2005 PLP 1769 (CLC)

The petitioner being an elected Nazim of Ravi Town, Lahore filed this writ petition under Article 199 of the Constitution of Pakistan whereby he called in question validity of order, dated 13-12-2004 passed by respondent No.3 on direction of respondent No. 1.

2. Respondent No.3 passed the order on 13-12-2004 on behalf of respondent No.1 whereby he directed respondent No.2 to seal the office of the petitioner. The learned counsel for the petitioner contends that the said order dated 13-12-2004 is based on, mala fide and without jurisdiction. The learned counsel further adds that since the petitioner belongs to the opposition, therefore, he is being politically victimized. He further adds that there is no provision in the Punjab Local Government Ordinance, 2001 to authorize respondent No.3 to pass the impugned order. In addition to above, the learned counsel contends that it is a statutory and legal right of the petitioner to complete the term to which he is being denied. The impugned order is reproduced as under: -- "I have been directed to intimate you that proceedings under anti-corruption laws are in progress against Town Nazim, Ravi Town, Lahore. I have been further directed to advise you to please seal the office of the. Nazim and intimate him that he should ntlt act in his office till further orders from the Government. "

3. Learned Additional Advocate-General, Punjab was directed to obtain a report from respondent No.

1. The report has been submitted by respondent No.

1. According to the report, the petitioner is involved in a case of embezzlement, Anti-Corruption Establishment, Punjab requested to pass necessary orders to stop the petitioner from using his official powers so that the case against the petitioner could be finalized in accordance with law. It is further contended that if the petitioner is allowed to sit in the office he might tamper with the record and damage the inquiry proceedings. For convenience, the report submitted by respondent No.1 is reproduced as under:-- "Briefly stated, the Additional Director, Anti-Co Establishment, Lahore Region, Lahore vide letterer dated 11-12-2004, (Annexure "A") informed that F.I.R. No. 183 dated 27-11-2004 under sections 420/468/471/409/218, P.P.C. read with section 5(2)47, P.C.A. Police Station A.C.E. has been registered against the Officer/officials of Ravi Town, Lahore. The accused Town Municipal Officer, Town Officer (I&S), and Town Officer (Finance), Ravi Town, Lahore have been arrested. The arrested officers have pointed out that the Town Nazim, Ravi Town (Petitioner) has also been involved in the alleged embezzlement of funds etc. The record collected and scrutinized by the technical and investigating team of Anti-Corruption Establishment has also revealed the involvement of Town Nazim (petitioner) in the said embezzlement. A number of witnesses in their statements have alleged the Nazim for taking commission being head of gang. The Town Nazim, Ravi Town (Mr. Aamer Munir) has not joined the inquiry despite repeated notices. Thus, Additional Director, Anti-Corruption requested the LG&RD Department for the issuance of necessary orders to seize the powers of Town Nazim, Ravi Town till the completion of the enquiry. "

4. In support of the above report, the learned Additional Advocate-General, Punjab contends that section 197 of the Punjab Local Government Ordinance (hereinafter called the Ordinance) permits such an order but later on refers to section 152(o) to support the impugned order.

5. I have heard the learned counsel for the parties and given my anxious consideration to their arguments.

6. In my judgment, there is no provision in the Ordinance which authorizes the respondents to pass such an order. Section 159 ensures the term of office. An incumbent may be deprived or refused to complete the term if he is recalled or removed as contemplated under section 161 of the Ordinance. Section 152 relates to qualification for candidates and elected members. The petitioner is not a candidate and no proceedings have been initiated against him under section 152 of the Ordinance. By passing the impugned order, the T.M.O. has been directed to seal the office of the petitioner as he is involved in a corruption case.

7. Another aspect of this case is, how a Secretary, Government of the Punjab or a Deputy Secretary can seal the office of an elected person and thereby deprive him to perform his functions as an elected person under the Ordinance? The learned Additional Advocate-General, Punjab again could not point out any such provision in the Ordinance. The power of removal is found in section 161 of the Ordinance. This section empowers Election Commission to pass such an order in a case where proceedings of disqualification under section 152 have been initiated on B an application made by any person or by Chief Election Commission himself against a member, Nazim and Naib Nazim. The Election Commission may issue a notice to show cause to a member, Nazim and Naib Nazim as the case may be, within a specified period as to why proceedings against him may not be taken for his removal. Even section 161 does not authorize Chief Election Commissioner to seal the office of an elected Nazim straightaway. Section 161 further requires inquiry and thereafter Election Commission may pass an order of removal on the basis of outcome of such inquiry. The learned counsel for the petitioner has aptly alluded to Malik Ahmad Khan Awan v. The Election Commission of Pakistan 2004 CLC 1143.

8. In view of the above, the impugned order is set aside and declared as without lawful authority and of no legal effect.

9. During the pendency of this writ petition the local bodies have been dissolved and a new schedule of election for local bodies has been announced. Therefore, despite declaring the impugned order unlawful, the petitioner cannot be restored to his office. Now new elections have been announced. The people of the constituency, are going to be provided an opportunity to elect their Nazim in near future. This observation is also necessary to avoid any confusion.

10. The writ petition is allowed in the above terms. S.A.K./A-516/L Petition accepted.