' Writ Petition No,5216 of 2003 is also being disposed of through this order as common questions of law and fact are involved in both these petitions. The writ petitions have been instituted by the parties opposing each other. Hereinafter the petitioners Qaisar Rashid Bhatti etc. Of Writ Petition No,2778 of 2003, are referred as petitioners and Ch. Ehsan Ullah, petitioner of Writ Petition No,5216 of 2003, who is respondent No,3 in Writ Petition No,2778 of 2003 is referred as respondent No,3.
2. The controversy between the parties is in regard to the conduct of day to day affairs of Tehsil Council (City), Gujranwala.
3. The petitioners are elected Members of Tehsil Council (City), Gujranwala and respondent No,3, Muhammad Ehsan Ullah Chaudhry (petitioner of Writ Petition No,5216 of 2003) is Naib-Tehsil Nazim of the aforesaid Tehsil Council. Before proceeding further, for convenience, I may mention, in brief, the relevant provisions of the Punjab Local Government Ordinance, 2001, hereinafter referred to as the Ordinance.
4. Section 65(3) of the Ordinance, provides that Naib-Tehsil Nazim shall be the Convener of the Tehsil Council, meaning thereby that the nieetings of Tehsil Council are to be convened by Naib- Tehsil Nazims. Subsection (1) of section 69 of the Ordinance provide that Tehsil Council shall regulate its business in accordance with the bye-laws made by it. Subsection (2) of the same section provides that Tehsil Council shall meet at least once in every month. Similarly, subsection
(4) of section 69 provides that all meetings of the Tehsil Council shall be presided over by the Naib-Tehsil Nazim. Subsection (5) of the same section further provides that in its first session, the Tehsil Council shall elect a panel of Presiding Officers, in order of precedence, of not less than three members who shall, in the absence of or in the case where a motion for recall of Naib-Tehsil Nazim has been moved, preside over the meetings of the Council. Section 152(1)(p) of the Ordinance provides that a person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he does not absent himself without reasonable cause from three consecutive meetings of the Council of which he is a member, provided that a member shall not be disqualified if the absence was necessitated by a national emergency or force majeure. Subsection (2)(b) of section 152 of the Ordinance provides that if it is found by the Chief Election Commissioner that a member of a Local Government has contravened the provisions of subsection (1) of section 152, such a member shall cease forthwith to be an elected member or to hold the office of such member office and stand disqualified from being a candidate for election to a Local Government for a period of four years and section 161 of the Ordinance provides the procedure of removal of a member, Nazim or Naib-Nazim, by th< Election Commission, on the application of any person or by the Chief Election Commissioner on his own motion, after issuance of show-cause notice, after holding an enquiry and after granting a reasonable opportunity of hearing, including personal hearing to such a member, Nazim or Naib-Nazim, as the case may be.
5. The Tehsil Council (City), Gujranwala, in its inaugural session/meeting held on 23-8-2001, presided over by respondent No,3/Naib-Tehsil Nazim, to meet the requirements of subsection (5) of section 69 of the Ordinance, vide its Resolution/Item No,3, elected four members panel to preside over the meeting of the Tehsil Council in the absence of Naib-Tehsil Nazim. In the same session, vide Resolution No,2, the Tehsil Council passed its bye-laws to regulate its business, as required by subsection (1) of section 69 of the Ordinance. The Tehsil Council, in fact, did not pass any fresh by-laws and merely adopted the previous Regulations made by Tehsil Council (City), Gujranwala, and sanctioned by the Commissioner, Lahore Division, Lahore, vide Notification No,BD- 82/4781, dated 4-6-1964, in pursuance of the provisions of section 123 of the Municipal Administration Ordinance, 1960. Regulation No,4(2) of the aforesaid Regulations, dated 4-6-1964 provided that a meeting may be called by the Nazim either on his own motion or on a requisition signed by not less than 1/4th of the total number of members of the Tehsil Council. The present Tehsil Council (City), Gujranwala, adopted the aforesaid Regulations with certain amendments, (the amendments have not been produced), subject to the conditions that if the Local Government and Rural Development Department of Government of the Punjab, itself prepares any bye-laws, then the Tehsil Council (City), Gujranwala, shall immediately stop the implementation of the Regulations dated 4th of June, 1964. It shows that if any model bye-laws are prepared by the Punjab Local Government and Rural Development Department, the Tehsil Council (City), Gujranwala, will immediately stop running its affairs under the Regulations; dated 4-6-1964 and shall adopt the bye-laws prepared by the Government. It seems that no such model bye-laws have been prepared by the Punjab Government for the guidance of Tehsil Councils.
