' NASIR UL MULK, J.---Writ Petitions Nos.1003, 1136 and 1150 of 2003 are decided by single judgment as some important common questions of law pertaining to the application and interpretation of certain provisions of the N.-W.F.P. Local Government Ordinance, 2001 (hereinafter referred to as the Ordinance) arises therein. To appreciate the legal points involved it would be helpful to first state the relevant facts of Writ Petition No.1003 filed by Shamsur Rahman and others.
2. Writ Petition No.1003 pertains to Union Council Barawal Bandi, Tehsil Barawal, District Upper Dir. In the last election to the Union Council Shafiullah, respondent No.3, and Khalilullah, petitioner No.8, were respectively elected as Nazim and Naib Nazim. On 9-8-2003, an application signed by five members of the Union Council was made to the Naib Nazim for calling a meeting of the Council for the purpose of moving a "vote of no confidence" against the Nazim. It may be stated that the phrase used in the Ordinance for the removal of the Nazim or Naib Nazim through voting is "internal recall". The Naib Nazim called the meeting for 13-8-2003 by notice dated 11-8-2003 addressed to all the members. The main item on the agenda was the motion for the internal recall of the Nazim. The meeting was held as scheduled. All the seven members present voted in favour of the motion. The remaining five members, including the Nazim, were absent. The result of this internal recall was communicated to the District Government Upper Dir and the District Coordination Officer (D.C.O.) notified the result under section 85(5) of the Ordinance, which declared that the Nazim, respondent No.3 had seized to hold office with effect from 13-8-2003. The Deputy Secretary, Local Government Department, Government of N.-W.F.P., on 16-8-2003 wrote to the D.C.O. Stating that 7 members, voting against respondent No.3 did not constitute majority of the total membership of the Council which according to the Ordinance was 21. The D.C.O. Was asked to rescind the notification of 13-8- 2003. Accordingly, the D.C.O. On the same date, that is 16-8-2003, rescinded the earlier notification.
The petitioners, eight in numbers, Councillors of the Union Council, including the Naib Nazim, have questioned the direction of the Local Government Department and the notification of the D.C.O. In compliance thereof, both dated 16-8-2003, through this Constitutional petition.
3. Mr. Aziz Akhtar Chughtai, Advocate, appeared for the petitioner and Qazi Muhammad Anwar, Advocate, for respondent No.3 in Writ Petition No.1003. Mr. Muzammil Khan, Advocate, represented Qamar Zaman and others, petitioners in Writ Petition No.1136, whereas Barrister Masood Kausar appeared on behalf of the contesting respondent No.4. Writ Petition No.1150 was still in motion but all the parties were duly represented. Barrister Masood Kausar appeared for the petitioner and Mr. Muzammil Khan, Advocate for respondent Nos.5 and 17. In all the cases, the Provincial Government and the District Governments were represented by Mr. Jehanzeb Rahim Barrister, Advocate- General, N . -W .F.P .
4. Mr. Aziz Akhtar Chaughtai, Advocate, raised a number of legal points which can be summarized as follows:--
(i) That the Provincial Government had no powers under the Ordinance to direct the District Government or the D.C.O. To rescind a notification issued by the District Government under section 85(5) of the Ordinance, notifying the result of the approval of the motion of the internal recall.
(ii) That the D.C.O. Had no power to rescind the notification issued under section 85(5) once notification is issued, the Nazim ceases to hold office.
(iii) That although the composition of the Union Council under section 87 of the Ordinance is 21 members but "the majority of the votes of total membership of the Union. Council" mentioned in section 87(4) means the functional membership, and would not include vacancies.
5. The learned counsel representing the respondents in the cases came up with some additional propositions. That removal of the Nazim and Naib Nazim through internal recall is to be distinguished from vote of no confidence. The law requires that motion can be moved only on specific grounds mentioned in section 85(1) or section 92(1) of the Ordinance, as the case may be.
