1. GHULAM RABBANI, J.---The above Constitutional Petitions bearing Nos.D-578 of 2004 and D-589 of 2004 filed by petitioner Ali Gohar Bozdar involve common questions of facts and law and are disposed of by this single Judgment. The facts giving rise to the filing of the above Constitutional Petitions are that the petitioner was elected as Taluka Nazim of Taluka Municipal Administration Mirwah. Respondent Muhammad Bakhsh Dasti and respondent Muhammad Younus Jarwar are members of the said Taluka Council.
2. According to petitioner they belong to PML (Q) while petitioner belongs to Awam Dost Panel. On account of political motivation, the said respondents had been agitating against petitioner by making false and frivolous representations. They made on 16-6-2004 a requisition to move a Motion for Internal Recall, on which, the respondent No,6. Naib Taluka Nazim/Convener of the said Council issued a letter/Notice bearing No,NTN/TC-264/04 dated 19-6-2004 to the petitioner informing about moving of Internal Recall Motion against him, that a meeting of the Taluka Council Mirwah was scheduled on 24-6-2004 and he was required to explain his position personally A before the' Council. On 24-6-2004 petitioner filed Constitutional Petition No, D-578 of 2004 whereby he challenged the above-mentioned letter/notice dated 19-4-2004, seeking a declaration that the same with superstructure built thereon on the basis of requisition (above-mentioned) be held illegal, unlawful, void and the said letter/notice be quashed further restraining the above- mentioned respondents from calling the Session in connection with vote of no confidence.
3. During the pendency of the above Constitutional petition, session of the Taluka Council Mirwah was, however, held where the Internal Recall Motion was approved by majority of Councilors and a resolution was passed, whereby, respondent Muhammad Bakhsh Dasti was elected as acting Taluka Nazim to run the affairs of the said Taluka Council for the time being. Consequently, the petitioner filed the other Constitutional Petition bearing No,589/4 with the following prayers:-
(a) To declare that the impugned meeting of the Taluka Council Mirwah, held on 24th June, 2004 under the convener ship of the respondent No,6, was illegal, unlawful, void ab initio, against the provision of Sindh Local Government Ordinance, 2001 and the same is liable to be set aside under the Constitutional jurisdiction of this Honourable Court.
(b) To declare that the petitioner is still continuing in his office as a lawful and legally elected Taluka Nazim of Taluka Council Mirwah.
(c) To permanently restrain the respondents Nos.1 to 3, not to act on the Letter No,NTN/TC-272/04 dated 24-6-2004 issued by respondent No,6 for the issuance of the Notification, regarding the removal of the petitioner and nominating/electing Muhammad Bakhsh Dasti/respondent No,7, as Taluka Nazim Thari Mirwah, as the said letter dated 24-6-2004 has been issued in clear violation of the law, which have no legal sanctity under the law, and no such Notification can be issued by the respondents Nos.1 to 3 on the basis of void letter.
(d) To quash the proceedings of the meeting of the Council dated 24-6-2004, conducted by the respondent No,6, of Taluka Council .Thari Mirwah, without being lawful authority, and of no legal effect.
(e) To grant any other equitable and just relief, as deemed fit by this Honourable Court, in the circumstances of the case, to the petitioner.
(f) To award the costs of the petition. In the above Constitution petition, briefly stated, petitioner averred that he was an Advocate by profession and as a Taluka Nazim he always conducted himself in a fair and transparent manner.
4. Respondents/Government functionaries, on merger of different sections of Muslim League (Qaid- e-Azam), were making efforts to dislodge him from his office by illegal and unlawful means and without due course of law. He stated that neither he had received the above mentioned notice/letter dated 19-6-2004 nor he was provided with the material forming allegations against him and in his absence the Session of Council was held on 24-6-2004 and a no confidence motion was passed against him and respondent Muhammad Bakhsh Dasti was elected/selected as Nazim of Taluka and respondent No,6, Naib Nazim/Convener of the Council and other respondents/official functionaries namely the Taluka Municipal Officer of Taluka Municipal Administration, the Taluka Police Officer Thari Mirwah and the S.H.O. Of Police Station Mirwah, District Khairpur, by force, unlocked the office of petitioner enabling respondent Muhammad Bakhsh Dasti to occupy the Chair.
