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P L D 1958 (W. P.) Karachi 586

 

Before Wahiduddin Ahmed and Muhammad Bachal, JJ

 

ISMAIL AHMAD MINAI‑Petitioner

 

Versus

 

THE CHIEF COMMISSIONER OF KARACHI

and others‑Respondents

 

Writ Petition No. 395 of 1958, decided on 29th August 1958.

 

 

A. S. Farooqi for Petitioner.

 

H. T. Raymond for Respondent 1.

 

Fazle Haq for Respondents 2, 3, 4.

 

Date of hearing : 29‑8‑1958.

 

JUDGMENT

 

WAHIDUDDIN AHMED, J.—‑ This writ petition is directed against the order of the Chief Commissioner of Karachi dated the 11th of July 1958, suspending the resolution of the Karachi Municipal Corporation, respondent No. 4, dated the 12th of June 1958, about the appointment of the petitioner as Chief Officer.

 

Shortly put the facts leading to the present petition are that on the 26th of April 1954, the petitioner was appointed as Chief Officer of the Karachi Municipal Corporation for five years.

 

The Karachi Municipal Corporation was dissolved by the order of the Chief Commissioner on the 14th of December 1956. On the 15th of December 1956, the Municipal Commissioner, appointed by the Provincial Government, informed the petitioner that his term of office had come to an end in view of the provi sions of section 280 (2). On the 24th of May 1957, the Municipal Commissioner levelled certain charges against the petitioner and handed over a charge‑sheet to him for purposes of an inquiry of these charges. In Writ Petition No. 340/1957 Jamil Ahmad v. The Municipal Commissioner, Karachi and another (P L D 1958 Kar. 56). This Court, for the reasons recorded in their order dated the 31st of October 1957, found the order of dissolution of the Karachi Municipal Corporation as bad in law and ordered that the Municipal Commissioner Mr. S. H. Qureshi will continue ‑to administer the Karachi Municipal Corporation as before in accord ance with the Karachi Municipal Act assisted by the existing Advisory Committee constituted by the Chief Commissioner under notification dated the 14th of December 1956. On the 20th of November 1957, the petitioner made an application in the above‑mentioned writ petition for restoration to the office of the Chief Officer but the same was rejected and he was directed to file a separate suit by an order dated the 4th of December 1957. On the 3rd of December 1957, the charge‑sheet delivered on the 24th of May 1957, to the petitioner was again handed‑.over to him by the Municipal Commissioner for holding an inquiry. On the 4th of March 1958, the petitioner filed a suit known as Suit No. 33 of 1958, on the Original Side of this. Court for a declaration. that the termination of the services of the petitioner with effect from the 14th of December 1956, was illegal arid without jurisdiction, that a mandatory injunction be issued to the defen dants to reinstate him in his post of Chief Officer and an injunction be issued restraining the defendants from advertising or appointing any other person as the Chief Officer and for a decree for Rs. 87,000 as damages. In that suit Qadeeruddin, J., on an application under Order XXXIX Rules 1 and 2, C. P. C., allowed the Municipal Commissioner to advertise and appoint anybody to the post of Chief Officer provided the appointment does not in any manner prejudice the rights of the plaintiff or compliance with the decree of the Court in the event of the plaintiff wholly or partially succeeding in the suit. My learned brother further restrained the Karachi Municipal Corporation from proceeding with the inquiry under the charge‑sheet.