That the Nazim shall have the right to defend himself, which necessarily means that he should be given sufficient prior notice. That the approval of the motion for internal recall entails penal consequences under section 163 of the Ordinance where the Nazim becomes disqualified from holding any public office for a period of four years.
6. The contentions of the counsel for the parties on either side hinges ou the interpretation of the various provisions of section 85 of the Ordinance, which is titled "Internal Recall of Union Nazim". The section is reproduced as under:-- "85. Internal recall of Union Nazim.---(1) If in the opinion of a member of Union Council, there is a reason to believe that the Union Nazim is acting against the public policy or the interest of the people or on the ground of inaction or neglect to serve the needs of the people, he may be seconded by another member of the Council, give a notice to move a motion in the Union Council for recall of Union Nazim.
(2) On receipt of notice referred to in subsection (1), the Naib 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 deliberations on the next day from its receipt in the Union Council.
(4) If the motion referred to in subsection (1) is approved by majority of the votes of the total membership of the Union Council through a secret ballot, such motion shall be caused by the Election Authority to be voted upon by the members of the Village Councils and Neighbourhood Councils in the Union and if such motion is approved by the simple majority of the total members of the Village Councils and Neighbourhood Councils, the Union Nazim shall cease to hold office from the date of notification to be issued by the District Government under subsection (6).
(5) The District Government shall notify the result of the approval of the motion.
(6) The Union Nazim shall have the right to appear before the Union-Council and address it in his defence.
(7) No motion for recall of Union Nazim shall be moved during the first six months of assumption of office of Union Nazim nor shall such motion be repeated before the expiry of one year from the rejection of previous motion."
7. The system of election of the members of the Local Council, their Nazim and Naib Nazim and their removal from office introduced under the Ordinance is significantly different than that laid down in the earlier law pertaining to the Local Government, namely, N.-W.F.P. Local Government Ordinance, 1979, which now stands repealed. Whereas under the repealed Ordinance, the Chairman or a Vice- Chairman` would be elected by the members of the Council and removed simply by vote of no confidence by the members, the Nazim and Naib Nazim of a council under the Ordinance though are elected through adult franchise, they are liable to be removed by the members of the Council and subject to affirmation by the members of the Village Council and Neighbourhood Council in the case of Union Nazim, and that too by internal recall and not vote of no confidence.
8. The points raised by the learned counsel for the respondents are taken up first as they relate to the procedure for the internal recall. The procedure for internal recall of Union Nazim is laid down in section 85 of the Ordinance and that of Naib Union Nazim in section 92. The procedure laid down in the two sections are similar except for two provisions. Whereas the motion for internal recall of the Union Nazirn can be moved on the ground that he is "acting against the public policy or the interest of the people or on the ground of inaction or neglect to serve the need of the people", the motion against Naib Nazim under section 92(1) can be moved on the allegation that he is "acting against the public policy or the interest of the people or for any other reason". Thus, the motion for internal recall in either case must be in the public interest, and not motivated by personal agenda of the mover or other member. Secondly, the requirement under section 85(4) of the approval of the vote of internal recall against the Union Nazim by the Village Council and the Neighbourhood Council under section 85(4) has been omitted in case of internal recall of Naib Union Nazim. For the discussion on the points raised in these Constitutional petitions, this distinction is however not material.
9. Under the scheme laid down in section 85 of the Ordinance for the removal of the Union Nazim, a member has first to give notice to move a motion. The notice must state any of the grounds mentioned in subsection (1) of section 85 on account of which the removal is sought. Subsection
(6) confers upon the Nazim against whom a motion is moved for his removal, the right to appear before the Union Council and defend himself. To enable the Nazim to properly defend himself the ground given in the notice under subsection (1) must not be general but specific and sufficiently stated. These proceedings are in the nature of impeachment in that not only that it carries a stigma if the Nazim is removed on the basis of certain allegation but the removal entails a penalty under section 163 of the Ordinance of disqualification of the Nazim from being elected to any office of the Local Government for a period of four years. Furthermore, the motion for internal recall is moved against Nazim or Naib Nazim by those who did not elect them, as they are elected by a direct vote of the people. That is why the Legislature has used the phrase "internal recall" instead of "vote of no confidence". The provisions of section 85 therefore must be strictly followed. It may however be stated that the Nazim or the Naib Nazim against whoni the motion is moved, must defend himself before the Council and not avoid attendance of the meeting. It is in the meeting that he can demand the details of the allegations so that he can explain the same before the appropriate forum which is to take the decision on the motion. He cannot be allowed to take the plea of insufficiency or inadequacy of the ground of removal before the Court unless he had attended the meeting and contested the motion.
