DOST MUHAMMAD KHAN, J.---Nihayatullah petitioner through this Constitutional petition seeks that the internal recall motion/vote of no-confidence dated 7-7-2003 passed against him by the majority of the councillors and the subsequent Notification issued by the Secretary to Government of N.W.F.P. Local Government Department, Peshawar dated 6-7-2003 bearing No,A.O/LG/LCB/6- 7/2003 be declared as unlawful, without jurisdiction, in disregard of law, ineffective and of no legal effects.
2. Arguments heard in length and record perused.
3. Short but relevant facts are that in expressing no-confidence in the petitioner as Nazim Union Council, Dosehra the majority of the councillors moved internal recall motion against him which was firstly fixed on 5-5-2003 but due to absence of the petitioner it was postponed to 28-5-2003.
Again it was postponed because the petitioner obtained an injunction order from the Civil Judge concerned. The status quo order thus issued was ultimately vacated by the learned District Judge in appeal on 1-7-2003 which order was upheld by this Court in Civil Revision 562 of 2003 vide judgment dated 8-7-2003. Consequently meeting of the councillors for that purpose was held on 7th July, 2003 and the resolution of no confidence, now described as internal recall motion by the provision of section 85 of the N.-W.F.P. Local Government Ordinance, 2001, was tabled, deliberated upon and was passed by the majority of the councillor i,e, 14 out of 17.
4. The Officiating Zilla Nazim on receiving the result of counts of vote failed to discharge his statutory obligation as he did not notify the result as required under subsection (5) of section 85 of the N.-W.F.P. Local Government Ordinance, 2001.(Ordinance No,XIV).
5. Confronted with this statutory and legal deadlock, the Provincial Government was approached by the council through its Naib Nazim vide application dated 16-7-2003 and it intervened in the matter by issuing the impugned notification dated 16-7-2003 thereby declaring that the petitioner has ceased to be Nazim of Union Council, Dosehra with immediate effect.
6. The learned counsel for the petitioner came out with two-fold contentions firstly, that on the date when the impugned notification was issued by the Provincial Government the constitution of the neighborhood council was in the final stage and in view of the mandatory requirements of subsection (4) of section 85 of the ibid Ordinance, the internal recall motion so passed should have not been acted upon rather the process must have been deferred till the complete constitution of neighborhood council whose approval/consent to the resolution bras essential requirement of law and that when the District Officiating Nazim has refused to issue the required Notification, the Provincial. Government was not competent under the law to step in into the arena by assuming authority and jurisdiction which did not vest in it.
7. We have considered both the contentions in view of the law on the subject.
8. It is not denied that the petitioner has lost the confidence of the majority of the councillors. The internal recall motion was deferred many times as discussed above but the petitioner failed to improve his position rather he opted for battling on other fronts.
9. The legal importance of the plea that whether the Provincial Government was competent under the law in issuing the impugned notification loses importance when the negative conduct of the District Government (Officiating Zilla Nazim) is seen and judged. Under the provisions of subsection
(5) section 85 of the Ordinance the District Government/Zilla Nazim has no option or authority whatsoever to refuse the issuance of notification once an internal recall motion is passed by A the majority. As the law has made it obligatory for the District Government/Zilla Nazim to issue the notification as the word 'shall" has been used in subsection (5). The question as to whether neighborhood council was constituted or not or whether there was any irregularity in the proceedings of the meeting for that end, the aggrieved person i,e, the petitioner could move the Court of law but for all legal and practical purposes the District Government has no authority to adjudicate upon this issue one way or the other as the law has not vested any such power in it. It is not a privilege but statutory duty is enjoined on District Government to issue the required notification as soon as the internal recall motion thus passed by majority is received by it, it has no second option but to comply with the law in its letter and spirit.
10. The District Government/Zilla Nazim, therefore, was legally not correct in refusing to notify the result and his refusal in this regard is an act coram non judice and without lawful authority.
11. No prudent mind much less judicial one would endorse an act of an authority or statutory functionary which is in flagrant disregard of law non judice or unllity in the eye of law thus seen from all legal angles as soon as the approved internal recall motion was received by the District Government/Zilla Nazim it took legal effects and refusal on its part to notify it certainly amounts to defy the law, therefore, not issuing the notification by it has no legal effects rather to the contrary as soon as the approved recall motion was handed over to it, it has become effective and operative in the field. On legal premises the petitioner shall be deemed to have ceased to hold office from that date. If any different interpretation is placed on the provision of subsection (4) of section 85 of the Ordinance that would put a clog on the Union Council statutory right to remove its Nazim or Naib Nazim from office in the laid down manner till the time when the neighbourhood council is constituted. In other words it would amount to impose upon them the office-bearers against their wishes and consent for unlimited time/period in those areas where neighourhood councils are not in existence. The plea raised if is allowed would have a very negative, damaging and hurting effect on the entire system and would be an unreasonable approach to the problem. The intention of the Legislatures as it appears from the said provision is that the approval from neighbourhood council of a vote of no-confidence would be mandatory only when it exists at the relevant time. The fundamental principle of construing and interpreting statute is that Court shall strive in search of that interpretation which advances the cause and suppress mischief. The contention of the learned counsel for the petitioner clearly runs counter to this fundamental principle, therefore, cannot be accepted in the larger interest of the public, the elected representatives as well as principle of judgment.
Sub-Article (2) of Article 5 of the Constitution in a firm commanding language has made it obligatory for every citizen to show respect and obedience to the Constitution and law this defiance shown to the provision of law by the District Government is an act which is ultra vires of the Constitutional command and mandate of law, therefore, it is void ab initio and cannot be used by the petitioner for his protection in usurping public office to which he is not entitled thus he also does not deserve any relief from this Court in Constitutional jurisdiction. In support of the above view the principle enunciated by the Hon'ble Supreme Court in the case of "Wali Muhammad and others v. Sakhi Muhammad and others" (PLD 1974 SC 106) may be cited. It is well-settled principle that High Court's writ jurisdiction can be invoked in aid of justice and not to help retention of ill- gotten gains. For what has been discussed above this petition being devoid of legal merits is dismissed.