Humayoon Muhammad Khan (Petitioner) VS Prov. of Sindh & Ors (Respondent)

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,- HIGH COURT OF SINDH AT KARACHI

Const. Petition No.D-425 of 2009

Present: Mr. Justice Anwar Zaheer Jamali. Chief Justice Mr. Justice Muhammad Karim Khan Aqha

Dates ofhearing: 01.4.2009, 02.4.2009 and 10.04.2009

rt Petitioner Humayun Muhammad Khan through Mr. Khalid Jawed Khan and Mr Ziaul Haq Makhdoom, advocates.

Respondent No.1 Govemment of Sindh through Mr. Muhammad yousuf Leghari, Advocate General Sindh.

Respondent No.2 The Town Municipal Administration through Mirza Nazim Baig, advocate.

Respondent No.3 The Election Commission of pakistan through Mr. Ataur Rehman, Asst. Election Commissioner, Regional Office, Karachi.

Respondent No.4 The Town Council (Keamari Town) through Mr. Abrar Hassan, advocate.

JUDGMENT

MUHAMMAD KARIM KHAN AGHA. J., The petitioner is duly elected Nazim, Keamari Town, Karachi, who was elected after securing highest votes, out of 104 total votes, in the local bodies election held on 06.10.2005 by respondent )r No.3.

2.The petitioner alleges that since his election as Nazim, his political rivals have been trying to disrupt the smooth performance of his duties as Town Nazim amongst other by filing false and frivolous complaints before different authorities, which were eventually dismissed.

3.According to the petitioner, he has been serving his area and the people with great dedication, commitment and irrespective of political affiliations. His services have been repeatedly acknowledged by the people at large as well as his colleagues in the Council. He has drawn the Court's attention to tlre meeting of the Town Council, Keamari, Karachi, held on 30.01.2009, which was aftended by all \.lt the members of the Town Council, who, in this meeting, highly appreciated t}e

r , s'' services rendered by the petitioner and all the members reposed their trust and

confidence in the petitioner. They acknowledged that due to the petitioner's untiring efforts, Keamari Town has been made a rnodel Town in Karachi.

4.The petitioner claims that due to political rivatry opposite party has launched a campaign against him and his supl,orters and have harassed and

intimidated them, threatened their lives and in some cases kidnapped the members -+ of the Council and offered them huge sums of rnoney in order to change their loyalties.

5.On account of such pressure, the petitioner alleges that members of the Council were persuaded to file motion for recall of the petitioner from the office of Town Nazim. The petitioner filed a Suit against such action for Declaration and Permanent Injunction, which is pending before this Court. According to the petitioner, a Town Nazim can be recalled by irritiating the procedure provided in Section 63 of the Sindh Local Govemment Ordinance, 2001 (..Ordinance, 2001"), which procedure, the Petitioner claims mandatory, but seriously flouted and misinterpreted in the instant case.

6.On 14.03.2009 through the electronic media, the. petitioner came to know that four motions for recall against him were filecl by eight members of the Town n Council being proposers and seconders. On 16.03.2009 the petitioner came to know that these motions were brought on t1.03.2009 and pursuant to these motions, an rrgent meeting of the Council was called on 14.03.2009. This meeting was held on 14.03.2009 about which the petitioner was not given any notice.

7.Thal meeting proceeded in the absence of the petitioner. According to the petitioner, in the said meeting, false and baseless allegations were levelled against him. The petitioner also came to know that on 14.03.2009 Town Municipal Officer of TMA, Keamari, Karachi, addressed a letter to the Provincial Election Commissioner with the request that further action may be taken as required under Vk subsection (4) of Section 63 of Ordinance, 2001 .

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8.According to the Petitioner the same Taluka Council, consisting of 13 members, who had earlier moved the motion to recall him under Section 63(1) of Ordinance, 2001, intend through, their interpreration of 3.63 (4), also to be the body which shall vote for his removal.

9.In a nutshell, the case of the petitioner is that:

O I) The action taken against him was mala-fide on account of political rivalry, as revealed by the speedy removal process.

II)That he was not given a right to be heard.