10. Though subsection (6) of section 85 envisages intimation to the Nazim of the notice to move a motion, as without which he cannot exercise his right of defence, section 85 does not make provision for any D formal notice to the Union Nazim. Having said that, allegation against the Nazim must be brought to his notice and he be informed of the meeting called for moving the motion. As there is no provision for a formal notice we would not lay down any rule of our own as to the form of such a notice or intimation. The question as to whether or not the Union Nazim against whom action is taken under section 85 had the knowledge of the notice of the motion would depend upon the facts of each case. We may however, add that ordinarily the person against whom a motion is being moved would have information of the same as a lot of planning and activities precede the moving of such a motion. It has also come to our notice that when the Nazim or the Naib Nazim against whom a motion is moved realizes that it is being supported by the majority, he refrains from attending the meeting for internal recall. Thus, his simple denial of being intimated about the meeting would not be sufficient to establish his lack of information of the same. The presumption of truth would be attached to the official record maintained for recording the proceedings for the internal recall.
11. We first take up the second point raised by the learned counsel for the petitioner regarding the power of D.C.O. To rescind the notification once issued under section 85(5). Going hack to the scheme under section 85, subsection (4) thereof provides that the Union Nazim shall cease to hold office from the date on which the District Government notifies under subsection (6) the result of the approval of the motion of internal recall. However, in case of internal recall of the Naib Union Nazim, he ceases to hold office under subsection (4) of section 92 on approval of the motion by the Union Council, and not from the date of notification by the District Government. However, in both the cases, it is provided that the District Government shall notify the result of the approval. The District Government is therefore only to publish the result of the notification and has no power to withhold such notification. Furthermore, once such notification is issued, the District Government becomes functus officio and there is no provision in the Ordinance which empowers the District Government to withdraw the notification. The learned counsel for the petitioner had also contended that the notification issued by the District Government cannot be recalled by the D.C.O. As he alone does not constitute the District Government. In this context the learned counsel has referred to sections 13, 17, 26 and 28 of the Ordinance to highlight his point. The resolution of this question becomes unnecessary once we have held that a notification issued by the District Government under subsection (5) of section 92 of the Ordinance cannot be withdrawn.
12. We now advert to the second point, namely, that the Provincial Government had no power to interfere with the removal of the Union Nazim or Naib Union Nazim. The learned counsel appearing for the respondent placed reliance only on section 197 of the Ordinance in support of the contention that the Provincial Government is conferred with powers for giving directions to the District Government in matters pertaining to the internal recall of the Union Nazim. Section 197 reads:-- "Removal of difficulty.---The Government may by order, provide for the removal of any difficulty which may arise in giving effect to the provision to this Ordinance."
' In Writ Petition No.1003 of 2003, the authority of the Provincial Government to order the D.C.O. To rescind the earlier notification was specifically challenged. The Provincial Government in its comments to the petition did not state as to the provisions of the Ordinance under which it has exercised such power. It also did not press into service section 197 for the exercise of that power.
The said provision was referred to by the learned counsel for the private respondents. The non- reliance of the Provincial Government on section 197 for its intervention in the process of internal recall manifest that such interventions have not been made in exercise of the powers conferred upon the Government under the said provision. That also seems to be the reason why the Provincial Government, instead of itself annulling a notification issued by the District Government under section 85(5) of the Ordinance directs the D.C.O. To withdraw it. Even otherwise the powers conferred upon the Provincial Government by section 197 is only for the removal of any difficulty in giving effect to the provisions of the Ordinance. It does not empower the Government to revise, reverse or modify any decision taken by an Authority in exercise of its powers conferred upon it under the Ordinance. The powers to revise a decision or an order have to be explicitly conferred by a statute and the same cannot be exercised by implication or inference. Thus, the Provincial Government is not vested with powers under the Ordinance to give any direction to the District Government regarding notification issued by it under subsection (5) of section 85 of the Ordinance.