6. It is alleged that after the inaugural session, the Tehsil Council (City), Gujranwala, held its monthly sessions in September, October, November, December, 2001 and January, February, March, April, May, 2002 and in the monthly session held on 22-6-2002, respondent No,3/Naib-Tehsil Nazim, absented himself and refused to convene monthly session, therefore, monthly sessions/meetings held on 31-7-2002, 29-8-2002. And 17-10-2002, were convened by Tehsil Nazim (not impleaded as a party), which were neither called by respondent No,3/Naib-Tehsil Nazim nor attended by him and these meetings were presided over by the panel elected in the inaugural session of 23-8-2001.
Similar position prevailed in the monthly meetings called by the Nazim in November, December, 2002 and January, 2003. It is further alleged that the Tehsil Council in' its monthly meeting/session held on 19-12-2002, called by Tehsil Nazim, passed Resolution No,4(1) against respondent No,3/Naib-Tehsil Nazim, to the effect that since he was absent successively from the last three meetings held on 31-7-2002, 29-8-2002 and 17-10-2002, he (respondent No,3) stood disqualified under section 152(1)(p) of the Local Government Ordinance, 2001 and had lost his seat. Copy of the resolution was sent to respondent No,1/Secretary, Punjab Local Government Commission/Punjab Local Government and Rural Development Department, Lahore. On the other hand, respondent No,3 also lodged a complaint with respondent No,1 to the effect that under the law, only, he, being Naib-Tehsil Nazim, was competent to convene and preside over the meetings of the Tehsil Council and the Tehsil Council was illegally convening and holding meetings called by Tehsil Nazim. The Secretary, Local Government, Government of the Punjab, therefore, vide his order, dated 25-1-2003, ordered an inquiry and the Director-General, Local Government, in compliance thereof, vide his order, dated 28-1-2003, appointed one Mr. Shahzad Ahmad Hameed, Assistant Director (Evaluation) at the Provincial Headquarter, as Inquiry Officer to conduct inquiry into the complaint made by respondent No,3 against aforesaid Resolution No,4(I) passed by Tehsil Council, disqualifying him. In continuation, Deputy Director (Evaluation), Local Government, vide his letter, dated 28-1-2003, informed the Tehsil Nazim of the aforesaid actions taken by the Secretary and the Director-General, Local Government and further directed Tehsil Nazini not to convene any meeting of Tehsil Council till the completion of the inquiry process. The Tehsil Nazim, vide letter, dated 8-2- 2003, informed the Director-General, Local Government, of the meeting convened by respondent No,3 on 29-1-2003 in spite of the restrain order passed by the Government and also 'sought guidance. It has further been alleged before me that on 29-1-2003, out of 91 members of Tehsil Council (City), Gujranwala, only one Lady Councillor attended the meeting and rest boycotted.
Respondent No,3/Naib-Tehsil Nazim again called a meeting for 8-3-2003. Resulting in the institution of the present Writ Petition No,2778 of 2003, by the petitioners, who are elected members of Tehsil Council (City), Gujranwala. And they seem to be belonging to the group of Tehsil Nazim, who has neither come forward himself nor has been impleaded as a party to the petition, The petitioners have prayed as follows:- "It is, therefore, prayed that this Court may be gracious enough to declare that impugned order or requisition of respondent No,3 for convening meeting of the Tehsil, Council on 8-3-2003 and also of any other meetings in the subsequent months under his orders of directions are without lawful authority and of no legal effect. It is further prayed that by an appropriate direction while restraining respondent No,3 from convening meetings of the Tehsil Council (City), Gujranwala in future in the present circumstances', respondents Nos.I and 2 be directed to convene monthly meetings as required by law and the bye-laws referred to above so as to advance public interest created by the present deadlock. Pending the decision of this writ petition, the impugned order or requisition by respondent No,3 may kindly be suspended and monthly meetings may be allowed to be held to be presided over by panel of Presiding Officers in terms of section 69(5) of the Ordinance of 2001 and in terms of other enabling provisions of law, rules or bye-laws including bye- law No,8 of the Regulations fort uct of Business of Tehsil Council (City), Gujranwala. Any other relief which this Honourable Court may dee fit and proper may also be granted."