III)That his proposed removal was in breach of required procedure under Section 63 of Ordinance, 2001 and in particular that he could not be recalled by the Taluka Council, which consisted of only 13 members but that he could only be removed from his office by way of recall by 2/3'd members oi the total membership of the- saml electoral college, who had elected him to office, namely the Union Council and this was the proper interpretation of Section 63(4) of Ordinance, 2001

10.He has prayed this Hon'ble Court as under:

D Declare that the recall motion can only be approved and passed against the petitioner/Town Nazim by a secret vote of 2/3'o majoity of the total membership of the Union Councils i.e. electoral college comprising of 104 members.

iD Declare that the "Council" referred to in sub-section (4) of Section 63 of the SLGO, 2001, is the electoral college of the petitioner comprising of the total members of the Union a Councils comprising 104 members and not the Town Council/Respondent No.4.

iiD Declare that the recall motion cannot be moved or initiated unless prior opportunity/notice is served on the petitioner.

iu) Declare that 'reason to believe' envisaged in Section 63(1) of SLGO requires existence of objective and verifiable reasons duly supported by existing material/documents/evidence on record justifuing such adverse allegations on the grounds stipulated in the said provision.

v)Declare that the proposed motions(s) of recall against the petitioner are arbitrary, illegal, mala fides and of no legal value whatsoever.

vi)In the altemative, declare sub-section 4 of Section 63 of the SLGO,2001, to be ultra vires the Constitution of Pakistan,

vii)Grant permanent injunction prohibiting the respondents, its $F officers, etc. from giving effect to the recall motions against

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the petitioner or from placing the same for vote before the respondent No.4 or fiom removing the petitioner from the office of Town Nazim, Keamari.

viii)Any other and additional relief as this Hon'ble Court may deem proper in the circumstances ofthe case.

11.On the other hand, Mr. Muhammad yousuf Leghari, Advocate General, Sindh for respondent No.l and Mr. Abrar Hassan, leamed counsel for a No.4 refuted the contentions made by the petitioner.

respondent

12.According to the respondents, they have not been in breach of Section 63 of Ordinance, 2001 in connection with recall of the petitioner as Nazim. They pointed out that the process required under Section 63(1) of Ordinance, 2001 was that the Council was entitled to move a motion in the Taluka Council through Naib raluka Nazim for recall of Taluka Nazim and that the same body under Section 63(4) of Ordinance, 2001, through a secret ballot, conducted by the Retuming Officer, nominated by the Chief Election Commissioner by 2t3d majority, could remove the petitioner from the office and that the procedure was being complied with. Finally, they rejected the contentions of learned counsel for the petitioner that recall of a Nazim under Section 63 of Ordinance, 2001 was a mala-fide process and asserted that the petitioner through prior notice was not

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denied his opportunity of being heard.

13.During the course of arguments, leamed counsel for the petitioner underlined the manner in which Section 63 of Ordinance, 2001 had not been complied with and how it had been misinterpreted. Conversely, the respondents in their submissions asserted that Section 63 of Ordinance, 2001 had been fully complied with.

14, In order to review the various arguments of the parties and for ease of reference Section 63 of Ordinance, 2001, as relied upon by the petitioner and as reproduced by the petitioner in his petition and which contains the procedure for Vk the [Recall] ofa Taluka Nazim i.e. the Petitioner, is set out below in its entirety:-

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Section 63, ' '#/" '' Recalt of Taluka. Nazim (f) member of the Taluka Council, If in th" opiniSn of a Taluka Nazim is acrino againsi ,r,... i, l"l"*, io il.ti"r" tt ut tt " p"rLr,lJ,n.

,rr"-pril,. " the people or is neglige-nr interest of or is responsible fo, ioJ. lf opport*ity rmprove sovemance and to by another member of rhe the detivery ;i;;;;;;;..ay, seconded councii, gt;;;;ffi. ;;;""" a morion councir through Nuii i"i,i.;,i;)],ij ro. .""u1 or il,,J;1,11y.

(2)On receipt of notice referred to in sub-section (l), the Naib Taluka Nazim shall summon a. session of the Taluka earlier than three davs b Council not + c"*.ii'iJ""r "r;#;H::,1?iiater than seven davs' irthe raluka

(3)Where the Taluka Council is alreacly in session, the motion referred to in sub_section.(l) rhe next day from its receipt shall be d;rp ;;;fiberations on by,h; N;ili;t,j" N;#

(4)[where rhe morion *TT:-1r" in^sub-section (l) is approved two-third maioritv of the. votes by of *," totri ,'.ri_,l"erstrip of the Council, throueh a secret baltot officer nominated bv the chi"f to b"-;il;il;;e Reruming Nazim shall cease to hold^office E;;;-a;;;;riJnl'J, ,r,. rur*u forthwith and the notification shall be issued in this behalf by d;-4il;;tii"ii""'"El_.*rio*, accordingly.l