 

The matter was taken in appeal. Constantine and Rahim Bakhsh Munshi, JJ., by an order dated the 26th of June 1958, in Letters Patent Appeal No. 12 of 1958 confirmed the injunction restraining the Karachi Municipal Corporation from proceeding with the inquiry but modified the order in so far as it restrained the Provincial Government from exercising its powers under S. 31 of the Karachi Municipal Act. On the 14th of May 1958, this Court in Writ Petition No. 340/1957 ordered the Municipal Commissioner to complete the election, to re‑establish the Corporation and to call the first meeting of the newly‑constituted Corporation on Friday, the 30th of May 1958, at 4 p.m. in the Corporation Hall to transact the following business

 

(a) elect from amongst the councillors one to be the Mayor and another to be the Deputy Mayor ;

 

(b) elect members of the Standing Committee ;

 

(c) elect the special committees mentioned in section 26 ; and

 

(d) appoint a person to act as the Chief Officer for the Corporation temporarily for a period not exceeding three months or until the appointment of the Chief Officer in accordance with the provisions of the Act, whichever be earlier.

 

For various reasons this meeting could not be held on the 30th of May 1958, but was held on the 12th of June 1958. In this meeting the petitioner was appointed as Chief Officer by Resolu tion No. 10 which is reproduced below:‑

 

“That the Corporation is pleased to appoint Mr. Ismail Ahmed Minai as Chief Officer, Karachi Municipal Corporation on terms and conditions prescribed in K. M. C. Act.”

 

On the 11th of July 1958, the Chief Commissioner of Karachi, respondent, No. 1, suspended the above‑mentioned resolution by an order which is reproduced below :‑

 

“CHIEF COMMISSIONER’S SECRETARIAT

No. 4/3/57‑LSG

 

Karachi, the 11th July 1958.

 

Whereas the newly‑elected Karachi Municipal Corporation at its first meeting held on 12 June 1958, passed Resolution being Resolution No. 10 which is in these terms

 

“That the Corporation is pleased to appoint Mr. Ismail Ahmed Minai as Chief Officer, Karachi Municipal Corporation on terms and conditions prescribed in K. M. C. Act.”

 

And whereas allegations have been made that the said Mr. Minai during the time that he held the post of Chief Officer in the previous Municipal Corporation did not work honestly, diligently and efficiently so that two charge‑sheets dated 3‑12‑1957 and 2‑1‑1958 were served upon him charging him with various acts of gross neglect of duty and indifferent of his responsibilities resulting in embezzlement of several lakhs of Corporation Monies and large financial losses to the Corpora tion.

 

And whereas the enquiry into these charges is not complete so that Mr. Minai has not cleared himself of these charges.

 

And whereas under the Scheme of the Act the entire executive power of the Corporation vests in the Chief Officer who performs all the duties and exercises all the powers of the Corporation including filing and defending of suits for or against the Corporation, Custody of all papers, documents and files And whereas in these circumstances as outlined above, it would be most unsafe to allow Mr. Minai to continue in office because by doing so there is every likelihood of injury or annoy ance to the public by further loss or embezzlement of public monies, destruction of official records, documents and files.

 

Now, therefore, in exercise of the powers vested in me by section 274 of the City of Karachi Municipal Act 1933 read with G. G. O. VI of 1958, I, N. M. Khan, Chief Commissioner of Karachi being of the opinion that the execution of the above mentioned Resolution No.‑10 dated 12 June 1958, is likely to cause injury or annoyance to the public of Karachi, hereby suspend the execution of such Resolution and prohibit the appointment of Mr. I. A. Minai as Chief Officer as specified in this Resolution.

 

Sd/‑N. M. KHAN

Chief Commissioner Karachi.”

 

On the 12th of July 1958, the Mayor of the Karachi Municipal Corporation, in spite of the protest of the petitioner, asked him to hand over charge to Mr. Irfanullah and did not accede to the request that the matter should be decided by the Corporation in its meeting to be held on the 16th of July 1958. It is alleged that Mr. Irfanullah, in pursuance of the orders of the Mayor, broke open the office of the Chief Officer on the 13th of July 1958, and installed himself as the Chief Officer. It also appears that on the 14th of July 1958, the petitioner was prevented from going in the Karachi Municipal Corporation premises, which was guarded by a police force.

