P L D 1983 Peshawar 123 (PLP)

MUHAMMAD ISHAQ KHAN, J.--‑This Constitutional petition under Article 9 of the Provisional Constitution Order, 1981 has been filed by the petitioner Behram Khan and‑Syed Sardar Ali Shah for a declaration to the effect that the Special Meeting of the Municipal Committee, Kohat, convened under the Chairmanship of respondent No. 2 on 21‑10‑1982 whereby the so‑called no‑confidence vote by respondents 5 to 11 against petitioner No 1 from the office of the Chairman and petitioner No. 2 from the office of the Vice -Chairman of Municipal Committee, Kohat, was passed, was convened in violation of N.‑W. F. P. Local Council Chairman and Vice‑Chairman (Vote of No‑Confidence) Rules, 1980, and was thus convened and held without lawful authority and jurisdiction ; that the subsequent Notification No. A. O. (L. G.) 18(5)/80, dated 2‑11‑1982 of respondent No. 1 whereby the offices of the petitioners were declared vacant and re‑election for such offices was fixed for 8‑I1‑1982 is also without lawful authority, and jurisdiction as the said Notification was also issued iii violation of N.‑W. F. F'. Ordinance IV of 1979 and also the Rules made thereunder and is thus void and ineffective: and that similarly the programme issued by respondent No. 2 vide his order No. 3268‑77, dated 2‑11‑1982 for the re-election and oath is also ineffective, illegal, void and unlawful. The petitioners further prayed that on acceptance of this petition the Special Meeting dated 21‑10‑ 1982 of Municipal Committee, Kohat, convened by respondent No. 3 and presided over by respondent No. 2 and attended by respondents 5 to 11 be declared unlawful and void, and the subsequent Notification be also set aside. The petitioner also prayed that they be allowed to perform their functions as Chairman and Vice‑Chairman of Municipal Committee, Kohat, till such time that either their term expires or they are ousted from the offices by No‑Confidence Vote in accordance with the Rules and law. The facts out of which the present petition arises are, that in pursuance of N.‑W. F. P. Ordinance 1V of 1979 known as `N.‑W. F. P. Local Government Ordinance, 1979' Municipal Committee, Kohat was constituted with 12 Councillors out of them, ten Councillors were elected from the Wards and one Councillor each was subsequently elected by the Councillors on the reserved seats for women and minorities ; that the election of one of the Councillors namely Malak Nisar was later on declared void by the Election Tribunal and his seat was declared as vacant, that the said Councillor filed a writ petition in this Court, which is sill pending ; that similarly, the office of Nawab Chand, Minority Councillor, was also declared vacant by respondent No. 1 and the said Councillor also filed a writ petition in this Court, which is still pending ; that in view of the above, the total number of the Councillors of the Municipal Committee, Kohat, was left to 10 ; that 7 members out of the 10 named as respondents 5 to 1I on 7‑10‑1982 addressed a motion for no‑confidence to the petitioners ; that both the petitioners referred the matter to respondent No. 3 ; that respondent No. 3 convened a special meeting and ordered that the same shall be held at 10 a.m. on 21‑10‑1982 for considering the vote of no‑confidence against the petitioners ; that the petitioners challenged the orders of respondent No. 3, referred to above, before this Court by way of W. P. No. 461/82 on 19‑10‑1982, which was admitted to full hearing by a Special D.‑ B. of this Court and 'notice was issued under the C. M. accompanying the writ petition and comments of respondent No. 3 were called ; that since this Court did not grant interim relief on the C. M. and did not stay the holding of the special meeting dated 21‑10‑1982, the Special Meeting of .M. C., Kohat was held at 10‑00 a.m. on 21‑10‑1982 under the chairmanship of respondent No. 2, which was attended by respondents 5 to 11 and the vote of no confidence was passed against both the petitioners ; that the petitioners on 23‑10‑1982 filed a C. M. before this Court for permission to amend their writ petition in view of the developments of the special meeting dated 21‑1‑1982, but this Court held that as the writ petition was directed against the orders of respondent No. 3 dated 14‑10‑1982, and since the special meeting has been held on 21‑10‑1982, the writ petition has become infructuous ; that because of the unlawful meeting dated 21‑10‑1982 respondent No. 1 on 2‑11‑1982 issued Notification No. A. O. (L. G.) 18 (5)/80 where the proceedings of the special meeting dated 2I‑10‑1982 were approved and the offices of the petitioners (Chairman and Vice‑Chairman of M. C., Kohat) were declared as vacant and respondent No. 2 was appointed as Presiding Officer for holding re‑election on 8‑11‑1982 and also directed him to administer oath of office to the newly elected Chairman and Vice‑Chairman on the same date ; and that in pursuance of the aforesaid Notification respondent No. 2 on the same date i.e. 2‑11‑1982 issued notices to the Councillors for holding re‑election for the seats of the Chairman and Vice‑Chairman of Municipal Committee, Kohat. Hence, the present petition. Learned counsel for the petitioners contended that under section 36 of Ordinance 1V of 1979 vote of no‑confidence against the Chairman and Vice‑Chiarman can be passed in the prescribed manner by 2/3 majority of the total number of the Member of the Local Councillors and as the petitioners were elected as Chairman and Vice‑Chairman by the 12 members constituting Municipal Committee Kohat, therefore, 2/3 Majority would be 8 members and not less at any cost ; that order dated 14‑10‑1982 of respondent No. 3 in respect of the convening of the meeting was also without jurisdiction for the reason that respondents 5 to 11 did not make a formal call on respondent No. 3 as is required by sub‑rule t2) of rule 3 of the "Vote of No Confidence Rules, 1980" ; that according to rule 3(3) of the above said Rules, respondent No. 3 had to give 7 clear‑days' notice for convening the special meeting but in the instant case order in respect of special meeting was issued by respondent No. 3 on 14‑10‑1982 and the meeting was fixed for 21‑10‑1982 ; that the Director‑General of the Local Government and Rural Development (Mr. Khalid Mansoor) respondent No. 3, comes from Kohat and is related to respondent No. 6 Manzoor Ahmad Paracha, who is the opposition Leader of the petitioners, and because of the influence of said respondent No. 3, law and the Rules have been openly violated ; that it was the legal and statutory duty of respondent No. 1 to have scrutinized the legality of the special meeting before issuing the impugned order/Notification dated 2‑11‑1987 but he failed to discharge the legal functions ; and that the entire action of respondents is based on mala fide. On the first hearing of the writ petition, it was ordered by this Court that comments be furnished within a week's time by respondents 1 and 3 and under C. M: No. 557/82, the election was ordered not to be held till the next date of hearing. But on the subsequent hearing, as the comments of respondents had not been received, further time of a fortnight was given to them and under C. M. No. 557/82 status quo was ordered to continue. However, notice was issued in C. M. No. 578/82 to the respondents. Respondents 1 to 3, however, submitted their comments and a perusal thereof shows that all of them have stressed on sub‑rule (2) of Rule 6 of the "N: W. F. P. Local Councils Chairman and Vice‑Chairman (Vote of No Confidence) Rules, 1980" and we reproduce the same as under : ‑ "A declaration made by the Chairman of the meeting under sub‑rule (1) shall be final and shall not be questioned in any proceeding." The above rule shows that finality is attached to the declaration to the Chairman of. the meeting, who, in the instant case is respondent No.

