P L D 2018 Peshawar 179 (PLP)

SYED MUHAMMAD ATTIQUE SHAH, J.

The petitioners through instant writ petition have approached this Court with the following prayer: "That, in the light of above facts and circumstances it is humbly prayed that an appropriate writ may kindly be issued:

1. To declare the proceedings of meeting of Tehsil Council Balakot dated 09.07.2017 conducted by respondent No.11 as illegal, against the rules, procedure and law, besides of no legal effect against the rights of the petitioner

2. That, impugned resolution dated 09.10.2017 may kindly be declared as against the law, rules, procedure and being unconstitutional and of no binding effect upon the petitioners and the impugned resolution may kindly be ordered to be struck down.

3. That, the respondents Nos.2 to 8 may kindly be restrained to take any adverse action against the petitioners on the basis of impugned resolution.

4. That, respondents Nos.3 to 8 may kindly be restrained to issue any notification affecting the rights of petitioners and respondents Nos.3 to 8 may kindly be further restrained to issue any notification and announce any schedule of election.

5. Any other relief which this Honourable Court deemed fit and proper in the circumstances of the case."

2. Brief facts leading to filing of the present writ petition are that the petitioners were elected as Tehsil Nazim and Naib Nazim, respectively, for Tehsil Council, Balakot during the Local Councils Elections of 2015; that on 09.10.2017, when the petitioners came to their offices, there they came to know about the meeting convened by respondent No.2, (Secretary of the Council) for No Confidence Motion, moved by respondents Nos.9 and 10 against the petitioners; that the petitioners were not served with any notice nor they were provided any agenda for the said meeting; that the petitioners requested to the Presiding Officer (respondent No.11) that the proceedings of No Confidence Motion should be conducted in accordance with law provided for the said purpose, however, respondent No.11 in blatant violation of law conducted the said proceedings; hence the present writ petition.

3. This Court also issued notice to the worthy Advocate General in terms of Order 27-A vide order dated 17.10.2017. In response to the said Notice learned Additional Advocate General appeared on behalf of worthy Advocate General and assisted the Court.

4. Learned counsel for the petitioners argued that the resolution of No Confidence Motion passed against the petitioners is illegal, based on mala fide, as neither the petitioners were issued any notice regarding the said Motion nor they were provided any agenda for the said meeting by respondent No.2; he further urged that the entire proceedings of No Confidence Motion were carried out in clear violation of the law available on the subject, hence, the same are void ab-initio and thus are liable to be struck down.

5. Learned counsel appearing on behalf of the respondents, however, strongly controverted the arguments of the learned counsel for the petitioners and argued that the entire proceedings were conducted in accordance with law and no illegality has been committed by respondent No.2 as well as respondent No. 11, which needs no interference by this Court in its Constitutional jurisdiction. Learned AAG while assisting the Court supported the proceedings of No Confidence Motion and has urged that no illegality or irregularity has been committed by the Council in this regard. He argued that no doubt clause 13(5) of the Bye-Laws provides time frame for voting on No Confidence Motion, however, the said provision of the Bye-Laws was suspended by the House under clause 170 of the Bye-Laws before voting on the said motion. He further argued that as the petitioners have lost confidence of the House, therefore, they cannot impugned the said proceedings of No-Confidence Motion before this Court.

6. Arguments of learned counsel for the parties heard and record of case perused with their able assistance.

7. Perusal of the record reveals that respondent No. 10 and 11 moved a No Confidence Motion against the petitioners through notice dated 04.10.2017 submitted by them to respondent No.2, who called meeting of the Council for 09.10.2017. The Council on the very date passed the said resolution against the petitioners. It is worth mentioning that procedure of voting on no-confidence has been envisaged under section 84 of Khyber Pakhtunkhwa Local Government Act, 2013, (hereinafter referred to as Act) for the sake of convenience section 84 is reproduced as under: "S.84 Vote of no-confidence: A Nazim and Naib-Nazim, shall cease to hold 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 ascertained through open division: Provided that (a) a motion of no-confidence shall not be moved before the expiry of six months of his assumption of office as Nazim and Naib-Nazim; and (b) Where a motion of no-confidence against a Nazim and Naib-Nazim has been moved and has failed to secure the requisite majority of votes in its favour at the meeting, no similar motion shall be moved against him before the expiry of six months from the date such motion was moved".

8. It is also worthy to note that prescribed manner has been provided by model bye-laws (2015) framed under section 113 of the Khyber Pakhtunkhwa Local Government Act, 2013 (Act). Section 113 of the "Act" is reproduced for the sake of convenience. "Section 113 of the "Act": (1) A district council, tehsil council, village council and neighborhood council may, in their ambit of responsibilities, make bye-laws to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such bye-laws may provide for all or any of the matters specified in Part-II of the Seventh Schedule: Provided that the Government may make model bye-laws on any, some or all of relevant subjects for the sake of uniformity".