 

It was under these circumstances that this petition was filed during the vacation before the vacation Bench consisting of Constantine and Rahim Bakhsh Munshi; JJ., who admitted it for hearing but refused to issue any ex‑parte injunction. The matter came up for hearing on the 13th of August 1958, and on the 27th of August 1958, before Inamullah and Munshi, JJ., but the same was adjourned and has now come up for hearing before us.

 

The petitioner has challenged the validity of the impugned order dated the 11th of July 1958, inter alia on the grounds that the Chief Commissioner has purported to act under section 274 of the Karachi Municipal Act, 1933, which provision has no application for the purpose of the said order, that it seeks, to suspend the execution, of the resolution which had already been fully executed on the 12th of July 1958, that it seeks to prohibit the appointment of the, petitioner as the Chief Officer which appointment had already taken place, that the notification of the charge‑sheets was made maliciously, that the allegations made in the charge‑sheets were frivolous and malicious, that the appoint ment of the petitioner being for a transitory period, the respon dent No. 1 had no authority or jurisdiction to suspend or remove him, that the action was maliciously taken to deprive the peti tioner from seeking re‑appointment on the expiry of this transitory period, that the action taken against the petitioner and the manner in which it is sought to be given effect to, is in violation of the principles of natural justice, and is arbitrary, capricious, high‑handed and in defiance of law and lastly, that respondent No. 1 is not the Provincial Government within the meaning of section 274 of the Karachi Municipal Act.

 

We have heard the learned counsel for the petitioner at length. Before dealing with the points raised by him it will be proper to mention here that under S. 290‑A of the Government B of India Act the executive authority of the Federation extended to the Capital of the Federation and the Governor‑General, under sub‑clause (2) of that section was empowered to make provisions for its government and administration and with respect to other matters mentioned therein. The Governor‑General by his Order No. 15 dated the 23rd of July 1948, provided that the executive authority of Karachi shall be exercised by the Governor- General either directly, or to such extent as he thinks fit, through an Administrator to be appointed by him, and that authority shall also extend to all matters included in List II of the Seventh Schedule to the Act. On the 28th of April 1952, the Governor -General by G. G. O. No. 4 ordered that Karachi shall be a Chief Commissioner’s Province. By notification dated the 21st of October 1952, the Governor‑General directed that, subject to such general or special instructions as may from time to time be given to him by the Central Government, the Chief Commissioner of Karachi shall have in respect of Karachi, all the powers and duties conferred or imposed on the Government of Sind under any enactment, notification, order, rule or bye‑law, referred to in Article 6 of the above‑mentioned order. By clause (2) of this order the Governor‑General further ordered that in the exercise of the powers hereinbefore conferred on him the Chief Commis sioner shall be subject to such general or special instructions as the Governor‑General may from time to time see fit to, make in this behalf. It has also been brought to our notice that on the 14th of November 1952, the Ministry of Health and Works by its letter No. F. 19‑12/49‑PH delegated certain powers to the Chief Commissioner in respect of the City of Karachi Municipal Act, 1933. The relevant portion of this letter, which still holds good, is reproduced below :‑

 

“(v) City of Karachi Municipal Act, 1933. The Chief Commissioner will exercise all the powers of the Provincial Government under the Act except that in cases falling under sections 8 (2) and 293 (3), the Chief Commissioner will pass orders with the prior approval of the Central Government. Further in respect of powers under sections 31 (1), 31 (2), and 42, if the Chief Commissioner disagrees with the proposals/ decisions of the Karachi Municipal Corporation, he will pass orders with the prior approval of the Central Government.”