(5)where the motion fails.in_,the Taluka Council, the proposer and seconder of such motion shall lose ,r,"" *""'i"if, the ratuka council and N"ib u;i;;N;j;:]ffi;:# i.".U"., of ". orthem also a Naib Union Naziml. is T" Taluka Nazim shall have rhe right Taluka Council and address it in !v qrvvu ro appear before the nis aefenc-e.-

(7)No motion for recall of Taluka Nazirn shall be moved during the.first six months of assumption of office of Taluka Nazim nor shall such morion be ."o"rt.d' u.ror. tir"'.*pi.y'Ji?,i"'y"* r.o. the rejection of previous motion.,, t [It is to be noted that as subsection (5) has been omitted Local Govemment Amendment ordinance, J.;;ii;;; (5),(6) and by a Sindh (7), as mentioned above, should respectively] be.;;;;;;;;rJt?l,fa frl "",

15.with regard to Section 63 (l) ofordinance, 200r the petitioner referred to the words "reason to believe',, which, according to him, meant that the reasons should be recorded in writing to avoid the section from being abused by non- speaking whimsical opinions. The respondents, however, did not consider that the section required any such written reasons to be given.

16.Leamed counsel for the respondents reluctantly conceded that there may have been a breach of Section 63(2) of Ordinance, 2001, as the Naib Taluka Nazim had summoned the Taluka Counsel earlier than the 3 days,period required dk by this subsection.

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17' section 63(4) of ordinance, 200I was the next section, which was hotry disputed befween the parties and can be regarde, as being the crux of the matter between them' However, for the reasons mentioned below, this section as set out in the Petition, will not be delved into at this stage.

18' In this case the onry other rerevant sub-section of section 63 is sub-section

(7)which specifically gives \ the petitioner the right to be heard. According to the respondents, the petitioner had notice of the meeting and, therefore, had an opportunity of being heard but did not avail himself of the opporhmity, as such, there was no breach of this provision.

19.However, after the end of his arguments, and almost at the end of the Respondents' arguments, in an unexpected turn of events, the petitioner drew the court's attention to the fact that the basis for which he had origina,y challenged Section 63 of ordinance, 2 00 l may not have been correct. This is because the key section on which his arguments revolved around in the Ordinance namely Section 63(4) ot Ordinance, 2001 had been inserted by an Ordinance passed by the Govemor of Sindh under Article l2g of the constitution, which provided that such ordinance would lapse after a period of 90 days and in such circumstances the original wording ofsecrion 63(4) of ordinance, 2001 will now hold the field.

a 20. when asked to clarify this position, the reamed Advocate General Sindh confirmed that the Ordinance in question is dated 04.0g.2007 and, therefore, it lapsed on 03 '11.2007. He conceded that the ordinance had not been continued by any other law and, therefore, he agreed with the leamed counsel for the petitioners that the original wording ofSection 63(4) ofordinan ce,20ol now held the field.

2l' on the other hand, Mr. Abrar Hassan, reamed counsel for respondent No.4, refened to Articre 268 of the constitution and, in particular, Articre 26g(7).

According to him' this Articre of the constitution gave a regar cover to the 6:. Ordinance and, therefore, it continued to be in force.

22.In the face of Article 128 of the cons ,n#l i;lffo

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,uu"merit in the contention of Mr. Abrar Hassan on his reliance o, .Lr"r. 26g which is only a transitionary provision and wou.ld, if his argument was accepted, make Article r2g of the Constitution redundant in many cases.

23' A crose revieu' of Section 63 (which the petitioner placed reriance on in his Petition) and the now revived section 63 reveals that it is the same as the revived

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' Section 63, except that the original Section 63(4) & (5) have now been revived and thus its revivar does not make the earlier submissions of leamed counser redundant in respect ofSection 63(1), (2),(3) and (7) as these remain unchanged.

24' As such, our decision wilr be guided by reference to the original wording of Section 63 of Ordinance,200l, which along with Section 62 now stands revived and in particular will consider Section 63(4) of Ordinance, 2001 .

25.We have reviewed the Court record, in detail, and have carefully considered the arguments ofthe leamed counsel for the respective parties.

26.The case turns on the interpretation of Section 63 of the Ordinance, Section 63 has already been set out above, however, for ease of reference we set out the revived Section 63(4) and (5) which will now be applicable to this case.