7. During thef Pendency of the writ petition, the Inquiry Officer/Assistant Director (Evaluation), 0/0 Director-General, Local Government completed his inquiry and submitted his report, whereby it was found that the functions of Tehsil Council/Tehsil Municipal Administration (City), Gujranwala, were not being performed in accordance with the provisions of Chapter V and VI of the Punjab Local Government Ordinance, 2001. It was pointed out that certain irregularities had been committed by the Tehsil Nazim, Naib-Tehsil Nazim and Tehsil Municipal Officer. Following it regularities were specifically pointed out by him:--
(i) Tehsil Council bye-laws for conduce of meeings are contrary to the Punjab Local Government Ordinance, 2001.
(ii) The bye-laws for the conduct of business of Tehsil Council passed on 23-8-2001 were authenticated by the Nazim, whereas as per law, the same should have been authenticated by the NaibTehsil Nazim.
(iii) The agenda of the monthly meetings have been signed, issued and convened by the T.M.O.
And not by the Naib-Tehsil Nazim/Convenor.
(iv) The minutes book mostly remained in the possession of T.M.O. Instead of the Council Office of the Tehsil Council which is against section'69(8) of the Punjab Local Government Ordinance, 2001.
(v) The Naib-Tehsil Nazim has failed to make necessary arrangements to convene monthly meeting of the Tehsil Council as provided under section 69(2) of the Punjab Local Government Ordinance, 2001.
(vi) On 29-1-2003 a meeting of Tehsil Council was convened besides clear instructions of the Government not to hold meeting on 29-1-2003.
8. The Local Government and Rural Development Department, vide its letter No,SOV(LG)2-4/2002, dated 10-3-2003 communicated by Section Officer-V, on 12-3-2003, informed the Tehsil Nazim and the Naib-Tehsil Nazim, about the above said inquiry report (duly approved) and the aforesaid irregularities and directions were issued to them to desist from repeating such irregularities and they were further directed to re-formulate the bye-laws for the conduct of Tehsil Council in consonance with the provisions of the Ordinance as required under section 69(1) of the Ordinance.
9. The case of the petitioners is that under the law, respondent No,3 is no more Naib-Tehsil Nazim of Tehsil Council (City), Gujranwala and is no more a member of Tehsil Council because he absented himself successively from three monthly meetings of the Tehsil Council and he, therefore, stands disqualified under section 152(1)(p) of the Ordinance and the Resolution No,4(1) dated 19-12-2002 was competently passed by Tehsil Council. It is also the case of the petitioners, as argued before me, that the Tehsil Council, under section 69(1) of the Ordinance, for regulating its business, can make/pass any bye-laws and the Regulations, dated 4-6-1964, mentioned above, were competently adopted by Tehsil Council, in its inaugural session on 23-8-2001, as its< bye-laws and the Regulation No,4(2) of the aforesaid Regulation provides that a meeting may be called by the Nazim either on his motion or on a requisition signed by not less than 1/4th of the total number of members of the Tehsil Council and the same has been lawfully approved and, therefore, the meetings were being competently, and lawfully convened by Tehsil Nazim and were being properly presided over by the elected panel in accordance with subsection (5) of section 69 of the Ordinance, in the absence of the Naib-Tehsil Nazim, who has already ceased to be NaibTehsil Nazim and member of the Tehsil Council. It has been very, strenuously argued before me that stalemate situation arose because respondent No,3/Naib-Tehsil Nazim, finding himself in the minority, deliberately absented himself from the compulsory monthly meetings of the Tehsil Council and refused to perform his legal duty of convening the monthly meetings and in such a situation, Tehsil Council correctly acted under aforesaid Regulation No,4(2), under which a meeting can be called by Tehsil Nazim either on his own motion or on a requisition signed by not less than 1/4th of the total member of members of the Tehsil Council and the Local Government cannot compel Tehsil Council to change its bye-laws. It has further been argued, in support of the aforesaid Regulation No,4(2), that the Punjab Local Government Ordinance, 2001 does not provide a guidan, '! In a situation like the one in hand where the Naib-Tehsil Nazim deliberately and in a mala fide manner refuses to convene a meeting or deliberately absents himself from such a meeting and therefore, Regulation No,4(2) of the aforesaid Regulations is a valid bye-law, which is an answer to such a situation. ' Reference has also been made to Regulation No,8 of the aforesaid Regulations dated 4-6-1964, which reads as under:-- "8. Presiding Officer.--- (1) In the absence of the Naib-Nazim, the members present shall choose by a majority vote any one of the members present to preside over the meeting.