5. The grievance of the petitioner is that the proceedings of Sessions approving the Internal Recall Motion in the Taluka Council Mirwah, were carried in his absence, without service of the notice upon him and without providing him the insinuating material and election/selection of respondent Muhammad Bakhsh Dasti as Nazirn of the Council in the same meeting of the Council followed by a recommendation to the respondent No,2, the Secretary to Government of Sindh, Local Government Department for issuance of the Notification to declare respondent-Muhammad Bakhsh Dasti as Taluka Nazim, Thari Mirwah is in violation of section 63 of Sindh Local Government Ordinance 2001, hence all the above actions of respondents are illegal, utra vires and void ab initio.
6. The petitioner has claimed that he continues to hold the post of Taluka Nazim of Taluka Municipal Administration Mirwah, although, unseated by members of the Council in their meeting held on 24- 6-2004.
7. Respondent No,7 Muhammad Bakhsh Dasti filed counter-affidavit on his behalf and on behalf of respondent No,6, Naib Nazim/Convener and respondent No,8 Taluka Municipal Officer, Taluka Municipal Administration, Mirwah; wherein, he has stated that the petitioner while acting as Nazim exceeded his powers, misused Government funds and violated the Provisions of Local Government Ordinance. He has further stated that notice regarding Internal Recall Motion was served upon the petitioner through Post as welt" as .Through Taluka Municipal Officer, who, according to him, admitted before the full house (of Council) about the service of notice upon the petitioner. Besides, he has stated that petitioner avoided to receive notice through Process Server as is evident from statement of process server. He has added that the petitioner had knowledge about the date of Meeting for No-confidence motion which was brought to his notice by an earlier letter, when he was informed that the Budget Session could not be held as requisition for meeting in connection with No-Confidence motion was scheduled on 24-6-2004. According to this respondent, the petitioner, being fearful of outcome of result of meeting himself remained absent, therefore, he could only blame himself for not placing his case or putting up any defence. The said respondent has averred in his counter-affidavit that the meeting was held in consonance with the Provisions of law, and the resolution was passed with overwhelming majority of the Councilors which indicated that the petitioner had lost confidence of the house and that there was justification that notification to that effect be issued. Above counter-affidavit has filed by respondent Muhammad Bakhsh Dasti (elected as Taluka Nazim in meeting of Council dated 24-6-2004) stating that the same was filed on behalf of the respondent No,8, as well. Yet the said respondent by name Muhammad Nawaz Khand, as Taluka Municipal Administrator, Mirwah, has chosen to file a separate counter-affidavit, wherein he has stated that letter/notice dated 19-6-2004 regarding No-confidence issued by Convener of Taluka Council Mirwah was not served on the petitioner and that procedure adopted in the meeting dated 24-6-2004 was not in accordance with Sindh Local Government Ordinance, 2001. He has further stated that no notification under section 164 of the Ordinance, has been issued by the competent authority and that the petitioner is still holding the post of Taluka Nazim as per law. Respondent No,9, Taluka Police Officer, Mirwah and respondent No,10 the S.H.0, Police Station Mirwah have filed their statements. They have stated therein that allegation against them are incorrect. Both have further stated that during performance of their duties nobody unlocked the door of the office of petitioner in their presence. Petitioner has filed rejoinder in which he has re-stated that the respondents Nos.6 to 8 had violated the provision of relevant law. He has stated that material brought in his petition be treated as part and parcel of his rejoinder. Before we touch upon the merits of the case it will be advantageous to reproduce relevant sections 63 and 68 of the Sindh Local Government Ordinance, 2001: "63. Internal Recall of a Taluka Nazim.---(1) If in the opinion of a member of the Taluka Council, there is a reason to believe that the Taluka Nazim is acting against the public policy or the interest of the people is negligent or is responsible for loss of opportunity to improve governance and the delivery of services, he' may, seconded by another member of the Council, give a notice to move a motion in the Taluka Council through Naib Taluka Nazim for recall of Taluka Nazim.
(2) On receipt of notice referred to in subsection (1), the Naib Taluka Nazim shall summon a session of the Taluka Council not earlier than three days but not later than seven days, if the Taluka Council is not already in session.
(3) Where the Taluka 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 by Naib Taluka Nazim.
(4) If the motion referred to in subsection (1) is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the District.
(5) Where the motion is approved by a simple majority of the total members of Union Councils of the Taluka. The Taluka Nazim shall cease to hold office from the date of Notification to be issued in this behalf by the Election Authority.
(6) .
(7) The Taluka Nazim shall have the right to appear before the Taluka Council and address it in his defence.