The Ordinance has not provided any remedy to an aggrieved person against the conduct of the proceedings under section 85 or 92 for the internal recall or the decision made therein, nor against the notification issued by the District Government approving the result of the motion for internal recall.
13. The third point raised on behalf of the petitioners pertains to the meaning of "total membership" of the Union Council for the purpose of determining the majority under subsection (4) of section 85 and subsection (4) of section 92 of the Ordinance. Both the provisions provide that the motion, to succeed is to be approved by "majority of the votes of the total membership of the Union Council."
For the petitioners, the contention was that the total membership would mean the functional membership and not the number prescribed in section 87 of the Ordinance. The argument on the other side was that total membership is that prescribed under section 87 and thus for a motion of internal recall to succeed it must be approved by at least 12 members as the prescribed number is 21 members. Twelve of these are to be elected on general seats, six are reserved for peasants and workers, one for minority. The Union Nazim and the Naib Union Nazim have also been included in this composition. The only judgment cited for determination of the above controversy were of this Court in the cases of Muhammad Ramzan v. Government of N.-W.F.P. 1990 CLC 1188 and Behram Khan v. Government of N.-W.F.P. PLD 1983 Peshawar 123. Both these judgments were cited by the learned Advocate-General. The case of Muhammad Ramzan is not very helpful for resolving the controversy as in that case the question before the Court was regarding lack of quorum for the purpose of moving a motion of no confidence as one of the members had died and another had tendered resignation, thus leaving only four of the total of six members of the concerned Union Council, which, it was claimed, did not constitute 2/3 majority for the passing of the motion. The Court however found that the resignation tendered by the member was not validly notified and thus he remained the member. The Court was also informed that the election to the seat that had fallen vacant on account of the death of a member had already been held. The Court therefore did not had to resolve the question as to what constituted total membership of the Union Council. This issue however came up squarely in the case of Behram Khan. A vote of no confidence had been passed by 7 members out of the total of ten functioning Councillors of Municipal Committee, Kohat against its Chairman. An argument was advanced before the Court on behalf of the Chairman that since the Committee comprised of twelve members, the seven members voting against him did not constitute 2/3 majority of the total number of the members of the local council as laid down in section 36 of the N.-W.F.P. Ordinance No.IV of 1979. Refuting the argument, the Court held that "2/3 majority of the total number of members of the Local Council" under section 36 of the said Ordinance means the functional councillors, - which was 10 in that case and would not include the two seats that had fallen vacant. It was thus held that 7 and not 8 members would constitute 2/3 majority. No case-law was cited on behalf of the respondents in support of their contention that the total membership for the purpose of sections 85(4) and 92(4) would be the number fixed under section 87 and not the functioning membership.
