2009 PLP 196 (CLC)

AKHTAR ZAMAN 'MALGHANI, J.

Following relief has been claimed in the instant constitutional petition:

(A) Declaring That the act of the respondent No.3 in summoning the Session of Tehsil Council Sorab for 2nd recall motion against the petitioner and thereafter sending the proceedings to the Secretary Local Government for its onward submission to the respondents Nos.1 and 2 for exercise of the authority under section 5 of the Local Government Ordinance, 2001, is totally illegal, improper without lawful authority and jurisdiction vested in him as well as in violation to the provisions of section 63(8) of the Local Government Ordinance, 2001, thus is of no legal consequences. (B) After having declared so, the respondents Nos.1 and 2 may be restrained not to take any action on the recommendation of the Secretary, Local Government, Balochistan, Quetta as the very calling of the 2nd Session for recall motion and proceedings conducted by the respondent No.3 against the petitioner was illegal, without lawful authority and jurisdiction. (C) Any other relief deemed fit and appropriate in the circumstances of the case, may also be awarded in favour of the petitioner along with the cost of petition, in the interest of justice, fair play and equity.

2. Briefly stated, facts of the case are that the petitioner was elected as Tehsil Nazim Soorab, District Kalat during the Local Body's Election, 2005. On 25-4-2008 respondents Nos.5 and 6 submitted an application to the Naib Nazim requesting therein that session of the council may be convened so that no-confidence motion can be moved against the Tehsil Nazim. It appears from record that on their application Naib Tehsil Nazim convened session of the council on 3-5-2008 wherein recall motion was approved by the majority of 9:3, copy whereof was sent for further action to the Secretary Local Government vide letter, dated 3-5-2008. The petitioner through this petition has challenged the proceedings conducted by Tehsil Council Soorab.

3. We have heard the learned counsel for petitioner and learned counsel for respondents as well as learned Standing Counsel. Learned counsel for petitioner vehemently contended that summoning of the session for second recall motion against the petitioner and thereafter sending the proceedings to the Secretary, Local Government for onward submission to respondents Nos. 1 and 2 for exercising authority under section 5 of the Local Government Ordinance, 2001 was totally illegal, improper and without lawful authority. He further contended that all the proceedings conducted in the session were in violation of subsection (4) of section 63 of Balochistan Local Government Ordinance, 2001, as such; no action on the basis of such illegal proceedings could be taken against the petitioner. He next argued that for success of recall motion 2/3rd majority of the total members of the house was required which was not available in the instant case. On the other hand learned counsel for respondents vehemently argued that the petitioner had alternate remedy by way of approaching Secretary, Local Government, as such; instant petition was not maintainable. He further contended that 2/3rd majority of the members of house had deposed no-confidence upon the petitioner, as such; legally and morally he was not competent to hold the office of Tehsil Nazim. He next argued that the proceedings were conducted in accordance with the relevant provisions of law, as such; petition was not maintainable.

4. We have carefully considered the contentions put forth by the parties' learned counsel in the light of relevant provisions of law. Section 63 provides procedure about recall motion in respect of Tehsil Nazim, according to which if in the opinion of a member of Tehsil Council there is reason to believe that Tehsil Nazim is acting against the public policy or the interest of the people or is negligent or responsible for loss of opportunity to improve governance and the delivery of services, he may, seconded by another member of council, give a notice to move motion in the Tehsil Council Nazim and on receipt of such notice Naib Nazim will summon session of the Tehsil Council not earlier that three days but not later than seven days if Tehsil Council is not already in session. In case Tehsil Council is already in session, then the motion is to be taken up for deliberation on the next date from its receipt by the Naib Tehsil Nazim. Subsection (4) of section 63 provides that where a motion is approved by 2/3rd majority of votes of the total membership of the Council through a secret ballot to be conducted by the Returning Officer nominated by the Chief Election Commissioner, the Tehsil Nazim shall cease to hold office forthwith and notification shall be issued in this behalf by the Chief Election Commissioner accordingly. Thus, is crystal clear from the language of subsection (4) that for approval of recall motion not only 2/3rd majority of total membership of the Council is required but the proceedings are also required to be conducted through secret ballot by a Returning Officer nominated by the Chief Election Commissioner nor through a secret ballot, as such approval of recall motion in Tehsil Council session dated 3-5-2008 was illegal and in clear violation of the procedure laid down in subsection (4) of section 63 of the Local Government Ordinance, 2001.

5. The learned counsel for respondents objected upon maintainability of the instant petition on the ground that alternate remedy was available to the petitioner before the Secretary, Local Government. After having gone through the provisions of Local Government Ordinance as well as Rules framed thereunder we find no substance in the said arguments as nowhere appeal or remedy before Secretary, Local Government is available under the Local Government Ordinance, 2001 or Rules made thereunder. The reliance of the learned counsel on sub-rule (4) of Rule 5 of Balochistan Local Government (Recall/No-confidence Motions against Nazims and Naib Nazims) Rules, 2007 was misplaced as said sub-rule is to be read with sub-rule (3) laying down that in case Naib Tehsil Nazim or the senior most Presiding Officer for any reasons refuses to receive the notice or fails to summon the session as prescribed by the Ordinance and Rules the member or the seconder who has given notice for motion, may apply to the Secretary, Local Government for convening the session. In view of what has been discussed above, we are inclined to declare approval of recall motion in Tehsil Council session on 3-5-2008 to be illegal, violative of law and without lawful authority, as such; is accordingly struck down. Petition disposed of. H.B.T./12/Q Petition accepted.