(2) The person presiding at a meeting shall, if he not be the NaibNazim, have all the powers of the Naib-Nazim."
10. In the end, it is submitted that the meetings were lawfully and properly convened and held in the absence of the Naib-Nazim and in case, this Court comes to the conclusion that Naib-Tehsil Nazim is still the office-holder, he may be directed to perform his lawful duty and regularly call/convene monthly meetings of Tehsil Council and preside over the same.
11. On the other hand, respondent No,3/Naib-Tehsil Nazim has instituted Writ petition No,5216 of 2003, which is also being disposed of through this common order after hearing his learned counsel.
12. Respondent No,3, in his writ petition, has prayed that the meetings held in his absence, not convened by him, proceedings taken, matters decided therein, may be declared to be illegal, without lawful authority and void and has further sought a direction to Tehsil Nazim and Tehsil Municipal Officer (respondents Nos.2 and 3 in his petition), to provide the staff/officials/establishment for the office of City Tehsil Council. His learned counsel, while vehemently opposing Writ Petition No,2778 of 2003 and while supporting his writ petition, has submitted that under the law, the respondent No,3, Ch. Ehsan Ullah, is still the Naib-Tehsil Nazim, Tehsil Council (City), Gujranwala, he cannot be removed under the law by the members of Tehsil Council through a resolution, which matter falls within the exclusive jurisdiction of Chief Election Commissioner, under subsection (2) of section 152 of the Ordinance, 2001 and under section 65(3) and section 69(4) of the Ordinance, he/Naib-Tehsil Nazim is the only one who can convene monthly meetings of the Tehsil Council and preside over the same.
13. I have heard at length, at this pre-admission stage, the learned counsel for the petitioners, the learned counsel of respondent No,3, the learned Assistant Advocate-General representing respondent No,1, the learned counsel of respondent No,2/Tehsil Municipal Officer and have also gone through the relevant record, copy of which is attached with these petitions, as well as report and comments furnished by respondents Nns.1 and 2.
14. I am of the. View that the petitioners as well as respondent No,3/Naib-Tehsil Nazim are partially at fault.
15. The Tehsil Council (City), Gujranwala, unlawfully and illegally treated respondent No,3 as having ceased to be Member and Naib-Tehsil Nazim of the aforesaid Tehsil Council, on the alleged ground that he successively absented himself from three monthly meetings of the Tehsil Council held on 31-7-2002, 29-S-2002 and 17-10-2002 (which were admittedly not convened by him) and thus, stood disqualified under clause (p) of subsection (1) of section 152 of the Ordinance. No doubt, the provision referred above provides that a person shall be call end to hold an elective office or membership of Local Government, if he does not absent himself without reasonable cause from three consecutive meetings of the Council of which he is a member, provided that the said person shall not be disqualified if the absence was necessitated by a national emergency or force majeure but subsection (2) of section 152 of the Ordinance provides that the order of his removal on the basis of such disqualificatian is to be passed by the Chief Election Commissioner and section. 161 of the Ordinance provides for the procedure of removal of a Nazirri, Naib-Nazim or a member by the Election Commission of Pakistan or by an Authority authorized by it, on an application made by any person to the Chief Election Commissioner or by the Chief Election Commissioner on his own motion, after issuance of show-cause notice, after holding an enquiry, and after affording reasonable opportunity of being heard. Including personal hearing, if so requested to the person concerned. This shows that the Tehsil Council (City), Gujranwala, on its own, could not have treated respondent No,3 as having been disqualified and removed as member and Naib-Tehsil Nazim. Resolution No,4(I), dated 19-12-2002, being heavily relied upon by the petitioners, is declared to be ineffective against respondent No,3 and it is held that respondent No,3 is member and Naib-Tehsil. Nazim of Tehsil Council (City), Gujranwala.