8. (8)
68. Power to appoint officiating Taluka Nazim.----Where the Office of Taluka Nazim falls vacant by reason of his death, resignation or removal, the Taluka Council shall, from amongst its members, elect an officiating Taluka Nazim, till a new Taluka Nazim, till a new Taluka Nazim is elected under the Provisions of subsection (5) of section 156: Provided that Naib Taluka Nazim shall convene the meeting of the Taluka Council for the election of officiating Taluka Nazim within ten days from the death, resignation or removal of Taluka Nazim, as the case may be: Provided further that the officiating Taluka Nazim shall not be a candidate for the office of Taluka Nazim in election for Taluka Nazim." Coming back to the merits of the case, it may be stated that after hearing learned counsel for the parties, in our view, the points which need determination in this case, are as follows:- Point No,1.---Whether the petitioner was not enabled within terms of subsection (7) of section 63 of the Ordinance to appear before the Taluka Council and address it in his defence when the Internal Recall Motion was considered in session of the Taluka Council Thari, Mirwah in its meeting held on 24-6-2004? Point No,2.----Whether the seat of Taluka Nazim Taluka Municipal Administration Thari Mirwah became vacant after Internal Recall Motion was approved by the majority of the members of Taluka Council Thari Mirwah? Point No,3.----Whether the Election of respondent Muhammad Bakhsh Dasti as an officiating Taluka Nazim of Taluka Municipal Administration Thari Mirwah by the majority of the members of Taluka Council by way of resolution passed in their meeting held on 24-6-2004 is legal? Regarding first point, it is stated that Mr. Awan, learned counsel for the petitioner argued that session of Council held on 24-6-2004 was carried in violation of subsection (7) of section 63 of the Sindh Local Government Ordinance, 2001 (hereinafter to be called as the Ordinance) as no notice was served upon the petitioner to enable him to appear before the Council in his defence. In support of his arguments, he referred to the statement of Naib Qasid/Process Server of Taluka Municipal Administration Mirwah and the statement of Muhammad Nawaz Khund, Taluka Municipal Officer, Taluka Municipal Administration, Mirwah which later, has made in his counter- affidavit. On the other hand, Mr. S. Zaheer Hassan, learned counsel for respondents Nos. 6 to 9 argued that notice dated 19-6-2004 was served on the petitioner by way of registered post and through Taluka Municipal Officer of Taluka Municipal Administration Thari Mirwah vide his statement before the meeting of the Council before the resolution in question was passed, therefore, there was no violation of subsection (7) of section 63 of Ordinance. He referred to the postal receipt and the extract of Minutes Book of Council. Mr. G.D. Shahani, learned Additional A.-G.
9. However argued that the respondent did not follow the provision of section 63 and the resolution was not passed properly, therefore, he did not support the no confidence resolution passed against the petitioner. We have considered the above submissions of the learned counsel for the parties and we have also gone through the material made available before us. We have seen the statement of Naib Qasid/Process Server and the statement of Taluka Municipal Officer. Both the documents reveal that the notice was not served on the petitioner. But, whether these statements inspire confidence to determine the above point finally is a question, which requires thorough examination of entire material available before us. As regards the statement of Naib Qasid is concerned, it may be stated that the above Naib Qasid/process server has stated in the above report (statement) that for the purpose of service of the notice regarding no-confidence motion he went to village (Bozdar Wada) of Taluka Nazim where he learnt that Taluka Nazim had gone to Khairpur and when he reached the residence of Taluka Nazim in Khairpur his servant (no name of servant mentioned) refused to receive the notice and informed him that Taluka Nazim had left for Karachi. The said report of Naib Qasid/process server does not bear any date; however, it bears signature of Taluka Municipal Officer with 24-6- 2004 in token of the receipt of report. As against this the petitioner has himself filed on 24-6-2004 with Constitutional Petition No,578 of 2004 a copy of said notice when meeting of Council took meaning thereof that he possessed the notice either before or on the day when meeting was held.