If the motion referred to in sub-section (l) is approved by paJority of the votes of its total rn"rnu"ot ip ii,ro,rff 'u ballot, the Election Authority shall cause u uot" ,".r", members of Union Councils in the District.,, to t"Lt Uy tL

':63(5) Where the motion is approved by a simple majority of the members of the Union Councils of th; Tald; p;;ent and voting , the Taluka nazim shall cease to hold oflice drn tn" aut" of notification to be issued in this behalf by the Election Authority"

27' In our view, no subsection ofa section can be read in isolation to

the whole section and likewise no section can be read in isolation to the whole scheme of an Act. The Act, as a whole and its various sections and

subsections and their interplay, must be viewed in their entirety. In this yk regard we rely on the case of AyAZ HUSSAIN v. pROVINCE OF

8 ..i:* SINDH (PLD 2005 Karachi 3g4). For convenience sake, \\,e reproduce relevant portion, available at page 390, as under:-

"Every secrion musr be ."T]1"*g as a whole and self-contained, wrth the inclusion of saving clauses and provisos. .It is rure,' says Subbaraq J. 'rhat an ."]:**"y to be made of ail the parts construction of a section is together anJd;;ilil;;rilissiure omrt any part of it. Subsections to in.a section must, therefore, as part of an inregrat whole be read and * b"i"s il;.;;;;;;nt, I lll1., tuyng lighr, if neea Ue, or-th! ,.r,, ;l;;;"ri"* each

*ft p: r.x#i JJ,f,ff #i fisf iH,f :,*: gHffi :i*# construed in its entirety in ilffi#ail;,f order to

28.Each case, however, w r turn on its own particurar facts and crrcumstances. Section 63(l) of Ordinance, 2001 provides as under:

"Section 63. Recall of Taluka (l) If in the opinion of a member of the Taruka council, .Nazim ,h.r;l;.';J;;;i" f"ri5iJ *",n" ,tiH"ffil,:x:[1i::ffj"$:xii[",h,,,".#n*ffi * Improve governance and the detivery ,;;;,1;';li,"seconoea by anorher member of the in.the ratuka councir through courcit,gi;;;;; i" *"ii'"rn",i"" "f Taluka Nazim.'.

N;'t i;ui;'ila,il'iol 1".r, or 29' The key to this section is whether a member of a Taluka council has to give written reasons for his opinion or whether he can simply make bald assertions. Under Section 63(7) of Ordinance, 2001, the Taluka Nazim shall have the right to a' appear before the Taluka Council and ' address it in his defence. Under Section 63(2) of Ordinance, 2001, on receipt of notice, referred to above in sub_section (l) of Section 63, the Naib Taluka Nazim shall summon a Session of the Taluka Council not earlier than three days but not later than seven days, if the Taluka Council is not already in Session.

30.The interp.lay of these various subsections wourd, therefore, indicate that the Nazim could be called by the Taluka Council within such time frame in order to defend himself against the opinion of the member and seconder, who have moved a motion against him. (or under Section (y 63(3) the very next day if the Council was already in session)

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31.In order for the Nazim to effectively defend himself it is only fair that he be given the reasons as to why this motion is being moved against him. This is more so based on the facts and circumstances of this case when only two months earlier the council had paid him glowing tributes on his performance as Nazim. The Nazim was entitled to know on what a basis his performance had deteriorated in the last two months to one of near excellent to one ofno confidence.

32.We, therefore, hold that, based on the facts and circumstances of this case, the Petitioner should have been afforded due opportunity of hearing by the Council to answer the charges levelled against him in the recall motion. Reliance is placed on the case of SADIQ HUSSAIN v.

FEDERATION OF PAKISTAN (2008 YLR Page 152), wherein at page 156 it was observed as follows:-

"The validity of the exercise of power by the concemed Income Tax Officer or the fact that such action had been taken by him in good faith, would always be open to question unless the material upon which such action had been taken was disclosed to the assessee. Failure to disclose such material to the assessee would render such action completely arbitrary and discriminatory because conclusions would be drawn by the Income Tax Offrcer or the Regional Commissioner of Income Tax, himself without being 1 supported by any evidence. The contention that enquiry was to be conducted by the Income Tax Officer could not by itself cloths such action with validity."