16. Section 65(3) of the Ordinance provides that Naib-Tehsil Nazim shall be the Converter of the Tehsil Council and subsection (4) of section 69 of the Ordinance provides that all meetings of Tehsil Council shall be presided over by the Naib Tehsil Nazim. Tehsil Council, therefore, cannot lawfully hold meeting, which has not been convened by Naib-Tehsil Nazim. Therefore, it is declared that the meetings, which B were not convened by respondent No,3, were illegally held by Tehsil Council (City), Gujrahwala. The aforesaid Tehsil Council may, however, ratify, in lawfully convened meetings, businesses transacted and resolutions passed in any such previous meetings, which were not lawfully convened It is clarified that the panel of Presiding Officers elected by the Tehsil Council, in pursuance of subsection (5) of section 69 of the Ordinance an 'preside over the meetings of the Telisil Council lawfully called and convened by Naib-Tehsil Nazim and cannot preside in the absence of Naib Tehsil Nazim, only if such meetings have been over the meetings of the Tehsil Council, which have not been lawfully convened. Subsection (5) of section 69 further clarifies that the aforementioned panel of Presiding Officers shall preside over the meetings of Tehsil Council, even in the presence of Naib-Tehsil Nazim, in case where a motion for recall of Naib- Tehsil Nazim has been moved. In the instant case, no such motion for the recall of the.Respondent No3 has been moved in a lawfully convened meeting, therefore, the elected panel of Presiding Officers, at present, cannot preside over the meeting, which has not been convened by respondent No,3 and the said panel may, in future, preside over the meetings of Tehsil Council, if initially, in a lawfully convened meeting of Tehsil Council, even in the presence of respondent No,3, a motion for recall of respondent No,3 is moved.
17. In view of the above mentioned, Regulation No,4(2), being part of Regulations; dated 4-6-1964, referred above and adopted by the Tehsil Council (City), Gujranwala, permitting the convening of meetings by the Tehsil Nazirn, either on his own motion or on a requisition signed by not less than 1/4th of the total number of members of the Tehsil Council, is declared to be illegal being in contravention of subsection (3) of section 65 of the Ordinance. Similarly, Regulation No,8 of the aforesaid Regulations, dated 4-6-1964, which have been adopted by the Tehsil Council (City), Gujranwala, is declared to be illegal being in contravention of subsections (4) and (5) of section 69 of the Ordinance. It may be mentioned here that under section 196(2) of the Ordinance only those previous rules, regulations and bye-laws made under the repealed Punjab Local Government'
Ordinance, 1979, have been saved and continued, which are not inconsistent with the provisions of this Ordinance. The Tehsil Council (City). Gujranwala, has been correctly ordered by the Government functionaries to reformulate its bye-laws in accordance with the provisions of the Ordinance. The Government of Punjab, Local Government and Rural Development Department, may, on its own, consider the framing of model bye-laws for providing guidance to Tehsil Councils.
18. Section 65(3) of the Ordinance provides that the meetings are to be convened by the Naib- Tehsil Nazim. Subsection (4) of section 69 of the Ordinance provides that all meetings of Tehsil Council shall be presided over by the Naib-Tehsil Nazim. Subsection (2) of same section of the Ordinance provides that Tehsil Council shall meet at least once in every month. Respondent No,3/Naib-Tehsil Nazim is, therefore, under a statutory duty to convene the meetings of Tehsii Council, at least once a month. He is, therefore, directed to convene meetings of Tehsil Council (City), Gujranwala, at least once in every month and as there is a very serious allegation against him that he is deliberately not convening monthly meetings, he is further directed to convene the next monthly meeting of the Tehsil Council (City), Gujranwala, with a compliance report to the Registrar of this Court.
19. In the end, it may be mentioned that the argument of the learned counsel for the petitioners that the Punjab Local Government Ordinance, 2001, does not provide guidance where the Naib- Tehsil Nazim deliberately and in a mala fide manner refuses to convene a meeting or deliberately absents himself from such a meeting, has no force. Subsection (5) of section 69 of the Ordinance provides the answer. The panel of elected Presiding Officers, elected by the Tehsil Council, in pursuance of this legal provision, can preside over the lawfully convened meetings of Tensil Council in the absence of Naib-Tehsil Nazim and the said panel can also preside over the lawfully convened monthly meetings of Tehsil Council, even in the presence of Naib-Tehsil Nazim, where a motion for recall of Naib-Tehsil Nazim has been moved and where a motion for recall of Naib- Tehsil Nazim is proposed to be moved but the Naib-Tehsil Nazim deliberately declines to convene such a meeting the aggrieved persons/members can approach the Court of law for forcing Naib- Tehsil Nazim to convene meeting.
20. These petitions are accordingly dispos..d of with above directions and observations.