2008 PLP 640 (CLC)

KHURSHID ANWAR BHINDAR, J.

Through this single order, I intend to dispose of Writ Petition No.106 of 2008 and Writ Petition No.122 of 2008/BWP, as common questions of law and facts are involved in both of them.

2. Grievance voiced in these constitutional petitions is that a recall motion was moved against the petitioners on 10-1-2008 and fixed the date for 11-1-2008. Precise contentions of the learned counsel for the petitioners are that procedure adopted in the recall motion by respondent No.4 is against the norms of justice as enunciated in section 85, subsection (7) of the Punjab Local Government Ordinance, 2001 and as per this provision of law prior notice was to be given to the petitioners before deliberations on the recall motion and a right of audience should also have been given to the petitioners to defend themselves before the house which was also not given to the petitioners.

3. Pursuant to the order, dated 25-1-2008 passed by this Court, respondent No.4 has submitted the report and parawise comments which reveal that the requisite notices were duly served on the petitioners through ordinary process and by courier service. He has also stated that respondent No.5 was duly elected by the house to preside over the meeting of recall motion. He has also stated that Naib Nazim never passed any order for fresh notice to Nazim rather on 11-1-2008 he refused to, preside over the meeting in respect of recall motion. He further submitted that the house duly elected Muhammad Iqbal respondent No.5 to preside over the meeting. He has submitted in the comments that both Nazim and Naib Nazim have different status in the Punjab Local Government Ordinance, distinct and different procedure of recall motion has been provided against them.

4. I have heard the learned counsel for the parties as well as the IA learned Law Officer. Admittedly, respondent No.4 has proved in the Court with an evidence in the shape of original receipts that the notices were served upon the Nazim and Naib Nazim for the purposes of initiating proceedings of recall motion as enunciated in section 85, subsection (7) of the Punjab Local Government Ordinance, 2001. As the mandatory requirement of law has duly been fulfilled and no illegality has been committed by respondent No.4, as mentioned in the report and parawise comments, therefore, petitioners are not entitled to any relief in the constitutional petition as all the formalities and requirements of mandatory provisions of law have been fulfilled before initiating recall motion by respondent No.4. Moreover, much water has flown as I have been told by the learned Law Officer as well as learned counsel for the respondents that after passing the recall motion, the matter had been referred to the Provincial Election Commissioner who vide his order, dated 22-1-2008 has appointed Mr. Rashid Nawaz, Civil Judge/Judicial Magistrate, Chishtian as Returning Officer for the aforesaid purpose. Even otherwise factual controversy has been raised by the petitioners in these constitutional petitions, which exercise cannot be undertaken in these proceedings. Reliance is placed on Muhammad Iqbal v. Fazal Muhammad 1989 SCMR 1602 and The Presiding Officer v. Sadruddin Ansari and another PLD 1967 SC 569, as such, disputed questions of fact cannot be gone into in writ proceedings. Writ is only to be issued where record itself shows that authority concerned failed to discharge his duty, therefore, on this score also, the writ petitions are liable to be dismissed. As such, the matter has almost attained finality, therefore, there is no merit in these constitutional petitions which are hereby dismissed. H.B.T./F-4/L Petition dismissed.