2004 PLP 287 (CLC)

Writ petition No. 15294 of 2003, decided on 6th November, 2003.

Ss. 156(3)(5) &186(2)

Vacancy of Tehsil Nazim or Naib-Nazim-- Holding of election for such seat on officiating basis under orders of Secretary, Local Government and District Coordination Officer-- Validity

House had to elect its officiating Naib-Nazim to run the affairs of Council, till the same, was filled in through bye-election to be conducted under orders of Chief Election Commissioner--For holding election' for such seat on officiating basis, no other provision existed in Punjab Local Government Ordinance, 2001 except S.186(2) thereof-- Holding of election for such seat on officiating basis under orders of the Secretary, Local ,Government and District Coordination Officer would not be violative of any provision of the .Ordinance

Such arrangement would be- in conformity with spirit of law and democracy to run the affairs of .Council during transitory period through officiating Naib Nazim, if he enjoyed support of majority of the House

Bye-elections would be held under orders of Chief Election Commissioner, while vacancy of Tehsil Nazim or Naib-Nazim could be filled in for officiating purposes through election under orders of Secretary, Local Government. Dr. Khalid Ranjha. and Rana Muhammad Arif for Petitioner. Briefly the case of the petitioner is that he is member of Tehsil Council, Pattoke by virtue of being Naib-Nazim of Union Council No. 85 Baghiana Tehsil Pattoke District Kaiur. Naib-Nazim Tehsil Council resigned oft 13-8-2003 to participate in the election of Nazim. On submission of his resignation office of Naib-Nazim became vacant. Seat of Tehsil Nazim was filled in through bye election on 8-9-2003 whereby Rana Muhammad Ishaque Khan was elected as Tehsil Nazim who took over the charge on 17-9-2003. Nazim belongs to petitioner's group. He started probe into the illegalities committed by his opponents. Respondent No.l issued notification for election of officiating Naib Nazim of Tehsil Council Pattoke on 25-10-2003. Respondent No.2 published the schedule for meeting of Tehsil Council to elect its officiating' Tehsil Naib-Nazim on 27-10-2003 and election was held on 28-10-2003. Mirza Sajjad Baig respondent No.4 was elected by majority as officiating Naib-Nazirn of Tehsil Council Pattoke and notified on 29-10-2003.

2. Dr. Khalid Ranjha and Rana Muhammad, Arif learned counsel for the petitioner contend that there is no provision in the Punjab. Local Government Ordinance, 2001 for election of officiating Naib-Nazim of Tehsil Council; The holding of election pursuance to order of respondent No.1 is illegal and nullity in the eye of law. They further submitted that only-the Election Commission of Pakistan is competent to hold election of Tehsil Naib-Nazim. The Notifications, dated 25-10-2003 and 29-10-2003 are illegal and same be declared without lawful authority and

3. Heard. Record perused. On 3-11-2003 case was adjourned for 18-11-2003 petitioner submitted Civil Miscellaneous No. 1744 of. 2003 for suspension of operation of the Notification dated 29-10-2003 issued in favour of respondent No.4. Civil Miscellaneous was ordered to be put up on 6-11-2003 and the date of hearing of the main case was also shortened with the concurrence of learned counsel for the petitioner for 6-11-2003. Subsection (2) of section 186 of the Ordinance provides than the concerned Council can elect officiating Nazim and Naib-Nazim from amongst its members until their-seats are filled in through bye election: The Notification issued by respondent No.l for filling in the seat of officiating Tehsil Naib-Nazim is in conformity with aforesaid provision of .the Ordinance. There is no other provision in the Ordinance for holding of election of officiating Tehsil Naib-Nazim. The vacant seat of Naib-Tehsil Nazim is to be filled in through bye election within as far as practicable 120 days of occurrence of vacancy in terms of subsection (5) of section 156 of the Ordinance. The bye elections are to be held under subsection (3) of section 156 of the Ordinance by the Chief Election Commissioner. `Holding of election of officiating Naib-Tehsil Nazim under the orders of respondents Nos.1 and 2 is not violative of any provision of the Ordinance. It is in conformity with the spirit of law and democracy that the affairs of the Council are run effectively during the transitory period through officiating Naib-Nazim if he enjoys the support of majority in the house. Admittedly respondent No.4 is supported by majority in the House. He has been duly elected to act as officiating Naib-Nazim. No illegality has been committed by the respondents in holding the election of officiating Naib-Nazim.

4. The contention of the petitioner that election could only be held by the Chief Election Commissioner and the respondent No. l was not competent is devoid of any merit The bye elections are held under the orders of the Chief- Election Commissioner but the vacancy of Tehsil Nazim or Naib-Nazim can be filled in for officiating purposes through election under the orders of respondent No. l The House has to elect its officiating Naib-Nazim to run the affairs of the Council till it is filled in through bye election to be conducted under the orders of the Chief Election Commissioner. The holding of election under the orders of respondents Nos.1 and 2 in these circumstances is not violative of any provision of the Ordinance. The petition has no merit and is dismissed in limine. S.A.K./M-2369/L Petition dismissed.