal bye‑laws.
It is beyond doubt that the condition laid down in section 280 of the City of Karachi Municipal Act that the order of dissolution should also contain the reasons that ledfl the Provincial Government to dissolve the Municipal Corporation is of a mandatory character. This condition is based on well recognised salutary principles that any party affected by a decision should be informed of the reasons on which the decision is based. The decisions of a judicial tribunal are always expected to be accompanied by reasoned opinion. In our country both the Civil Courts and Criminal Courts are bound to give reasons for passing a particular order and judgment. The provision of Civil Procedure namely, Order XX rule 4, Order XLI, rule 31, Civil P. C., and section 367 of the Criminal P. C., are very clear on this question. Their Lordships of the Federal Court of Pakistan in a decision reported in Khalil and others v. The Crown (P L D 1953 F C 133) have emphasised the importance of giving brief reasons even when the appeal is summarily dismissed under section 421, Criminal P. C. Their Lordship observed at page 135
"An order of summary dismissal must indicate in brief the reasons which led the Court to reach the conclusion that there was no sufficient ground for interference. It is true that this section gives the appellate Court power to dismiss an appeal summarily, but that power cannot be exercised in an arbitrary manner. While exercising its powers under section 421, the Court must take care to make it apparent that the power has been exercised with due regard to judicial considerations. The Court should give some reasons which may indicate to a Superior Court that the questions arising in the case have been duly appreciated, and the simplicity or the gravity of the offence charged has been taken into consideration."
Their Lordships further observed :‑
"The obvious answer to this argument is that the absolute discretion given to the appellate Courts must be exercised in such a way as to secure due and efficient administration of justice, and to inspire confidence in the minds of the accused persons that their case has been treated with due care and caution by the appellate Court. There might be cases which are so clear and simple that nothing whatever can be urged on behalf of the defence." Similar views are expressed in another decision in Abdul Hamid v. The Crown (P L D 1955 F C 86).
Mr. Sharifuddin urged that this principle is applicable even to orders passed by a quasi‑judicial tribunal and by executive authorities. He invited our attention to the practice followed in England, America, France and Italy in this respect. Bernard Schwartz in his book "American Administrative Law" 1950 Edition at p. 104 and "Executive in Britain at page 251 has discussed this question at great length. W. A. Robson in "Justice and Administration" 3rd Edition at page 778 and S‑Galectti in "Judicial Control of Public Authorities in England and Italy" at page 157 has also dis cussed this question. These authors are unanimous in their opinion that as a principle of natural justice a party is entitled to know the reasons for decision be it judicial or quasi‑judicial. In administrative matters, however, this principle is in the process of recognition. Two members of the Donoughmore Committee, Professor Laski and Miss Wilkinson considered that to give decision without giving reason was the very definition of Autocracy. It is unnecessary to quote their opinion in extenso. We will only confine ourselves to what Schwartz in his book "Law and Executive in Britain" stated at page 251. The learned author stated
The purpose of requiring the disclosure of the reports of its subordinates used by the administrative agency to aid it in the process of decision is to ensure just decisions by subjecting the administrative process to the light of public inquiry. Even more important in ensuring this result is the requirement of reasoned decisions. The value of reasoned opinions as a check upon arbitrary adminis trative power seems clear. "For, in the first place, the requirement of an opinion provides considerable assurance that the case will be thought through by the deciding authority. There is a salutary discipline in formulating reasons for results, a discipline wholly absent where there is freedom to announce a naked conclusion. Error and carelessness may be squeezed out in the opinion shaping process. Second, the exposure of reasoning to public scrutiny and criticism is healthy. An agency will benefit from having its decisions run a professional and academic gauntlet, Third, the parties to a proceeding will be better satisfied if they are enabled to know the basis of the decision affecting them. Often they may assign the most improbable reasons if told none. Finally, opinions enable the private interests concerned, and the bar that advises them, to obtain additional guidance for their future conduct. Even where strict adherence to precedent is not observed, some light‑perhaps as much as the agency itself possess will be shed on future action.
It will thus be apparent that the giving of reasons enables the patty penalised to know the ground of their condemna tion acid creates a satisfaction that the authorities have done justice to them. In the present case, however giving of reasons is of much greater importance. The action Contem plated under section 260 of Karachi Municipal Act is of all penal nature. The dissolution of Corporation results in depriving the Councillors to administer the Corporation in the ordinary way. If the councillors are charge sheeted, they are entitled to know the charges proved against them and the consideration that weighed with tire authorities in arriving at such conclusions. This will also help the electorate in the selection of the councillor in the general election.
The rule of law as laid down by their Lordships of the Privy Council in Nazir Ahmad v. The King‑Emperor (63 I A 372), that where a power is given to do certain thing in a certain way the thing must be done in that way or not at all is applicable to the facts of the present case. Mr Khamisani Additional Advocate General, also invited our attention to the decision" of their Lordships of the Privy Council in Subrahmania Ayyar v. King Emperor (I L R 25 Mad. 61), and the observation of Their Lordships in that case are also applicable to the facts of this case. Their Lordships in that case held
"That the disregard of any express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by section 537 of the Criminal P. C. Such a phrase as "irregularity" is not appropriate to the illegality of trying an accused person for more different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment.
Nor could such illegal procedure be amended by arranging afterwards what might or might not have been properly submitted to the jury. To allow this would leave to the Court the functions of the jury, and the accused would never have been really tried at all upon tire charge after wards arranged by the Court. The trial having been conducted in a manner prohibited by law was held to be altogether illegal and the conviction was set aside."
