2019 PLP 1236 (CLC)

MUZAMIL AKHTAR SHABIR, J.

Through instant constitutional petition, the petitioners have prayed as follows: "It is, therefore, most humbly and respectfully prayed that instant writ petition may kindly be accepted and impugned letters dated 12.12.2018 for so-called no confidence motion be declared against the law and facts and, in the consequence of letters dated 12.12.2018, the holding of special meeting on 22.12.2018 in Committee Hall, Pasrur may very kindly be declared illegal, unlawful, void ab-initio and while setting aside the letters dated 12.12.2018, in the supreme interest of justice. It is further prayed that entire proceedings of motion, agenda, meeting and presiding of the house by the designated appointee may very kindly be declared as illegal and against the facts, law and rules."

2. The brief facts of the case are that the petitioners were elected as councilors in Local Government Elections, 2015 from their respective Wards at Pasrur Municipal Committee, District Sialkot, where-after elections for the executive body of Municipal Committee, Pasrur were held in which the petitioners contested for the seats of Chairman and Vice-Chairman respectively and were declared as returned candidates. On 16.11.2018 respondent No.10 moved an application for summoning meeting of the house for considering requisition for vote of no confidence against the petitioners which was subsequently withdrawn by him on 04.12.2018. Thereafter, respondent No.9 moved an application for the same purpose on 06.12.2018 with respondent No.3 whereupon the said respondent issued notices to the petitioners. During pendency of the said application, respondent No.9 filed W.P. No. 254685 of 2018 before this Court which was disposed of vide order dated 10.12.2018 with a direction to respondent No.3 to decide the matter in accordance with law directing respondent No.9 to appear before the said respondent on 17.12.2018. However, respondent No.3 issued the impugned letter dated 12.12.2018 for convening meeting regarding consideration of no confidence motion against the petitioners for 22.10.2018, hence, this petition.

3. Learned counsel for the petitioners has contended that without following the law and mandatory procedure prescribed under the Punjab Local Governments (Vote of No-Confidence) Rules, 2018 ("Rules") and order passed by this Court on 10.12.2018, respondent No.3 has issued notice for convening the meeting for considering no confidence motion against the petitioners even before the date of hearing before the said respondent fixed by this Court, consequently, the said notice is liable to be set-aside.

4. Conversely, learned A.A.G. as well as learned counsel for respondent Nos. 9 and 10 have defended the order passed by respondent No.3 dated 12.12.2018 by claiming that the same has been passed in accordance with law.

5. Heard. Record perused.

6. The admitted facts are that the petitioners are Chairman and Vice-Chairman of the Municipal Committee, Pasrur ("MC") and a no confidence motion has been moved by some of the members of the MC against them. On receipt of requisition by the members for no confidence motion against the petitioners, the Deputy Director, Local Government and Community Development Department, Sialkot in his capacity as Presiding Officer issued notice to the members on 12.12.2018 on the subject to meeting regarding consideration of vote of no confidence against the Chairman in the following terms: "MEETING REGARDING CONSIDERATION OF VOTE OF NO CONFIDENCE AGAINST MR. ALTAF SHAFI CHAIRMAN MUNICIPAL COMMITTEE, PASRUR DISTRICT SIALKOT. With reference to the application submitted by Rana Zahid Hussain, General Councilor and signed by 24 Councilors of Municipal Committee, Pasrur District Sialkot dated 6th December, 2018 in this office, and Writ Petition No. 254685 of 2018 titled Rana Zahid Hussain v. Secretaiy Local Government and others the Honourable Justice Muzamil Akhtar Shabir, Lahore High Court Lahore has directed to decide the afore said application of the petitioner in accordance with law, rules and policy on the above subject. Whereas, an application filed to consider of vote for no confidence against Mr. Altaf Shafi, Chairman, Municipal Committee, Pasrur District Sialkot, under Punjab Local Government (Vote of no Confidence) Rules, 2018 notified on dated 04.06.2018, a meeting for the purpose has been called for on 22.12.2018 (Saturday) at 10.00 A.M. in the Municipal Committee Hall, Pasrur under the convenorship of the undersigned as Presiding Officer. You are hereby called upon to participate in the meeting on the above referred said date time and venue for the purpose. "A notice under Rule 6(4) of Punjab Local Government (No. Confidence Motion) Rules, 2018 has already been sent to the Chairman Municipal Committee, Pasrur District Sialkot vide this office letter No. DDLG-18/3047 Dated 07.12.2018 for offering personal explanation regarding allegation contained in no confidence motion application." Note: A copy of application of no confidence motion is attached herewith." A Similar notice was also issued in relation to vote of no confidence against the Vice-Chairman. In the afore referred notice, reference has been made to office letter No. DDLG-18/3047 dated 07.12.2018 whereby notice for offering personal explanation was issued to the Chairman and Vice-Chairman in the following terms: "APPLICATION TO CONSIDER VOTE OF NO CONFIDENCE MOTION AGAINST THE CHAIRMAN, MUNICIPAL COMMITTEE, PASRUR. It is to inform that Rana Zahid Hussain, Member Municipal Committee Pasrur along with other 24 members (copy enclosed) has moved an application on 06.12.2018 for No Confidence Motion against you leveling allegations of misconduct and nepotism. In pursuance of 6(4) of the Punjab Local Govt. (VOTE OF NO CONFIDENCE) Rules, 2018, you are hereby informed that you have the right to offer your personal explanation either verbally or in writing about the above said requisition before or in the meeting to the Presiding Officer, the date of meeting which will be intimated later on." The afore referred notices dated 12.12.2018 have been called in question before this Court in its constitutional jurisdiction having been issued without following the proper procedure as prior to issuance of said notices, the petitioners were not provided opportunity of hearing.

