2004 PLP 979 (YLR)

2. Petitioner also alleged that respondent No. 1 failed to participate in any of the meeting of the Tehsil Council; therefore, under section 152(p) ceased to be member of Tehsil Council and a complaint was made to Election Commission of Pakistan to disqualify him. On 4-7-2003 petitioner submitted an application for leave to competent authority as he wanted to attend to his domestic problems. Meantime respondents Nos.3 and 4 in connivance with local M.P.A. and M.N.A. with the active support of respondent No. 1 moved resolution under section 63 of the Ordinance. Respondent No.1 was not competent to receive re-call motion or convene meeting in view of the order of Secretary, Local Government referred above. No motion could be carried out against him in his absence, as he was on leave on the relevant date. It is further alleged that respondent No.1 -convened illegal session of Tehsil Council on 9-7-2003 and manipulated fake, mala fide and arbitrary proceedings against the petitioner. Session of Tehsil Council Pindi Bhattian, District Hafizabad dated 9-7-2003 is illegal, coram non judice, mala fide and has no legal effect.

3. Ch. Fawad Hussain learned counsel for petitioner contends that in absence of petitioner meeting was convened by unauthorized person and recall motion carried in said meeting on 9-7-2003 by council is mala fide and unlawful. He further contends that Naib Tehsil Nazim has not attended the meeting of Council on three consecutive dates; therefore, he ceased to be member and was disqualified to preside over the meeting of Tehsil Council. The meeting was to be presided over by the senior most member of panel of the Presiding Officers of Tehsil Council but in violation of notification dated 30-5-2003, it was presided over by respondent No. 1, Naib Tehsil Nazim in illegal manner. He has further argued that two members who were shown to have voted against the petitioner have submitted Civil Miscellaneous No. 1755 of 2003 under Order 1, rule 10, C.P.C. for impleadment as party which shows that motion was not carried out by majority. They have submitted application that they have not polled votes but have been shown to be present and participated in recall motion. On the strength of the aforesaid contention, he submitted that proceedings of recall motion carried against him on 9-7-2003 be declared without jurisdiction and nullity in the eye of law.

4. The petition -was admitted on 11-7-2003. Respondents Nos.1, 3 and 4 have filed written statement. They have controverted the allegations of the petitioner and placed on record the minutes of meeting of Tehsil Council dated 9-7-2003 and other relevant documents including inspection report of affairs of Tehsil Council Pindi Bhattian. They assert that the petitioner has not approached appropriate forum, hence this petition is not maintainable. He lost majority in the House, therefore, he has no right to continue as Tehsil Nazim. Motion is yet to enter in second phase to be conducted by Punjab Election Authority. They prayed that petition is liable to be dismissed.

5. Heard. Record perused. Section 65 of the Punjab Local Government Ordinance, 2001 prescribes that there shall be a Tehsil Council in a Tehsil and a Town Council in a town in a City District and shall consist of. Naib Nazims of all Union Councils in the Tehsil or town, as the case may be. Subsection (3) provides that the Naib Tehsil Nazim or Naib Town Nazim shall be the convenor of the Tehsil Council or, the Town Council, as the case may be. Under subsection (4) the Tehsil Council and Town Council shall have their offices under the Naib Tehsil Nazim or Naib Town Nazim, as the case may be, and shall have separate budget allocations. Internal recall motion of Tehsil Nazim is provided under section 63, which is reproduced as under:-- "