14. In the absence of any case-law to the contrary, we would follow the rule laid down in the case of Behram Khan, ibid. The principle is particularly in harmony with the scheme laid down in the present Ordinance for the removal of the Nazim and Naib Nazim of the Union Council. It may be reiterated that the removal of the Nazim and Naib Nazim is not through a vote of no confidence but by internal recall and only on certain grounds. Under the present Scheme, the number of the councillors has been increased manifold and seats have been reserved for women, peasants and workers. In case of seat of a member falling vacant or remaining unfilled the same is to be filled through a bye-election. Under section 156(3) all bye-elections are to be held only once a year on a date or dates to be fixed by the Chief Election Commissioner. Thus, there may be a situation where on account of unfilled seats or seats falling vacant, the number of the functioning members of a Union Council may be reduced to less than twelve, thereby not constituting a majority of the number fixed under section 87 of the Ordinance. The facts of Writ Petition No.1003 aptly illustrate this point, where there are only twelve members functioning at the moment, just one more seat falling vacant in that council would then reduce it to eleven, thus making it impossible to remove the Nazioa or Naib Nazim by internal recall if it is to be passed by majority of 21 members. Eight seats in that union were never filled, since the election of the Union Council in the year 2001. If "the total membership" in sections 85(4) and 92(4) is interpreted to mean the number fixed under section 87, that is 21, and a situation arises where the functional members fall below 12, the members will have no remedy to remove the Nazim or Naib Nazim of a Union Council against whom there may be serious allegations of misconduct or misuse of authority. In this view of the matter too, it would be practical and reasonable to hold that the "total membership" should mean the functioning members. It may be added that additional protection is provided to the Nazim of a Union Council against baseless and frivolous motion of internal recall in that under subsection (4) of section 85 the approval of the majority of the members of the Union Council, is then to be placed by the Election Authority before the members of the Village Council and Neighborhood Council in the union and it is only after their approval that the Nazim shall cease to hold office.
15. We mow proceed to apply the above rules to the facts of each case. The facts of Writ Petition No.1003 of 2003 have been narrated in para.2 above and need not be reiterated. As we have held that the Provincial Government has no authority to either annul or direct the D.C.O. To annul the notification issued by the District Government under section 85(5) of the Ordinance, the direction of 16-8-2003 by the Deputy Secretary, Local Government, Government of N.-W.F.P. To the D.C.O. For recalling the notification dated 13-8-2003 was without lawful authority. Further, the District Government after having notified the notification of 13-8-2003 has become functus officio and could not recall the same. The order of the D.C.O. Dated 16-8-2003 was inerefore bad in law not only because the District Government had become functus officio but it was passed on the illegal order of the Deputy Secretary, Local Government, Government of N.-W.F.P. The order of 16-8-2003 therefore has to be set aside. An argument was raised by the learned counsel for respondent No.3, the Nazim of the Union Council, against whom the motion for internal recall was moved, that he was not given any notice of the meeting fixed for the moving of the motion. Respondent No.3 had neither filed comments nor written statement after the writ petition was admitted to full hearing.
However, during the course of arguments on 17-12-2003 when the question of notice came under discussion, the learned counsel for the respondent filed an affidavit on 19-12-2003 denying the receipt of any notice. In response to this affidavit, the - learned counsel for the petitioner filed documents to show the issuance of notice to all the members. The minutes of the meeting however had already been filed with main writ petition. The plea of non-receipt of notice was taken up by the learned counsel for respondent No.3 on the adjourned date of 23-12-2003. According to the notice addressed to all the members regarding the vote of internal recall dated 11-8-2003, the only item on the agenda was the notice of internal recall and the address by the Nazim to furnish explanation regarding the allegations. The minutes of the meeting state that despite receipt of the agenda the Nazim had chosen not to attend the meeting.
1.1..Espondent No.3 had deliberately abstained from the meeting, which is further evident from the fact that all the seven members present voted against him and his four supporters joined him in abstaining from the meeting. Since respondent No.3 failed to appear before the Council to exercise his right of defence, the plea, if any, regarding the inadequacy of the grounds of his removal cannot be taken now. Writ Petition No.1003 would therefore succeed in its entirety.
16. Writ Petitions Nos.1136 and 1150 of 2003 arise out the same internal recall proceedings against Muhammad Attique Khan, Naib Nazim, Union Council Ghaar Meenar, Tehsil and District Swabi.