10. He has not disclosed the source of acquiring the said copy. Regarding statement of Mr. Khund, it may be stated that we have seen the extract from the Minutes Book of Taluka. Council Thari Mirwah which is signed by him being Taluka Municipal Officer, Taluka Municipal Administration Thari Mirwah. In the said document dated 24-6-2004, it is clearly mentioned that before the proceedings of meeting of the Council dated 24-6-2004, took place to consider the Internal Recall Motion, he (Mr. Khund), on being asked, had made a categorical statement that he had received E letter and documents through registered post (receipt available on record) and had handed over the same to Taluka Nazim. The extract of Minutes Book is signed by Mr. Khund Taluka Municipal Officer, Taluka Municipal Administration on 24-6-2004, therefore, his subsequent statement in his counter- affidavit appears to inspire no-confidence moreso, in view of the 'fact that the petitioner has not specifically controverted the said document in his Rejoinder rather he has already filed copy of notice dated 19-6-2004 to lend support to the statement of Taluka Municipal Officer that he had delivered the document to the petitioner on receipt through post. It is also noted that the petitioner has filed the above mentioned Constitutional Petition bearing 'No,D-578 of 2004 on 24-6-2004 i,e, the day when the meeting of Taluka Council was held and in which the Internal Recall Motion came up for deliberations. Petitioner in Para-4 of the said Constitutional petition has stated that the respondent No,6, Convener of Taluka Council Than Mirwah had issued a Letter bearing NTN/TC/264/2004 dated 19-6-2004 on the requisition of respondent No,7, Muhammad Bakhsh Dasti and respondent No,8, Muhammad Younis Jarwar both members of Taluka Council Thari Mirwah regarding vote. Of no-confidence against the petitioner for 24-6-2004 at 10 a.m. Not only this, in the said para he has stated that the above fact was reported in the Press. Again, in par4.10 of the said Petition, he has stated in categorical terms that the respondents had levelled as many as 21 allegations in their no-confidence motion against the petitioner and has filed with the Constitutional Petition No,578 of 2004 a copy of requisition containing above allegations. Thus, it becomes very clear that the petitioner had a notice of meeting of Council taking place on 24-6- 2004 and he was also in F possession of letter/notice of meeting. In Constitutional Petition No,578 of 2004, he has also admitted that the Convener, Taluka Council Municipal Administration, Mirwah through his letter dated 19-6-2004 had informed him that respondents Muhammad Bakhsh Dasti and Muhammad Younis Jarwar had moved the motion of no-confidence against him for which the date was fixed on 24-6-2004 to consider the same. He attached a copy of that letter with the said Constitutional petition as Annexure E, yet, instead of appearing/participating in the above meeting, he preferred to file Constitutional Petition No,578 of 2004 on the very day. We are therefore, clearly of the view that the petitioner was well aware of the holding of the meeting of a Taluka Council and that on that day he was in possession of the letter/Notice No, NTN/TC-272 dated 24-6-2004 and the requisition made by respondent Muhammad Bakhsh Dasti and respondent Muhammad Younis Jarwar containing 21 allegation leveled against him which, too, he himself filed with the Constitutional Petition No,578 of 2004 and he could have appeared before the Council and explained his position. As regards the case of Saifullah Memon (supra), it may be stated that the facts and circumstances of that case are totally different inasmuch as that it relates to the unseating of a Naib Nazim of UC-11 Qasimabad Hyderabad. In a meeting of the Union Council where the motion, of vote of no-confidence against the petitioner was considered when it was even not on the Agenda, as he was not provided an opportunity to meet the allegation and of which no notice was ever served upon the him. In this case, however, circumstances are totally different. We have already viewed that the petitioner had a notice of the meeting of Council on 24-6-2004 where no confidence motion was deliberated. Regarding Point No,2, it may be stated that perusal of subsection (5) of section 63 of the Ordinance ibid, reproduced above, reflects that were the motion is approved by a simple majority of total members of the Union Council of the Taluka, Taluka Nazim shall cease to hold the office from the day of Notification to be issued in this behalf by the Election Authority. Nothing has been brought on record if after approval of the Internal Recall Motion the same was placed before all the members of Union Council of Taluka which according to Mr. Awan are in all 231 in numbers. Also, neither the notification issued by Election Authority as contemplated by subsection (5) of section 63 of the Ordinance has been produced nor it is the case of respondents that such Notification stood issued. Mr. S. Zaheer Hassan, learned counsel for the respondents 6 to 9, during the course of his arguments, on a question if the Notification regarding seat of Taluka Nazim became vacant was issued, simply furnished a vague reply that it was not the responsibility of the respondent No,6.
11. Thus, in the absence of Notification, it cannot be said that the petitioner remained no more Taluka Nazim of Taluka Municipal Administration, Thari Mirwah. This view of ours, respectfully stated is supported by the case of Khawaja Saifullah. Regarding Point No,3, Mr. S. Zaheer Hassan very candidly admitted during the course of his arguments that the election of a new Nazim was not legal. Considering the above facts and circumstances, we dismiss Constitutional Petition No,D-578 of 2004 and partly allow Constitutional Petition No,D-589 of 2004 with the observation that Election of respondent Muhammad Bakhsh Dasti as acting Taluka Nazim is declared to be illegal and void. The concerned Authority shall be at liberty to proceed further in the matter within terms of subsections
(4) and (5) of section 63 and other relevant provision of the Ordinance and in accordance with law. The above Constitutional Petitions stand disposed of accordingly.