63. Internal recall of a Tehsil Nazim-- (1) If in the opinion of a member of the Tehsil Council, there is reason to believe that the Tehsil Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity to improve governance and the delivery of services, he may, seconded by another member of the Council, give a notice to move a motion in the Tehsil Council through Naib Tehsil Nazim for recall of Tehsil Nazim. (2) On receipt of notice referred to in subsection (1), the Naib Tehsil Nazim shall summon a session of the Tehsil Council not earlier than three days but not later than seven days, if the Tehsil Council is not already in sessions. (3) Where the Tehsil Council is already in session, the motion referred to in subsection (1) shall be, taken up for deliberations on the next day from its receipt by the Naib Tehsil Nazim. (4) If the motion referred to in subsection (1) is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the Tehsil. (5) Where the motion is approved by simple majority of the members of Union Councils of the Tehsil present and voting the Tehsil Nazim shall cease to hold office from the date of notification to be issued in this behalf by the Election Authority. (6) Where the motion, fails in the Tehsil Council, the proposer and seconder of such motion shall lose their seats both as Union Nazims and members of Tehsil Council. (7) The Tehsil Nazim shall have the right to appear before the Tehsil Council and address it in his defence. (8) No motion for recall of Tehsil. Nazim shall be moved during the first six months of assumption of office of Tehsil Nazim nor shall such motion be repeated before the expiry of one year from the rejection of previous motion.

6. Subsection (4) of section 69 of the Ordinance provides that all meeting of Tehsil Council shall be presided over by Naib Tehsil Nazim. In the instant case Naib Tehsil Nazim was bye-passed through notification dated 30th of May, 2003 issued by respondent No.5 which was subsequently withdrawn on 11-7-2003 by the Government itself. Said notification was in violation of express provisions contained in section 63 of the Ordinance itself. A meeting or recall motion against Nazim is to be presided over by Naib Tehsil Nazim under the law. Since notification has already been withdrawn; therefore, there is no need to further comment on this issue. The contention of the petitioner that motion was carried out in his absence is belied by the record. According to minutes of the meeting dated 9-7-2003, Ansar Abbas Bhatti addressed the House and highlighted his performance, tried to persuade the members to support him and condemned the recall motion. These proceedings bear the signatures of D.D.R.O. and A.D.L.G., officials of Tehsil in whose presence meeting was held. It is further apparent from the minutes of the meeting that House consists of 25 members, out of which 15 participated in the voting, 13 supported recall motion, one opposed it and one vote was found blank. The motion was carried out by majority in the House presided over by respondent No. 1 Naib Tehsil Nazim of Tehsil Council, Pindi Bhattian.

7. The absence of respondent No. 1 from Tehsil Council and objection of petitioner that he ceased to be member was reported to Election Commission under section 152(2) of the Punjab Local Government Ordinance, 2001 but same was turned down by Election Commission vide order dated 30-8-2003. Respondent No. 1 was authorized by law to preside over the meeting and was competent to convene it. Petitioner's claim that it was required to be presided over by senior member of panel is not justified by any legal provision in the Ordinance. Petitioner does not command majority in the House. Thirteen members out of twenty five were against him. He cannot successfully run the business of the House. The motion was properly moved by respondents Nos.3 and 4 in a meeting convened by respondent No.1 attended by 15 members out of which 13 voted in favour of motion. Petitioner also addressed it and tried to persuade the members not to vote against him but his speech could not persuade them. In these circumstances, motion was fairly and properly carried out by the House.

8. Respondent No. 1 is Naib Tehsil Nazim/Convenor of Tehsil Council and as such was competent to preside over the meeting for recall motion against the petitioner. Petitioner's objection that he has not attended meetings of Council on many dates, therefore, ceased to be member of Council has been turned down by Election Commission on 30-8-2003. Even otherwise, no notification for his disqualification was ever published prior to the date of meeting.

9. No material has been placed on the record to show any mala fide on part of respondents Nos.1 to

4. Even otherwise, it is very difficult to prove mala fide in these proceedings. Petitioner has yet to face Electoral College, as Punjab Election Authority is to cause votes of members of Union Councils of Tehsil in terms of section 63(4), of the Ordinance and rules framed by the Government of Punjab under section 191 of the Ordinance on 1-9-2003, and published in official Gazette on 18-9-2003.

10. For the reasons stated above, this petition has no merit and is dismissed with no order as to costs. S.A.K./A-998/L Petition dismissed.