1993 PLP 304 (CLC)

16. In. reply‑ Mr. Abid Hasan Minto, Advocate for 14 councillors distinguished the present case from the precedent case and advanced his detailed arguments in the following manner:‑‑ That in the connected case an application was submitted before the Deputy Commissioner to the effect that the same was fake and that it was not moved by the requisite number of members. He submits that no such application was moved by the present petitioner before the Deputy Commissioner with such allegations as in connected writ petition. He further submits that there is not the slightest mention by the petitioner in the first writ petition that he moved such an application. 17. 1 have gone through the contents of Writ Petition No.10057‑92 with the assistance of all the learned counsel and am of the opinion that the petitioner did not file any application to the Deputy Commissioner containing allegations as are mentioned in the connected writ petitions. Learned counsel Ch. Hamid‑ud‑Din relies upon the following ground No.11I of his writ petition:‑‑ "It is submitted that Deputy Commissioner is not to act as a post office under Rules 2 and 3 of the Punjab Local Councils (Vote of No Confidence against Chairman and Vice‑Chairman) Rules, 1980. It is a clear case of failure of statutory obligations on the part of respondent No.l (Deputy Commissioner) and subsequent proceedings fixed for 24‑10‑1992 are without lawful authority." Ground VI is couched in the following manner:‑ "That on identical proposition Writ Petition No. 7432‑92 titled "Mian Muhammad Munir. v. Deputy Commissioner, Faisalabad etc. stands admitted to full hearing and is pending adjudication." Whatever may be the position, it is manifestly clear that firstly the petitioner did not file any application challenging the requisition on the ground that the same was fake nor any copy of such an application is filed on the file of present writ petition. As such the issue in the precedent case is different from the present one.

18. Learned counsel has stated at the bar that in the precedent case, no confidence motion has failed but the writ petition is pending in this learned Court. However, it is stated, that the learned counsel has not been able to cite any rule by which the. Deputy Commissioner, respondent No.l, is under statutory obligations to go into the question of genuineness or otherwise of the application nor any rule of this nature has been pointed out by any of the learned counsel appearing on behalf of the petitioner in two writ petitions.

19. The matter, however, does not end here. It is correct that the application moved by the councillors for convening the meeting is undated. But there is an order passed by the Deputy Commissioner on 15‑10‑1992 which is as under:‑‑ "Fourteen councillors of Town Committee Tandlianwala have presented this requisition for convening the meeting of the Committee to consider the motion of no‑confidence against the Chairman Sh. Muzaffar Ali. All the fourteen councillors are present and have verified their signatures on this application. The case may be processed and put up." In view of the aforementioned order, there is no room for the learned counsel to contend that the. Deputy Commissioner did not satisfy himself as to the genuineness of the application filed by the councillors, although there was no such legal obligation on the Deputy Commissioner to do that.

20. Mr. Abid Hasan Minto learned counsel for fourteen councillors has forcefully submitted that when the proceedings were conducted on 24‑10‑1992, the petitioner did not raise any objection regarding the genuineness of the requisition. He further submits that it was open to the petitioner to raise all legal and factual objections at the time when the proceedings were going on. In fact, according to him, the proceedings were conducted by the A.C. Samundri, respondent No.2 and petitioner was afforded opportunity to express his views as to the no‑confidence motion but he failed to avail this opportunity. 21. 1 find that the following is the part of the proceedings conducted by the A.C. respondent No.2 on 24‑10‑1992: Thereafter, the names of fourteen councillors are mentioned by A.C: respondent No.2.

22. The original undated application on which the aforesaid order dated 15‑10‑1992 was passed by the Deputy Commissioner has been shown to all the learned counsel and this has been perused by M/s Ch. Hamid‑ud‑Din and Ch. Muhammad Farooq Advocates for the petitioner. No serious objection has been raised as to this order except the submission was reiterated by the learned counsel for the petitioner that the Deputy Commissioner was bound to hold an enquiry into the matter regarding genuineness or otherwise of the requisition moved by the councillors.

23. The other contention of the learned counsel that no‑confidence move was at the instance of respondent No.3 and that the same is mala fide is neither here nor there. Firstly there is no evidence on the file of Writ Petition No. 10057‑92 that the Deputy Commissioner acted mala fide in ordering the convening of the committee and secondly even if the proceedings are initiated at the instance of respondent No.3 that would not invalidate the no‑confidence motion proceedings where the petitioner was present nor he raised such an objection.