Their Lordships of the Supreme Court in a recent un reported decision in (State Bank of Pakistan v. Col. F. S Waheeduddin and another) (Cr. A. No. 9 of 1957), from the order of our learned brother Lari, J., were considering the question whether it was incumbent on Mr. Justice Lari to take a fresh oath of office under the new Constitution before be signed the judgment appealed from and whether such a judgment if signed at a time when the learned judge had not taken the oath is a valid judgment or not. Their Lordships in that case observed :‑
"In view of this difference in the powers and responsi bilities of the judges and in the oath which they have to take under the new Constitution it seems to us to be perfectly clear that though a Judge of a High Court could if he so chose, continue in office by reason of Article 227 of the Constitution he could not without taking the new oath discharge the duties and exercise the powers appertaining to his office. This is how the Constitution was understood when it came into force on the 23rd March and the Judges of the Federal Court took the oath of office as judges of the Supreme Court and Judges of the High Courts took the oath of office as judges of the new High Courts. Mr. Justice Lari, however, did not take the oath of office with the other judges of the High Court of West Pakistan and when he signed the judgment in the case under appeal he was still an unsworn judge. Thus the reasons which he signed without taking the oath of office are not the reasons of a judge. It is, therefore, obvious that the whole of the document which contains the reasons for the oral judgment pronounced earlier is a void and inoperative document and trust be expunged from the record."
In that case their Lordships were considering the non o-bservance of Article 215 of the Constitution. It is in the following words :‑
"A person elected or appointed to any office mentioned in the second Schedule shall before entering upon the office make and subscribe an‑ oath or affirmation in accordance with that schedule."
It could be well said that the non‑observance or not taking the oath was merely a non‑observance of a directory provision and therefore it would not invalidate the judgment of our learned brother Lari, J., but their Lordships took a different view.
On a careful consideration of these authorities we are satisfied that the view taken in the three Karachi decisions referred to above was a perfectly sound view and we see no reason to differ from them. In the light of these observations the contrary view expressed in Kidar Nath Datt and others v. Kishan Das Bairagi and others (A I R 1957 Punj. 107), a Single judge decision cannot be approved. The reasoning given in that judgment is not sound and is in direct conflict to the view expressed in Chauthmal v. State of Rajasthan and others (A I R 1953 Raj 73), the only other Indian decision on this subject.
In this view of the matter the order of the Provincial Government dated 14th December 1956 is bad. There is no doubt in our mind that the observance of the condition laid down therein is of an obligatory character and its non-compliance has materially prejudiced the parties concerned. In effect the said order deprived the electorates to have their chosen representatives on a local body which had to carry on local self‑Government administration in the City of Karachi. It was incumbent on tire authorities not only to give reasons but also to fix the date for the elections of the new Corporation. The Provincial Government having failed to do so acted illegally and the said order is therefore set aside.
The last question that remains for consideration is whether in the circumstances of the case an effective writ‑ can be issued. Mr. Raymond contended that the life of the Corporation expired on 25th May 1957, and it would be most unwise if the administration of the Corporation is handed over to the Chief Officer and the standing Committee of such a defunct body. There is much force in this contention. The Chief Officer and the standing Committee will be functioning without the aid of the Councillors. The are not entitled under the City of Karachi Municipal Act to pass any Judge and can not lawfully and effectively carry on the administration of the Corporation. It was urged on behalf of the respondent that in these circumstances, the Provincial Government should be directed to issue a valid order under section 280 of the City of Karachi Municipal Act. In our opinion the Provincial Government in the absence of properly constituted corporation cannot take action under section 280 of the City of Karachi Municipal Act. We have already held that before action is taken an opportunity to explain charges must be given and certainly no charge‑sheet can be framed r against a defunct body. It seems to us that the Provincial Government at this stage cannot pass any valid order under section 280 of the Karachi Municipal Act and by an executive order cannot dissolve the Corporation with retrospective effect. In these circumstances there is no other alternative but to order that the Karachi Municipal Corporation should be reconstituted under the direction of this Court. This isl in consonance with the principle of equity, justice and good conscience. We are however of the view that the machinery set up by the Chief Commissioner under Notification No. 1/28/56‑L. S. G. dated 14th December 1956 should not be disturbed and will allow them to carry on the normal activities and functions of the Corporation. It was on these considerations that we passed the following order on 27th September 1957 :‑
"As the Notification dated 14th December 1956, dis solving the Municipal Corporation is bad in law, for the reasons to be given, we would under Article 170 of the Constitution order and direct Municipal Commissioner Mr. S. H. Qureshi to continue the administration of the Karachi Municipal Corporation as before in accordance with the K, M. C. Act and assisted by the existing Advisory Committee as constituted by the Chief Commissioner under Notification dated 14th December 1956. Mr. Qureshi will exercise and perform all the powers and duties of the Corporation, Chief Officer and the Standing Committees under the supervision of this Court till the K. M. C. is t reconstituted under the provisions of the Karachi Municipal Act of 1933. Mr. Qureshi can approach this Court for guidance if and when necessary.
Mr. Qureshi is further directed to prepare and complete the electoral rolls so as to hold the elections of the coun cillors by April 1958 under the provisions of the Karachi Municipal Act of 1933.
So far as Writ Petition No. 461 of 1957 is concerned the learned advocate for the petitioner and Mr. Raymond and Mr. Fazle Haque have agreed that the same may be disposed of on the arguments already advanced in the above writ petition which we have already disposed of. We would, in view of the order that we have passed holding that the order dissolving the Corporation was bad in law, order and hold that the amendment of the electoral rules so far made is without jurisdiction. No further order is necessary."
For the reasons given above the petition is allowed and a writ in terms of our order dated 27th September 1957, will be issued. Respondents to pay costs of these petitions.
A. H. Petitions allowed.
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