9. Under the above referred section 113 of the Act, 2013, the Tehsil Council (Procedure and Conduct of Business and Meetings) (Model) Bye-Laws, 2015, (Bye-Laws) were framed, wherein, Chapter-V of the said Bye-Laws deals with the election of Nazim, wherein, clause 13 provides procedure for resolution of vote of No Confidence against the Nazim. For the sake of ready reference, the provisions of said clause are reproduced as follows: "

13. Resolution of Vote of No-Confidence against the Nazim. (1) Subject to provisions of the Act and Rules, a member may give notice to the secretary in writing for resolution of No Confidence against the Nazim. (2) The Secretary shall enter the resolution in the name of the member concerned in the list of Business for the first working day after the expiry of one clear day of receipt of notice and, as soon as may be, circulate the notice to all the members. (3) Leave, to move the resolution, shall be asked after questions, if any, and before other business enter in the list of Business is taken up. (4) When the resolution is moved, the Presiding Officer may, after considering the state of business, allot a day or days for discussion on the resolution. (5) The resolution shall not be voted upon before the expiry of three days, or later than seven days, from the day on which the resolution is moved in the Council. (6) Before voting on the resolution, the Nazim will be given an opportunity to address the Council for clarification of allegation(s) if any. (7) Voting on the resolution shall be by open division which shall be held in such manner as the Presiding Officer may direct. (8) The Council shall not be prorogued until the resolution is disposed of or, if leave is granted, the resolution has been voted upon."

10. Since the case of the Petitioners is that neither any notice of the meeting scheduled for voting on No Confidence Motion was given to them nor the said meeting was conducted in the mandatory time frame as provided under the Bye Laws stated above, hence it would be appropriate to first determine the status of the said Bye- Laws to have any statutory force to make its strict adherence mandatory. The combined reading of sections 113 and 84 of the Act, reproduced above, would clearly show that the Bye-Laws have been framed under the Authority of Act; hence we hold that the same has the statutory force. The perusal of the time frame as provided in sub-clause 5 of Bye Law 13 appears to be mandatory as the same has been couched in negative language clearly mentioning, " the resolution shall not be voted upon before the expiry of three days, or later than seven days, from the day on which the resolution is moved in the Council."

11. It is evident from the record, that meeting of the council was held on 09.10.2017 at 11.00 AM, which was presided over by respondent No.11 and on the same date resolution of No Confidence Motion was passed against the petitioners. Under Clause-3 of the Bye-Laws, it has been clearly provided that when the Council is convened at the short notice or in case of emergency, the Secretary shall also intimate the date, time and place of the meeting to the members through other quick means of communication. However, it also transpires from record of the case that the petitioners have not been served by respondent No.2 with any notice regarding the said meeting of the Council. Moreover, clause 13(4) of the Bye-Laws provides that when the resolution is moved, the Presiding Officer may, after considering the state of business, allot a day or days for discussion on the resolution. Whereas, clause 13(5) of the said Bye-Laws envisages that the resolution shall not be voted upon before the expiry of three days, or later than seven days, from the day on which the resolution is moved in the Council. When this Court placed the proceedings of the No Confidence Motion in juxta position with the said Bye-laws, it is observed that the proceedings have been conducted in utter disregard and in violation thereof. It is by now well settled principle of administration of justice that where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a technicality. In this respect reliance is placed on case titled 'Muhammad Anwar v. Mst. Ilyas Begum' (PLD 2013 SC 255). Moreover, Article 4 of the Constitution provides that all individuals are to be dealt in accordance with law. It is very much evident from the proceedings of the No Confidence Motion that the petitioners have not been dealt with in accordance with the law.

12. Before dilating upon the arguments of learned AAG that the Council has suspended the provisions of clause 13(5) under clause 170 of the said Bye-Laws for the purpose of voting on the resolution on the same date when it was presented before the Council, this Court, for the sake of convenience and ready reference, would like to reproduce clause 170 herein below: "170: Suspension of Bye-Laws: Whenever any inconsistency or difficulties arises in the application of these Bye-Laws, any member may, with the consent of the Presiding Officer, move that any clause may be suspended in its application to a particular motion before the Council and if the motion is carried the clause in question shall stands suspended. Granted, that the Presiding Officer has the authority to suspend the application of any clause of the Bye-Laws, but exercise of such authority by him is subject to any inconsistency or difficulty in the application of the Bye-Laws. However, after going through the entire proceedings, it is nowhere mentioned that there was any difficulty or inconsistency in the application of the provisions of Bye-Laws at the time of conducting the said proceedings. Similarly, it is also not clear from record of the said proceedings that the above referred provisions had ever been suspended by the Presiding Officer for the purpose of voting on the Motion. 12(sic). Thus, in view of the above stated peculiar facts and circumstances of the case and discussion made thereupon, this Court reached at the conclusion that the impugned proceedings of the No Confidence Motion were carried out in utter disregard and violation of Clause 13 of the Bye-Laws, thus, on acceptance of instant writ petition, the same are set aside and the matter is referred back to the respondent No.2 to place the said resolution before the Council for further proceedings, strictly in accordance with the above referred Clause 13 of the Bye-Laws. C.M. No.841-A/2017 This CM has been moved by the petitioners for suspension of the operation of Notifications dated 17.10.2017, 18.10.2017 and 19.10.2017 issued by respondents during pendency of the present writ petition. As this Court has already set aside the impugned proceedings of No Confidence Motion, therefore, all the Notifications issued during the pendency of the writ petition also stands set aside. This CM is disposed of, accordingly. ZC/240/P Petition allowed.