 

In the year 1955, the second Constituent Assembly by an Act known as the Establishment of West Pakistan Act integrated the various States including Karachi, the Capital of the Federation, into the West Pakistan Province. By section 2 of this Act read with section 9 of the Government of India Act, Second Amendment Act, 1955, it was provided that the Capital of the Federation shall be administered in accordance with the provisions of section 290‑A of the Government of India Act. Consequently by G. G’s Order No. 2 of 1955, known as the Capital of the Federation Order of 1955, it was provided that on and from the 14th day of October 1955, the executive authority of the Capital of the Federation shall be exercised by the Governor‑General to such extent as he thinks fit through the Chief Commissioner to be appointed by him and that such authority shall extend to all matters included in List II of the Seventh Schedule of the Govern ment of India Act. On the passing of the Constitution the administration of Karachi continued to vest in the Central Government and its status was not disturbed. Under Article 211 of the Constitution it was provided that until Parliament shall by law provide for the determination of the area of the Federal Capital the area which immediately before the Constitution Day was comprised in the Capital of the Federation shall continue to be the Federal Capital and that the administration of the Federal Capital shall vest in the President who may, by order, make such provision as he may deem necessary or proper for its government and administration with respect to the laws which are to be in force therein. The President, however, did not issue any fresh order and direction but doubts were cast about the powers of the Chief Commissioner of Karachi in respect of the administration of the Federal Capital. The President of Pakistan, therefore, by President’s Order No. 6 of 1958, dated the 15th of April 1958, has provided as follows :‑‑–

 

“(2) Declaration.‑For the removal of doubts it is hereby declared that the Chief Commissioner of Karachi shall, in respect of the Federal Capital, have as he always has had, the same powers and duties as are conferred or imposed on him in respect of Karachi by the Government of Pakistan, Ministry of the Interior, Notification No. 3/4/52‑Kar. II, dated the 21st October 1952, subject to the conditions laid down therein.”

 

The upshot of all this discussion is that the Chief Commissioner of Karachi has been empowered to exercise all powers which the Sind Government could exercise under the various enactments applicable to the City of Karachi before its creation as Federal Capital. As such, the Chief Commissioner of Karachi is entitled to exercise the powers given to the Sind Government under the A provisions of the City of Karachi Municipal Act, 1933 with this rider that in respect of matters mentioned in the Ministry of Health and Works letter dated the 14th of November 1952, referred to above, he cannot pass any orders without the previous approval of the Central Government.

 

Now the question for determination in this case is whether the Chief Commissioner was entitled or empowered to suspend the resolution dated the 12th of June 1958, of the Karachi Municipal Corporation appointing the petitioner as the Chief Officer. The above‑mentioned order of the Chief Commissioner shows that the order of suspension is based on S. 274 of the Karachi Municipal Act.

 

The whole burden of the argument of Mr. Faruqi, the learned counsel for the petitioner, was that in the Municipal Act there are special provisions for the appointment and removal of the Chief Officer, that S. 274 of the Karachi Municipal Act relates to the ordinary resolutions passed by the Karachi Municipal Corpora tion and that on the principle of the general maxim : Generalia specialibus non derogant i.e. General provisions will not abrogate special provisions, it cannot be applied to a. case in respect of which there is a special provision in the enactment. S. 274 of the Karachi Municipal Act is to the following effect

 

“274. (1) If the Provincial Government is of opinion that the execution of any resolution or order of the Corporation or of any municipal authority or officer subordinate thereto, or the doing of any act which is about to be done or being done by or on behalf of the Corporation is in contravention of or in excess of the powers conferred by this Act or any law for the time being in force, or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons, the Provincial Government by order in writing, may suspend the execution of such resolution or order, or prohibit the doing of any such act.

 

A copy of such order of the Provincial Government shall thereupon be sent to the Corporation by the Provincial Govern ment.

 

(2) The Corporation may, notwithstanding anything con tained in this Act or the rules, take the matter into considera tion.

 

(3) If the Corporation after having taken the matter into consideration is of opinion‑

 

(a) that the resolution, order or act in respect of which the Provincial Government has passed order under subsection (1) should not be executed or done they shall pass a resolution accordingly, or

 

(b) that the resolution, order or act is not in contravention of or in excess of the powers conferred by this Act, or any law for the time being in force, or the execution of the resolution or the doing of the Act is not likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons, the Corporation shall pass a resolution accordingly and shall send a copy of the said resolution together with a copy of the proceedings relating to the said resolution to the Provincial Government.