24. Learned counsel Mr. Abid Hasan Minto submits that the election and no‑confidence is the right of the voters and no person can be imposed as against their will. According to him under rule 3 of the aforementioned rules, the authority to whom requisition under rule 2 is made shall within seven days of the receipt of such requisition convene a special meeting of the local council to consider the motion of no‑confidence. It is stated that seven days' time is given only for administrative convenience and not that the Deputy Commissioner should hold an enquiry into the genuineness or otherwise of the requisition particularly when no such application was filed by the present petitioner before the authority concerned. There seems to be considerable force in the reply of the learned counsel because such like objections can be taken up most appropriately at the time when no‑confidence motion is being considered.

25. In view of the arguments and counter‑arguments of the learned counsel, it is abundantly clear that there is no statutory obligation for the Deputy Commissioner to hold an enquiry as is contemplated by the learned counsel. In any case the Deputy Commissioner applied his mind while passing the aforesaid order dated 15‑10‑1992. 26, The contention that a connected writ petition, on the similar point, is pending and this may be heard alongwith that, also seems to be without any substance. The issues in the precedent case are different from one arising in the present case. Further, as stated by learned counsel Ch. Hamid‑ud‑Din, no confidence motion in the connected writ petition has already failed.

27. In Writ Petition No. 10589‑92 Ch. Muhammad Farooq, Advocate argued vehemently that proceedings dated 24‑10‑1992 were not conducted in a free atmosphere and the councillors were under the umbrella of armed persons and they had no free choice to exercise their vote. 28. 1 have gone through the report of respondent No.2 alongwith proceedings conducted on 24‑10‑1992 and plea of the learned counsel is not ‑supported by an iota of evidence in this regard. Copy of an application dated 24‑10‑1992 in the name of SHO, is submitted in this writ petition as Annexure `E' showing that the councillors were taken as hostages. No time has been mentioned in this application nor any complaint of this nature has been made to respondent No.2. There is also a copy of FIR No.6 dated 24‑10‑1992 to the effect that a case is registered with the Police Station Tandlianwala against some persons under the Surrender of Arms Ordinance, Further, there is also an affidavit by some of the citizens of Tandlianwala with the same allegations as contained in the application dated 24‑10‑1992 that the councillors were taken as hostages.

29. Mr. Abid Hasan Minto learned counsel for 14 councillors denies the aforementioned allegations and further states that all the councillors, voted against the petitioner, are present in the Court.

30. It is not possible for me to hold an enquiry into the disputed questions of facts as are urged by the learned counsel for the petitioner. Suffice it to say that no‑confidence motion was conducted by the A.C. Samundri‑respondent No.2 which shows that the councillors voted against the petitioner. Not only the A.C.‑respondent No.2 filed his report alongwith no‑confidence motion proceedings conducted on 24‑10‑1992 but the Deputy Commissioner also filed his parawise comments in the case. Both learned counsel for the petitioner have not controverted the reports submitted by respondents Nos.l and 2.

31. Learned counsel Ch. Muhammad Farooq also; relied on PLD 1983 Lahore 92 "Mian Muhammad Masud Ahmad v. Assistant Commissioner Kharian and 8 others" to show that the no‑confidence motion has to be proceeded strictly in accordance with the rules. In this case there was a violation of sub‑rules (2) and (4) of rule 3 of the Punjab Local Councils (Vote of No‑Confidence against the Chairman and Vice‑Chairman) Rules, 1980. According to sub‑rule (2) seven days' notice shall be given for the meeting convened under sub‑rule (I) whereas rule 4 talks about the publication of the notice of the meeting on a notice board.

32. The proceedings conducted on 24‑10‑1992 against the petitioner and filed in this Court by the A.C.‑‑respondent No.2 clearly show that none of these rules was violated. In this view of the matter the facts of the cited case are not relevant to the present writ petition.

33. Reliance is also placed on PLD 1976 SC 287 "Wali Muhammad and another v. The State" to show that the Court can take judicial notice of certain press reports. In Writ Petition No. 10589‑92 learned counsel has relied upon Annexures `H' and `J' which are news items dated 25‑10‑1992 and another dated 30‑10‑1992 to show that the voters did not exercise their vote freely. Whatever may be the position, I cannot hold an enquiry into this matter as already noticed. 34 It is stated by the learned counsel Ch. Muhammd Farooq that Sh. Muzaffar. Ali was responsible for initiating some proceedings against Rai Muhammad Hanif who was at one time Chairman of Town Committee Tandlianwala and who is the cousin of respondent No.3 Rai Rub Nawaz Kharal. In order to wreak vengeance the present proceedings are initiated at the instance of respondent No.3. In support of his contention he relied upon photostat copy of the letter dated 13‑7‑1992 issued by the Directorate of Anti Corruption, Lahore. Similarly there is a photostat copy of letter dated 23‑7‑1992 issued by the Chairman Town Committee, Tandlianwala to the Municipal Engineer to attend the enquiry proceedings against aforementioned Rai Muhammad Hanif.