7. The question for determination before this Court is that whether the petitioners were to be provided an opportunity of hearing before placing the said no confidence motion against them before the House. To determine the said question, reference may be made to section 35 of the Punjab Local Government Act, 2013 ("Act") which is reproduced below: "Section 35: Vote of no-confidence.

(1) Subject to this section, a Mayor, Deputy Mayor, Chairman or Vice-Chairman of a local government, other than that of an Authority and of a Union Council, 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 government. (2) A motion of no-confidence shall not be moved before the expiry of one year of his assumption of office as the Mayor, Deputy Mayor, Chairman or Vice-Chairman. (3) Where a motion of no-confidence against the Mayor, Deputy Mayor, Chairman or Vice-Chairman has been moved and fails for want of the requisite majority of votes in a meeting, no similar motion shall be moved against him before the expiry of one year from the date when such motion was moved."

8. Section 35 ibid refers to vote of no confidence to be passed in a prescribed manner. Section 144 of the Act provides that the government may subject to previous publication and by notification in the official gazette make rules for carrying out the purpose of this Act and such rules may provide for all or any of the matters specified in part 1 of 7th Schedule wherein entry No.1 provides for framing of rules for local government for conduct of elections, entry No.13 for conduct of elected officials and entry No.17 provides for framing of any other set of rules necessary for implementation of this Act. In exercise of powers conferred by Section 144 of the Act, the Governor of the Punjab has been pleased to make rules relating to no confidence motion against an elected official by the nomenclature "the Punjab Local Governments (Vote of No-Confidence) Rules, 2018". The Rule 2(e) of the Rules defines Presiding Officer as an officer appointed under Rule 5 of the Rules to preside over meeting to consider motion of no confidence which as per Rule 5(b) in case of a Municipal Committee is to be the Deputy Director, Local Government of the concerned District. The Rule 3 prescribes for requisition for convening of meeting which provides that a requisition in writing signed by not less than one half of the total number of members of a local government, may be moved for convening a meeting to consider the motion of no-confidence against Chairman and Vice-Chairman of the concerned authority mentioned in sub-rule (2) which in case of a Municipal Committee is Deputy Director of a Local Government concerned. No reason is required to be provided for moving a requisition for meeting to consider the motion for no-confidence. Rule 4 of the Rules provides that the Deputy Director of the Local Government on receipt of requisition under Rule 3 is required to convene a meeting of Local Government within 07 days to consider motion of no confidence, for which 07 days prior notice is required to be given to the members of the Local Government which is to be served in the manner provided in Sub-rule (3) of Rule

4. Rule 6 provides that any member who had signed the requisition may move a motion for no confidence against the Chairman or the Vice-Chairman and if motion is seconded, it shall be considered by the Local Government. The Sub-rule (4) provides that Chairman or Vice-Chairman against whom a motion of no confidence is moved shall have a right to offer a personal explanation either verbally or in writing and where a written explanation is offered it shall be circulated amongst the members and form part of the record of proceedings of the meeting where after voting shall be carried out in terms of Rule 7 and result is to be declared in terms of Rule 8.

