' AMIR HANI MUSLIM, J.--- The petitioner through this petition has challenged the Resolution, dated 5-6-2003 of the respondent No,1 on the basis of which the Notification, dated 11-6-2003 was issued by respondent No,2 whereby the petitioner was unseated as Naib-Nazim, Union Council No,2, Qasimabad, Hyderabad (hereinafter referred to as the "said Council").
2. Brief facts as pleaded in the petition are that the petitioner in the year 2001 was elected. As Naib- Nazim of the said Council and since then he was performing his function as Naib-Nazim. It is pleaded that Nazim of the said Council who was elected with the petitioner resigned from the office whereafter one Zahid Hussain, an elected General Councilor of the said Council was holding the office as Acting Nazim and the business of the said Council was carried out through the said Acting Nazim. It is further pleaded in the petition that the Acting Nazim whom he never consented to hold the office of Acting Nazim, was against him. He submits that even the Taluka Nazim did not like the petitioner who used to raise voice for public demands and at times the petitioner was threatened by the Acting Nazim that he would be unseated as NaibNazim.
3. On 5-6-2003 a meeting of the Union Council was called for consideration of usual agenda. After that as per agenda was complete, the Acting Nazim of the Union Council took out a letter from his pocket and started reading that one member of the Council Mr. Lal Bux Bagrani has sought to move motion of vote of no-confidence against the petitioner, inter alia, on the ground that the petitioner was not working for welfare of the people and was delivering political speeches in the meeting of Taluka Council and his behaviour with the members of the Council was improper. It was further alleged in the letter that the petitioner was signing the bills of the sweepers who were not present on the duty. This written letter/motion of Lal Bux Bagrani was supported by another Member, Khoro alias Raja. The Acting Nazim asked the petitioner to submit his defence and before he could answer the allegations levelled against him, some of the members of the house objected and the petitioner was denied the opportunity of defending the allegations. The Acting Nazim asked the house to vote for motion of 'no-confidence' against the petitioner through secret ballots, which according to the petitioner, was already planned. The petitioner objected to the manner and procedure adopted for the motion of 'no-confidence' against him and he pretested and did not participate in the secret voting. After the secret vote it was disclosed to the house that all the eleven members of the said Council have voted against the petitioner and the result and copy of resolution was communicated to the respondent No,2 who issued the Notification unseating the petitioner as Naib-Nazim, which is impugned in these proceedings.
4. The Acting Nazim of respondent No,1 has filed counter-affidavit and also filed the copy of agenda for the meeting which was to commence on 5-6-2003 and a photocopy of attendance letter reflecting the signatures of nine Councillors who attended the meeting besides the petitioner and copy of minutes of meeting dated 5-6-2003. In addition to these documents affidavits of ten Councillors of the respondent No,1 were filed. Affidavits of Councillor Muhammad Ayub Soomro, Abdul Hameed Bagrani, Mst. Amin Jehan Soomro, Mst. Noor Jehan Soomro, Mst. Shahnaz Sheedi were stereotyped whereas the contents of affidavit of Khoro alias Raja, are little distinguished. No counter-affidavit has been filed on behalf of respondent No,2.
5. It has been contended by the learned counsel for the petitioner that the petitioner was removed from the office of Naib-Nazim without due course of law. He submits that the copy of the minutes of meeting dated 5-6-2003 does not authorize the Acting Nazim to preside the meeting for the purposes of holding meeting in which motion of no-confidence was passed against the petitioner.
He submitted that the petitioner was not provided opportunity to meet the allegations, which were levelled against him. He further submitted that a meeting for the purpose of holding a vote of no- confidence against the petitioner required a notice, which notice was never served and the petitioner was removed during the proceedings of a session, which was not called for this purpose.
He argued that the petitioner was deprived from his lawful right to answer the allegations and was condemned unheard by the said Council. He submitted that the Acting Nazim used to extend threats at times and he was removed on account of the differences, which he had with the Acting Nazim.
6. As against this Mr. Masood Noorani, learned Additional Advocate-General has submitted that the procedure as provided under section 92 of the Sindh Local Government Ordinance, 2001, (hereinafter referred to as "the Ordinance") was followed by the respondent No,1 while removing the petitioner as Naib-Nazim of respondent No,1 and there is no legal defect. He, however, conceded to the position that while following the procedure the petitioner was condemned unheard, as he was not provided the opportunity to explain and to defend or answer the charges levelled against him by the members.
7. Mr. Abdul Aziz A. Shaikh, learned counsel for respondent No,1 has argued that the opportunity was provided to the petitioner during the meeting to explain his position but instead he started abusing the Acting Nazim and the mode adopted by the respondent No,1 of motion of no-confidence against the petitioner was fully covered by law. He submitted that in this respect independent affidavits have beet filed by the Councillor to which no affidavit in rebuttal has been filed.
8. We have heard the learned counsel and have perused the record. Since a short point is involved we with the consent of learned counsel appearing for the parties, admitted this petition to regular hearing and dispose it of finally.