35. Learned counsel Mr. Abid Hasan Minto submits that he does not hold any brief on behalf of respondent No.3, Rai Rub Nawaz Kharal, but he urges that there is no evidence on record that Rai Muhammad Hanif is the cousin of this respondent. According to him the first and foremost question is to examine if any violation or contravention of any rule has taken place in the present case. He vehemently contends that 14 councillors not only applied for convening the meeting but also freely exercised their choice to cast the vote against the petitioner. It is stated that none of the relevant rules has been violated in, this case and, therefore, it is wholly irrelevant to take into consideration the past proceedings against Rai Muhammad Hanif.

36. Ch. Hamid‑ud‑Din learned counsel for the petitioner also opposed the presence of Mr. Abid Hassan Minto, Advocate to address the Court. As already stated, he filed a C.M. No. 2696‑92 and the same was not opposed by Ch. Muhammad Farooq, Advocate. In these circumstances the application was allowed subject to all just exceptions. I am of the opinion that the objection of learned counsel is not sustainable as he was allowed to be heard in motion. As pointed out that Mr. Abid Hassan Minto did not specifically mention the names of the councillors to whom he was representing, although names were stated in his power of attorney. Learned counsel today has submitted a typed list of 14 councillors duly signed by him in continuation of his previous C.M. No. 2696‑92 to show that he is representing all the 14 councillors.

37. It is contended that the petitioner applied on 18‑10‑1992 for the supply of certified copy of the requisition but the same was not given to him as, a result of which the proceedings in question are rendered nullity in the eye of law. In reply to this paragraph in the writ petition, it is stated by respondent No.l that the said application was marked to the Assistant Director Local Government with the remarks "please put up" and handed over to the petitioner to contact the said Assistant Director for further necessary action. It is stated in the report that the petitioner never contacted the said officer nor presented the application in question in his office. In these circumstances the petitioner himself was to be blamed and no grievance could be made out later on account of non‑supply of the certified copy.

38. In any case the petitioner knew regarding the requisition moved against him when he participated in the proceedings on 24‑10‑1992 and also before that when notices were issued to different councillors including petitioner. In these circumstances there cannot be any legitimate grievance on this account as is urged.

39. In a democratic set‑up where the Government is run by the elected representatives the will of the voters is supreme to choose and elect a particular person. One of the jurists defined the word election in the following terms:‑‑ "Election is the act of choosing or selecting one or more from a greater number of persons, things, courses or rights. The choice of an alternative. The internal, free, and spontaneous separation of one thing from another, without compulsion, consisting in intention and will. The selection of one person from a specified class to discharge certain duties in a State, corporation, or society. With respect to the choice of persons to fill public office or the decision of a particular public question or public policy the term means in ordinary usage the expression by vote of the will of the people or of a somewhat numerous body of electors. `Election' ordinarily has reference to a choice or selection by electors, while `appointment' refers to a choice or selection by an individual." Learned counsel for the councillors, therefore, is very right in submitting that no‑confidence is the right of a voter.

40. There is a judgment (1982 SCMR 775) "Mian Mushtaq Ahmad. v. Deputy Commissioner, Sargodha and 11 others by the Supreme Court where in a case of no‑confidence it was held that the stark reality is that ten out of 11 members attending the meeting have expressed no‑confidence in petitioner and he was the only member who was in his own favour and in these circumstances interference was not made.

41. In the present case it is manifest from the proceedings that 14 councillors out of 19 decided no‑confidence motion against the petitioner and no case is made out warranting interference by this Court.

42. Net result of above discussion is that 16 councillors including the petitioner participated in the no confidence motion as is amply demonstrated in the report of the A.C., Samundri dated 5‑11‑1992 and there is no statutory violation or contravention of any of the rules under which the proceedings were conducted. .

43. For the foregoing reasons no case has been made out for the admission of these two writ petitions Nos.10057‑92 and 10589‑92 which are hereby dismissed in limine. Stay order granted by this Court on 21‑10‑1992 stands vacated. AA./M‑731/L Petitions dismissed.