3. He in his comments has totally denied the allegations of the petitioners and has further asserted that Mr. Khalid Mansoor, against whom the petitioners have levelled the allegations that he is related to respondent No. 6 and he has on account of this relationship violated the law and rules in the re‑election of the Chairman and Vice‑Chairman, was on study tour abroad i.e. Kenya and Saudi Arabia during the whole proceedings, and therefore, the question of his influence in the matter did not arise. Respondent No. 2, on the other hand has categorically asserted that the record of the Municipal Committee, Kohat does not show that the petitioner i.e. Chairman and Vice‑Chairman of the Municipal Committee, Kohat, were elected by the 12 members. No such entry has been made in the proceedings register, nor any Resolution is available in the office. The petitioners have also failed to prove that 12 members had actually participated in their election as Chairman and Vice‑Chairman. The petitioners have in para. I of their writ petition admitted themselves that on account of vacation of two seats, one of Malik Nisar and the other of Nawab Chand, the total number of the functioning Councillors was left to

10. As such, the vote of no‑confidence motion, moved by the seven members out of them, constitute a majority of 2/3 members as required under section 36 of Ordinance IV. of 1979. The same section is, however, reproduced below for ready reference: "A Chairman or Vice‑Chairman shall vacate office if a vote of no‑confidence is passed against him in the prescribed manner by two‑third majority of the total number of members of the Local Council electing him." Therefore, we hold that 2/3 majority at the tune of moving the motion of no confidence against the petitioners was seven members and not eight, as claimed by the petitioners. Besides this, it‑is admitted by the petitioners in their body of writ that respondent No. 3 called a special meeting vide order dated 14‑10‑1982 for 21‑10‑1982, which shows that 7 days clear notice was given by him for convening the special meeting and the learned counsel for the petitioners failed to rebut the same. Respondent No. 3, in his comments has also stated that due to the absence of Chairman and Vice‑Chairman, the petitioners the salaries of the staff were held‑up and the work of the Local Council had come to a stand still and it was, therefore, necessary to initiate prompt action to which no mala fide can be attributed. Therefore, we hold that the petitioners have also failed to prove any mala fide on the part of the respondent No. 3 in convening a special meeting. On the view of the matter that we take, we hold that the learned counsel for the petitioners has failed to prove any mala fide on the part of respondent No, 3 in convening a special meeting ; that 2/3 majority of the members of the Local Council, Kohat, at the time of passing motion of No‑Confidence, was 7 and not ; 8 and that this Court was not bound to grant stay asked for by the petitioners We are supported in this view by a case Mian Arif Iftikhar v. Election Tribunal, West Pakistan and another (P L D 1968 Lah. 1387) and B also the authority of the Supreme Court of the Pakistan, Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and 2 others (PLD 1966 SC 1). As such, this writ petition is without any merits and the same is hereby dismissed in limine. Status quo granted on 7‑11‑1982 under C. M. No. 557/82 and notice issued on 23‑11‑1982 under C. M. No. 578/82 are hereby vacated. M. A. K. Petition dismissed.