33.Section 63(2) of Ordinance, 2001 provides as under:- "On receipt ofnotice referred to in sub-section (1), the Naib Tduka Nazim shall sunmon a session of the Taluka Council not earlier than three days but not later than seven days, if the Taluka Council is not already in session"

34.The importance of this subsection has been highlighted above, namely that the Nazim may have as little as minimum 3 days in order to prepare to defend himself. This time period must be strictly corrplied with V,Dr especially where the time limit is so short and it ties in with the Nazim's

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right to be heard. Secrion 9 of the General Clauses Act, rn*"$i, cleir that the time limit in this case was not complied with.

35.Reliance is also placed on the case of MUHAMMAD JAMIL v. Mr-rNAwAR KHAN (PLD 2006 SC 24)

"As a general proposition, the rule with respect to statutory t \ directions to individuals is the opposite of that which obtains with respect of public officers. When a statute directs things to be done by a private person within specified time and makes his rights dependent on proper performance thereof, unless the failure to perform in time may injure the public or individuals, the statute is mandatory. When an individual is the person not complying, he has no grounds for complaint. Under statutes of procedure, failure to complete required steps within the time specified is fatal to the case,"

36.We, therefore, hold that the respondents failed to comply with the time limit prescribed in Section 63(2) of Ordinance, 2001 and, therefore, breached this Section. This, in our view, is a major breach when read in the context of the entire Section 63 as it was tied very closely to the Nazim's one opportunity to be heard prior to his removal under this section. This breach was conceded to by the respondents' counsel during their arguments.

37.Section 63(3) of Ordinance, 2001, is not relevant to this particular 1 case as t}re Taluka Council was not in Session and had to be summoned under Section 63(2) of Ordinance, 2001. Section. 63(4) of Ordinance, 2001, (as revived) provides that:

alf the motion refened to in sub-section (1) is approved by majority of the votes of its total mernbership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the District."

38.This subsection makes it clear that after the Taluka Council has approved the motion to remove the Nazim by a majority of votes through secret ballot the second stage ofthe process starts, namely that the Union yX Councils will vote on the Motion.

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39.This is fortified by the now revived Section 63(5) of Ordinance, 2001, which provides that where the motion is approved by a simple majority of the members of the Union Councils of the Taluka present and voting, the Taluka Nazim shall cease to hold office fiom the date of Notification, to be issued in this behalf by the Election Authority (italics ,t added)

40.Thus, when read together Section 63(4) and (5) of Ordinance, 2001, as now revived, make it abundantly clear that the second phase of the removal of a Nazim by recall takes place at the Union Council level rather than at the Taluka Council level. This is entirely logical as in a democratic set up it is usually the appointing authority which is also the removing authority rather than a body which is other than the appointing authority. Since the Ordinance,200l is attempting to lay down democratic principles at the grass-root level this is an important consideration to be bome in mind.

41.Accordingly, we find that the removal process is a two tier process starting initially at the Taluka Council level and then finally moving to the

Union Council level. This finding is based on a plain reading of the .y Section and the interplay between its various subsections and is fortified

by findings in other cases which were decided prior to the amendment of the now revived Section 63(4) of Ordinance, 2001

42.Reliance in this regard is placed on 2004 CLC 707,2007 CLC 1553,2005 SCMR 186 and pLD 2005 Karachi 384. In the last cited case of AYAZ HUSSAIN v. pROVINCE OF SINDH (pLD 2005 Karachi 384), it was observed as under:

. "fo. intemal recall, if Taluka Council is not already in session, its sessions is required to be summoned not earlier than tfuee days but not later than seven days from the date of receipt of notice to move a motion and the Taluka Nazim is confened with right to appear and defend himself and the motion is required to be uX approved by majority of the votes of its total membership through

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secret ballot. In cose of.extemal recall, if motion fails nothing happens to Zila Nazim *h;;.;;';i;;;,1"ffi,n,o,ion proposer and seconder fails, the of such motion I"." ,ir.i. seats both Union Nazim and Member oi il;; 'fi#i as rhe provision regarding Election Auth:rj?

upon by the Member oy *rra',nr"rirri,ion to be voted uia" approval the_consequences.are i.r"r",f i""irit, and upon its mtemal recall motion,, (italics i" the ,urn.- in .".i".i '!!Jpu!L of extemal and addeJi

43.In rhe case of ALI GUL v. FEDERATION OF PAKISTAN (pLD

1 2005 Karachi 512), again

intemal recall as then applied which is a case entirely on point as regards to the now revivecl Section 63 (4), it was observed at page 520 as under:_

r'Regarding point

subsection (5) No.2, it may be stated that perusal of of section o: rr,. 6jir*..'iuif,'#p-ar*a above, reflects thar were ,h""r ;;r-;;";;;#"1j", ,i.opt" majority of total members of tJre- Taluka Nazim shalt cease t9. h:19 fi"; a;;;iliihe rarukq Notification to be issued i. Oi, til otr;-f."i, ii" a"y U"f,uff lirf,"ifffi#r,rr"riry.