Notice to move a motion for internal recall was given by a member of the Union Council, addressed to the Secretary, Union Council. Notice of the meeting was given on 19-8-2003 for 20-8-2003. In the meeting, the motion was passed by nine votes in favour and two against. In the same meeting a councillor by the name of Qamar Zaman was elected as officiating Naib Union Nazim. The result of the voting was communicated to the District Government, Swabi for notifying the result under section 92(5) of the Ordinance regarding the removal of the Naib Nazim and for notification under section 156(6) of Qamar Zaman as officiating Naib Nazim. Accordingly, two separate notifications were issued on 22-8-2003. The Deputy Secretary, Local Government Department, however on the same day, that is, 22-8-2003 directed the D.C.O., Swabi to rescind the two notifications as they were issued in contravention of the provision of N.-W.F.P. Local Government Ordinance, 2001 and not maintainable. He however did not specify as to which provision had been contravened. Qamar Zaman, the officiating Naib Nazim has filed Writ Petition No.1136 questioning the direction of the Provincial Government dated 22-8-2003 whereas Muhammad Attique Khan has brought Writ Petition No.1150 challenging the entire proceedings of the internal recall against him.
17. The learned counsel appearing for Qamar Zaman has mainly argued that the Provincial Government had no power to order the recession of the notification issued by the District Government in pursuance of a vote of internal recall by the Union Council. In the light of the finding given above on this question, this argument holds good. The learned counsel for Muhammad Attique Khan in his Constitutional petition has submitted mainly two-fold arguments. Firstly, that the motion for internal recall was passed by only nine members which did not constitute majority of the twenty one members that constitute the Union Council under section 87 of the Ordinance.
This question already stands resolved and we have held that the majority envisaged under sections 85 and 92 for the removal of Nazim and Naib Nazim respectively would be of the functioning members and not that fixed under section 87. The functioning members of the Union Council were thirteen and therefore nine members voting in favour of the motion constituted majority. The next argument of the learned counsel for Muhammad Attique Khan was that the entire proceedings were taken at the petitioners back and that he had no knowledge of the same.
Further, that the notice for moving the motion did not contain any allegation as is required under section 92 of the Ordinance. As regards the first limb of this argument, the record shows that the petitioner had notice of the move. The notice for the meeting has been signed by nine members, including the petitioner Muhammad Attique Khan. The attendance sheet of the meeting of 20-8- 2003 has recorded the presence of the petitioner though he had not signed it. The information furnished to the District Government for notifying the result specifically mentions the presence of Muhammad Attique Khan in the meeting. This part of the argument therefore fails. As regards the second limb of the argument,, the notice given by a member includes a number of allegations against the Naib Nazim pertaining to corruption as well as misuse of his authority as Naib Union Nazim by posing to be a press reporter and blackmailing and cheating innocent people. That on account of this conduct he has brought bad name to the Union Council and therefore has lost the confidence of the majority of the people. Since the petitioner denies his very knowledge of the meeting for internal recall against him, he has neither furnished explanation regarding the allegation against him before the Union Council nor indeed in his present Constitutional petition.
Under section 92(1), the motion can be moved against the Naib Union Nazim if he acts against the "public policy or the interest of the people or for any other reason". The allegation against the petitioner would surely fall within the conduct mentioned in the said provision. The allegations therefore go unrebutted and the explanation should have been tendered in the first place in the meeting held for the internal recall. The motion for internal recall against the petitioner was therefore lawfully passed. In this view of the matter, the notifications dated 22-8-2003 issued by the D.C.O., Swabi must be restored.
18. In view of the aforestated discussion, Writ Petition No.1003 is allowed and the impugned letter of the Secretary, Local Government Department, respondent No.1 and the consequent notification of the same date of the D.C.O., Upper Dir, respondent No.2 are set aside and the notification dated 2- 8-2003 issued by respondent No.2 is restored with the result that respondent No.3 ceases to be Nazim of Union Council, Barawal Bandi, Upper Dir. Writ Petition No.1150 is dismissed whereas Writ Petition No.1136 is allowed and the impugned order dated 22-8-2003 issued by Secretary, Local Government, Government of N.-W.F.P., is set aside and consequently, the two notifications dated 22-8-2003 of the D.C.O., Swabi are restored with the result that Muhammad Attique Khan ceases to be Naib Nazim Union Council, Ghaar Meenara, District Swabi and Qamar Zaman shall function as officiating Nazim in his place.