' This writ petition seeks an order/direction in the nature of writ of quo warranto against respondents Nos.3 and 4, members of the Union Council No,38, Tarkhana, Chiniot and arises out of the following circumstances.
2. On 23-12-2002, Pervaz Ahmad, respondent No,3, moved a recall motion against the Naib Nazim of Union Council No,38. It was seconded by Mst. Shahnaz Begum, respondent No,4. Voting on the said recall motion was held on 26-12-2002. The total number of members of Union Council is 20 which is not disputed. Nine votes were polled in favour of the recall motion while equal number of votes were cast against the motion and one vote was rejected. For carrying the recall motion, the majority of the members of the Union Council was required. The motion, accordingly, failed. The consequence of failure of a recall motion is given in section 92(5) of the Punjab Local Government Ordinance (No,XIII), 2001, according to which the proposer and seconder stand de-seated. On 26- 12-2002, the Nazim Union Council No,38, addressed a letter to the D.C.O. For de-notifying the aforesaid respondents as members of the said Union Council. Another letter was addressed by the Nazim of the Union Council to the D.C.O. And the District Nazim, on 26-12-2002. On 31-12-2002, the Nazim, Union Council 38 made a similar request to the Provincial Election Commissioner which was repeated on 7-8-2003. The aforesaid members were, accordingly, not allowed to attend meetings of the Union Council on which on 16-8-2003, the D.C.O. Addressed a letter to the Nazim of the - Union Council for allowing the said respondents to attend "the meeting", with the observation that the bye-laws of the said Union Council required confirmation of the proceedings of the previous meeting and that Nazim had not cast his deciding vote. The said order has been assailed in this Constitutional petition.
3. The learned counsel for the petitioner submits that both the reasons in not annulling the membership of respondents Nos.3 and 4 as mentioned in the order of the D.C.O. Dated 13-8-2003 were extraneous. As far as the first is concerned his contention is that the bye-laws cannot override the provision contained, in section 92(5). His next submission is that since the majority required for carrying the recall motion was 11, the casting vote, of the Nazim even in favour of the recall motion, would not have made any, difference.
4. On the other hand, the learned counsel for respondents Nos.3 and 4 has contended that 19 votes polled included the vote of the Nazim who could only cast his vote in case of equality and not otherwise.
' He further submits that proceedings of meeting of 26-12-2002 required approval of the Union Council in its next meeting in the absence of which respondents Nos.3 and 4 continued to hold the office of the members of the said Union Council.
5. The learned Addl. A.-G. Invited my attention to the Punjab Local Government (Recall Motions against the Nazim and Naib Nazim) Rules, 2003, promulgated on 1-9-2003. According to rule 13(8), in case of failure of the motion the Election Authority shall be informed, the proposer and seconder of the motion shall lose their seats as members of the Union Council and a notification to that effect 'shall be issued by the Election Authority. He submitted that in view of the express provision of section 92(5) approval of the proceedings of the meeting held on 26-12-2002 was not required.
6. The submissions made by the learned counsel for the parties have been considered. Section 92(5) is reproduced for facility of reference.
"Where the motion fails in the Union Council, the proposer and second of such motion shall lose their seats as members of the Union Council."
' This section has been reiterated by the aforesaid 2003 Rules. In view of this express provision, no further approval of the proceedings of the meeting held on 26-12-2002 was required. I am also of the view that fresh deliberations as to the decision on the recall motion taken in an earlier meeting will invite a debate thereby reopening the proceedings concluded on a recall motion which shall be against the express intention of the legislature and may entail political manoeuvring which will not be in public interest. Such an interpretation is to be avoided.
7. As far as the other consideration in the order of D.C.O. Dated 13-8-2003 is concerned, it is equally untenable. The Union Council Nazim, as per the contention of the learned counsel for respondents Nos.3 and 4, did cast his vote. In any case the casting vote by the Nazim even in favour of the motion would not meet the requirement of the approval of the majority of the members as provided in section 92(4) of Punjab Ordinance XIII of 2001.
8. As far as a formal notification dismembering respondents Nos.3 and 4 is concerned, section 92 did not expressly provide for the same. According to subsection (6) of section 92, the District government was required to notify the result of approval of the motion and not of its failure.
However, during pendency of this petition 2003 Rules were framed according to which it is the Election Authority who is required to issue a notification giving effect to the provisions of section 92(5) of Punjab Ordinance No,XIII of 2001.
9. For what has been stated above, this petition is allowed. The impugned order dated 16-8-2003 of the D.C.O. Is declared as without lawful authority and the office of the member Union Council 38 held by respondents Nos.3 and 4 is declared as vacant. They are restrained to act as members of the said Union Council. A copy of this order shall be sent to the Election Authority Punjab for necessary notification under rule 13(8) of 2003 Rules referred to above.