9. Learned counsel for the petitioner has stressed upon the fact that before requisitioning the meeting of the house of the Local Government for convening the meeting for the purpose of considering no confidence motion, they have not been provided opportunity of hearing in terms of Rule 6(4) of the Rules. Besides it is argued that there was express direction passed by this Court in W.P. No. 254685 of 2018 on 10.12.2018 to provide hearing to all the concerned before deciding the application filed by respondent No.9 to requisition the meeting of the house, therefore, the said order is liable to be set-aside. As regards that first contention of the petitioners is concerned that they have not been provided opportunity of being heard in terms of Rule 6(4) of the Rules before placing the matter before the house for consideration of no confidence motion, suffice it to say that the said Rule is not applicable to proceedings before the Presiding Officer under Rule 4(1) of the Rules when he is to decide on which date the meeting is to be called for considering the motion, however, the said Presiding Officer is to notify the person against whom no confidence motion is to be placed before the house to defend himself which notices have already been issued to the petitioners requiring them to defend themselves in the meeting to be held on 22.12.2018. Moreover, proceedings under Rule 4(1) do not require issuance of notice for hearing to the person against whom no confidence motion is filed before taking a decision within 07 days prescribed by rules for fixing date of convening the meeting. However, the meeting is to be convened after at least 07 days prior notice to members of the Local Government including the persons against whom the motion for no confidence is under consideration, which requirement has been sufficiently complied with through notices dated 12.12.2018 and 07.12.2018 intimating the members of fixation of the meeting on 22.12.2018 and informing the petitioners in terms of Rule 6(4) of the Rules to offer personal explanation either verbally or in writing about the said requisition before or in the meeting. Consequently, issuance of notice to the petitioners before fixing a date for considering the motion of no confidence against them was not a legal requirement, non-compliance of which would render the impugned notice as illegal or without jurisdiction.

10. The second submission of learned counsel for the petitioners is that this Court vide order dated 10.12.2018 had directed respondent No.3 to provide hearing to all concerned including the petitioners before passing order on application filed by respondent No.9 to requisition meeting which has not been complied with. The said order of this Court is reproduced below: "Submits that the petitioner has moved an application, available at page 18 (Annexure "B") of this petition, with respondent No.2 for convening meeting to consider motion of no confidence against respondent Nos. 3 and 4 which is not being processed without any legal justification. Seeks a direction for early disposal of the same.

2. In view of the above, respondent No.2/Deputy Director, Local Government and Community Development Department, Sialkot is directed to decide the afore referred application of the petitioner in accordance with law, rules and policy after providing opportunity of hearing to the petitioner and all the other concerned within a period of 15 days from receipt of the order of this Court. In order to regulate further proceedings, the petitioner shall appear in the office of the said respondent on 17.12.2018 at 11:00 a.m.

3. With these observations, this petition stands disposed of." The said order clearly provides that the application filed by respondent No.9 is to be decided in accordance with law and rules and concerned persons be heard before passing any order. As already stated above, Rule 4(1) provides for decision on application for requisitioning meeting by the Presiding Officer, Deputy Director in this case, within 07 days of receipt of the same. The law does not provide for deciding the said application through a hearing process wherein all the members including persons against whom requisition has been made are to be heard. Therefore, in terms of Rule 4(1) ibid the petitioners were not the concerned persons entitled for a prior hearing in terms of order earlier passed by this Court. Consequently, non-provision of hearing to them before passing the order by the Deputy Director is of no consequence. Even otherwise, this Court to regulate further proceedings had directed respondent No.9 to appear in the office of the Deputy Director on 17.12.2018 to regulate further proceedings in case the said officer had not further processed the matter but that fixation of date did not prevent the Deputy Director to decide the matter in terms of Rule 4(1) requiring him to pass an order within 07 days even prior to the date fixed by this Court for respondent No.9 to appear in his office. Besides the purpose of the order dated 10.12.2018 passed by this Court was to direct the Deputy Director to decide the matter in accordance with law and rules and was not to circumvent the timeframe prescribed by Rule 4(1) for decision of the matter. Therefore, the order of this Court has sufficiently been complied with and no exception to the order passed by the Deputy Director can be taken on the ground that said order had been passed prior to the date fixed by this Court for respondent No.9 to appear in his office. Moreover, where a law requires a thing 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 a mere technicality for extending the timeframe fixed by the Rules even if some date subsequent to said date was fixed by Court for appearance of the concerned parties before the relevant officer. Reliance in this regard, is placed on Shahida Bibi and others v. Habib Bank Limited and others (PLD 2016 SC 995) and Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255). Besides no prejudice would be caused to the petitioners because they have the right to defend the no confidence motion filed against them before the house in the meeting fixed for the said purpose. Consequently, no ground to interfere in the impugned order is made out.

11. For what has been discussed above, this petition being devoid of any merit is dismissed. MH/A-4/L Petition dismissed.