9. The respondent No,1 has not placed any document or application to move motion of no- confidence against the petitioner which motion according to Acting Nazim was supported by Khoro alias Raja. The issue raised in these proceedings requires interpretation of section 89(4) and subsections (1), (2), (3) and (7) to section 92 of the Ordinance, which are reproduced as under:-- "89. Conduct of the business of Union Council.---
(1) ...................................................................................................................................
(2)
(3)
(4) All meetings of the Union Council shall be presided over by Union Nazim and in his absence, by the Naib-Nazim or, in absence of both Union Nazim and Naib-Nazim or where a motion for recall of Union Nazim or Naib-Union Nazim has been moved, by a member elected by the Union Council from amongst its members present in the meeting.
(5) .....................................................
92. Recall of Naib-Union Nazim.--- (1) If in the opinion of a member of Union Council, there is a reason to believe that the Naib-Union Nazim is acting against the public policy or the interest of the people or any other reason, he may, seconded by another member of the Council, move a motion in the Union Council for recall for Naib-Union Nazim.
(2) On receipt of notice referred to in subsection (1), the Union Nazim shall summon a session of Union Council within three days, if the Union Council is not already in session.
(3) Where the Union Council is already in session, the motion referred to in subsection (1) shall be taken up for deliberation immediately on its receipt in the Union Council.
(7) The Naib Union Nazim shall have the right to appear before the Union Council and address it in his defence. ...."
10. We before interpreting the aforesaid sections observe that the agenda for the meeting of 5-6- 2003 does not include the item of removal of the petitioner through motion of no-confidence.
Section 92(1) of the Ordinance requires if in the opinion of a member of Union Council that there is reason to believe that Naib-Nazim is acting against the public policy or in the interest of the people or for any other reason he may seconded by another member of the Council move a motion in the Council for recall of Naib-Union Nazim. Section 92(2) speaks of the notice to be issued to the Naib- Nazim or such motion and the session of the Union Council would be summoned within three days if the Union Council is not already in session. Subsection (3) of section 92 provides that in the event if the Union Council is already in session the motion under section 92(1) shall be taken for deliberations immediately on its receipt in the Union Council. Subsection (7) of section 92 speaks of right of audience of the Naib-Union Nazim to appear and address the Union Council in his defence in regard to the allegations notified to him in the notice under section 92(2) of the Ordinance.
11. In the present proceedings ad w ittedly the motion was moved when the Council was in session.
There is nothing on record to confirm that the petitioner was issued written notice of the motion under section 92(1) of the Ordinance. Even this fact of issuance of notice upon the petitioner has not been pleaded either in the counter-affidavit of the Acting Nazim or in the supporting affidavits of the members. The requirement of notice contemplated under the provisions of subsection (2) of section 92 could not be dispensed with even if the Union Council is already in session. In the present proceedings we find that no written notice had been given to the petitioner.
12. Unless the petitioner was served with the notice he could not be said to have been given opportunity under section 92(7) of the Ordinance to explain his position. Moreover, the allegations on the basis of which the motion against the petitioner has been moved ex facie are vague. From the reading of the provisions referred to hereinabove it is obligatory that a person against whom a motion under section 92(1) is moved must know the allegations containing specific instances on the basis of which motion for his removal has been moved. No elected representative to be deprived of his office on the basis of vague allegations without notifying him in writing as observed by us hereinabove. The charges as stated in the pleadings could hardly be said to be specific which could warrant motion of no-confidence against the petitioner. It has been argued by the learned counsel for the respondent No,1 that the petitioner was provided fair opportunity and to this effect affidavits of different members of the respondent No,1 were placed on record. These are stereotype affidavits and even if no affidavit in rebuttal has been filed there is nothing on record which reflects that the respondent No,1 has complied with the mandatory provisions of section 92 prior to holding the voting on the motion of no-confidence against the petitioner. Such actions circumventing the procedure. Would shake the F confidence of the electorates of the constituency and would have far-reaching effects on the public in general. We may also observe that the minutes of meeting did not authorize the Acting Nazim to preside over the session in which motion of no-confidence was moved against the petitioner. There appears to be serious differences between the Acting Nazim and the petitioner on account of which the motion under section 92(1) of the Ordinance has been moved. The members and or office bearers of the Council should not settle their score within the Council on the basis of personal vengeance. The law in this respect speaks of the interest of public, which interest should be kept supreme while move of the nature is made. Under these circumstances, since we hold that no written notice containing the allegations with specific instances has been issued to the petitioner, therefore, the Resolution of respondent No,1 dated 5-6-2003 and subsequent notification of respondent No,2 dated 11-6-2003 were passed in violation of the provisions of sections 89 and 92 of the Ordinance and the same are without lawful authority. The petitioner shall continue to hold the office of Naib-Nazim of Union Council No,2, Qasimabad, Hyderabad. This petition is allowed in the above terms and all the listed application stands disposed of.