"f Nothing has been broueht rTey,,'i;ft;;;r,,J: #fiL:: ;*l"Tf ii:*"f ,* U1i:n,Council of Tatuka wfrich accoraing'i" i,t. e** * :l zr I rn numbers.

4!! Also. neither i, r'.lection Authority the notification issued by as contemplat"a Uv .rU...ri"" of the- Ordinance has been produced nor iiirf r** U, respondents that such Notification it is the case of stood issued.,l

44.Section 63(7) ofOrdinance, 2001, provides as under:

Jl: f4rU Nazim shall have the right ro appear before the

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Taluka Council and address it in his defeice, Audi alteram partem namery that no one should be condemned unheard is a well settled principle of law. In the case of NAZIR AHMAD PANHWAR v. GOVERNMENT OF SINDH (2005 SCMR l8t4), following observation was made by the Supreme Court:-

"There can be no denial that right to personal hearing to a person against whom an adverse order is to bemade to be equated with fundamentaf rigtri a"J an adverse order made without affording i'i. * oppotunity of personal hearing is to be trJated as a void order-"

46.There can be no cavil with this proposition of law. This proposition, /lr however, should not be abused by those who seek to rely on it. For example,

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a person in full knowledge ofproceedings against him should notieliberately avoid appearing before those proceedings with a view to unreasonably delaying or voiding them.

47.It is to be noted that under the said proposition the person against whom an adverse order is made must be ..afforded an opportunity,, to be

tt heard. This means that he is given notice of the proceedings otherwise aware of the proceedings against him or is

against him and he is given an opportunity to associate himself with those proceedings.

48.The right to be heard is not absolute. In RUKSANA SOOMRO v.

BOARD OF INTERMEDIATE

AND SECONDAY EDUCATION (MLD

2000 page 145) a distinction has been made between cases where the right was statutory and cases where the right was based on principles of natulal justice. In cases where the right was statutory it was almost absorute wh st in the cases of natural justice it could be excluded expressly or by implication. Each case will tum on its own facts and circumstances.

49.In this case, there is no evidence to suggest that the petitioner abused his right to be heard. On the contrary the documenrs, on record, reveal that the Respondents moved with undue haste in order to attempt to remoye the Nazim. No sincere efforts were J made to afford him the right to be heard.

Furthermore, Mirza Nazim Baig, leamed counsel for respondent No.2, even admitted in open Court that no notice of the hearing was served on the petitioner' such deniar takes on even more signilicance in that it is an express term of the section and may be the only opportunity under the section that the Petitioner will have to be heard before he may ultimately be removed.

50.As such we find that the petitioner was not given notice of the proceedings against him under Section 63(l) of ordinance, 2001, which he carne to know about on 14.3.2009, after which time the motion had already {A been carried and was, therefore, denied the right to be heard.

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51.Reliance is placed on the case of ANISA REHMAN v. P.I.A.C (1994 SCMR 2232), relevant portion at page 2239, which is reproduced as follows:- "This Court has gone to the extent of pointing out that the mere absence of a provision in statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for q the proper exercise ofjurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal."

52.Based on our above interpretation of Section 63 (as revived) of Ordinance,2001, and how it should be applied, we find that the proceedings so far taken by the Respondents have in nearly all respects almost totally flouted the entire procedure laid down under Section 63 of Ordinance, 2001.

53.It is arguable that some of these breaches may have been of a technical natre but when taken as a whole and based on the facts and circumstances of this case we find that their breach has caused great prejudice to the petitioner.

54.Based on the above findings, we allow this petition and quash the entire proceedings taken against the petitioner to date as being arbitrary and illegal and direct that any proceedings, that may be taken against the , Petitioner under Section 63 of Ordinance, 2001, be made strictly in accordance with the Ordinance,200l and the Law based on the interpretation of Section 63 of Ordinance, 2001 as laid down in thisjudgment.

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y!l<,,* Karachi, Dated: rs.4.2009 vt'1

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ChiefJustice L.,t{