 

(4) The Provincial Government may thereupon revise, modify or confirm its order.”

 

The learned counsel then referred us to S. 31 of the Karachi Municipal Act under which the Chief Officer of the Karachi Municipal Corporation is appointed. S. 31 reads as under:‑

 

“31. (1) The Chief Officer for the Corporation shall, from time to time, be appointed or reappointed by the Corporation, subject to the approval of the Provincial Government, and shall subject to the provisions of subsection (2), hold office for a period of not less than five years.

 

(2) A Chief Officer shall be removed from office, after being given three calendar months notice in writing, if at a meeting of the Corporation not less than two‑thirds of the total number of councillors constituting the Corporation for the time being shall vote in favour of a proposition in this behalf ; and he may be removed by the Provincial Government at any time after reasonable notice has been given to him and after con sultation by the Provincial Government with the Corporation, if it shall appear to the Provincial Government that he is incapable of performing the duties of his office or has been guilty of any misconduct or neglect which renders his removal necessary in the public interest.

 

Provided that the Chief Officer who is a servant of the Crown lent to the Corporation shall be liable to be removed by the Provincial Government at any time in the exigencies of the public service of which the Provincial Government shall be the sole judge.”

 

Although the resolution passed by the Karachi Municipal Corporation shows that his appointment was on terms and conditions prescribed in the Municipal Act, but the parties have taken a different position. Admittedly, according to them the petitioner’s appointment was for the transitory period, namely, three months or till such time within three months when the Corporation makes an appointment in terms of. S. 31 of the Karachi Municipal Act. There is no provision in the Act for the appointment of the Chief Officer for a temporary period. Presumably this was done on the directions given by this Court in Writ Petition No. 340 of 1957 about the re‑establishment of .the Karachi Municipal Corporation., This being the position, it is difficult to understand how the pocedure laid down in S. 31 with regard to the appointment of the Chief Officer can be invoked to the facts of the present case. It seems to us that the general maxim that general provisions will not abrogate special provisions can only be invoked in such cases where on the facts, the case falls within the terms of the special provisions of law. In our opinion, in the circumstances of the present case, S. 31 of the Karachi Municipal Act cannot come in the way of the application of S. 274 of the Karachi Municipal Act, if it is otherwise applicable.

 

The provisions of S. 274 of the Karachi Municipal Act are in the nature of checks on the activities of, the Karachi Municipal Corporation. It appears to us that under this provision the Provincial Government is entitled t0 suspend the execution of any resolution or order or prohibit the doing of an act, once it is of opinion that they are in contravention of or in excess of the powers conferred under the Act, and amongst other grounds is, of the opinion that it is likely to cause injury or annoyance to the public. Mr. Faruqi does not dispute that the appointment of the petitioner was made under a resolution and in view of this we are at a loss to understand why this section, in the absence of special provision governing these cases, cannot apply to the facts of the present case. We also find no force in the other contention of the learned counsel that under S. 2‑4 only those resolutions or orders can be suspended which have not yet been executed and cannot be applied to those resolutions which have been executed and carried into effect. The language of this section is very wide and even the acts which are being done can be prohibited. If we adopt the construction of the learned counsel for interpreting this section, the Corporation can defeat its purpose by not com municating the resolution to the Provincial Government and carrying on its resolution. In our opinion such interpretation is not warranted and cannot be given on the language of this section. If adopted, it will render this provision as a redundant and in effective provision of law. We cannot attribute such absurdity to the Legislature.

 

It was next argued that the petitioner’s temporary appointment was in pursuance of the directions of this Court that it was not an appointment under the Karachi Municipal Act and there fore S. 274 is not applicable to the facts of this case. This contention is also without, any substance. This Court only directed that the Karachi Municipal Corporation in its meeting should appoint somebody as Chief Officer to carry out the executive work till such time as they appoint somebody as permanent. Chief Officer. Certainly under this direction the general power vested in the Provincial Government to control the activities of the Karachi Municipal Corporation, was not taken away. Undoubtedly C6itrts of law are not legislatures and cannot suspend the operation of the provisions of any enactment.

 

We are also not concerned with, the propriety of the order. It may be that the Chief Commissioner s opinion is based on prejudices against the petitioner ; it may also sound well that the appointment of the petitioner might have been treated in the same spirit as the one contemplated under S. 31 of the Karachi Municipal Act and before suspending the resolution in question, the approval of the Central Government might have been obtained. But in our opinion; on the facts of the present case, the Chief Commissioner was not bound to do so. This is not required by P S: ‘274 and in the Instrument of the Delegation no such restric tions are placed on the Chief Commissioner in respect of such appointment.

 

The learned counsel for the petitioner further argued that the order of suspension will come in the way of the petitioner when the matter is taken up by the Karachi Municipal Corpora tion for appointment of the Chief Officer as contemplated by S., 31 (1) of the Karachi Municipal Act. There is no such difficulty. In our opinion, the mere , fact that certain charges have been levelled against the petitioner by the Municipal Com missioner, which are still pending, cannot come in the way of the petitioner’s permanent appointment as Chief’ officer. The question is to be decided by the Municipal Corporation on merits. It is for them to decide whether the petitioner should be appointed as Chief Officer although those charges are still pending and although the Chief Commissioner is opposed to the appointment of the petitioner as Chief Officer. They can again appoint the petitioner as Chief Officer in the expectation that the Central Government will agree with their view and will not act according to the wishes of the Chief Commissioner. But this is a question to be decided by the Karachi Municipal. Corporation and their power in. this respect under no circumstances can be considered to have been curtailed by any action of the Chief Commissioner on their resolution dated the 12th of June 1958. Constantine, J. in Letters Patent Appeal No. 12 of 1958 has dealt with this very question on an application made by the counsel for the Chief Commissioner and observed as under :‑

 

Mr. Raymond requests ex parte orders to prevent Mr. Minai from standing as a candidate for the post of the Chief Officer. I find it difficult in the extreme to understand upon what legal grounds Mr. Raymond bases his claim. So far as I can see anyone who fulfils the requirements of the recruitment rules or the Act, in so far as there are any requirements, is competent to stand as a candidate. He may be a peon or may have no hopes of success but he is still at liberty to submit his application. The mere fact that by consent an order was passed that any person appointed as Chief Officer would hold his appointment subject to the rights as ultimately found as a result of the suit does not prevent or stop Mr. Minai from standing as a candidate.

 

We are in complete agreement with this observation and there fore we find no difficulty in the way of the petitioner so far as his permanent appointment for selection as Chief Officer is concerned.

 

In our opinion, the Chief Commissioner, provided the matter is not covered by any special provision, is fully empowered under S. 274 to suspend any resolution or order of the Karachi Municipal Corporation if he considers it harmful or injurious to the public interest. The opinion of the Chief Commissioner is clearly of a subjective nature and cannot be the subject‑matte of a dispute in a Court of law unless it is based on mala fides.

 

The petitioner has made certain allegations in this case to show that the impugned order is mala fide. We don’t propos to decide this question as no effective writ can be issued in this M case. It is admitted that the Karachi Municipal Corporation) has advertised the post for permanent appointment and the question of permanent appointment is likely to come up within a fortnight’s period. In such circumstances we are not inclined to investigate into controversial questions of law and facts. On this ground, we also consider it will serve no useful purpose to decide the question whether the Chief Commissioner is the Provincial Government within the meaning of the Karachi Municipal Act. We leave this as an open question.

 

For the reasons given above, the petition is dismissed with no order as to costs.

 

A. H. Petition dismissed.

 

 

 

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