' This writ petition seeks annulment of Notification No.SOV (LG)5-2/2003 issued by Government of the Punjab, Local Government and Rural Development Department on 30-9-2004 whereby Notification No. E. D.O. (C. D)/PA / 1868-75 dated 28-5-2004 issued by Zila Nazim, Bahawalpur under section 85(6) of the Punjab Local Government Ordinance, 2001 (hereinafter to be referred as Ordinance), declaring Mian Sohail Zafar Qureshi (respondent No.1) Nazim Union Council No.22 Sangar, Tehsil and District Bahawalpur, to have ceased to hold the office of Nazim of said Union Council w.e.f 11-8-2003 (Annex-E), was declared not only ab initio void but also in gross violation of the provisions of law and Mian Sohail Zafar Qureshi respondent No.1 was allowed to continue his functions as Union Nazim of the Union Council No.22.
2. The facts relevant for the disposal of this writ petition are that Mian Sohail Zafar respondent No.1 was elected Nazim of Union Council No.22 Sangar Tehsil Bahawalpur when he was ousted on account of Internal recall motion having been carried out on 11-8-2003 by the members of the said Union Council vide (Annex-B). The respondent No.1 challenged the above mentioned Internal recall motion through Writ Petition' No.2590 of 2003 at this Bench but the same was heard at the Principal Seat along with other writ petitions of similar nature which were dismissed by a Division Bench of this Court on 24-3-2004. The abovementioned judgment of ' the Division Bench of this Court was further challenged before the Honourable Supreme Court of Pakistan but the same too was dismissed on 30-4-2004 PLJ 2004 SC 82. After the above mentioned judgment of the Honourable Supreme Court, Zila Nazim, Bahawalpur under section 85(6) of the Ordinance issued a Notification on 28-5-2004 (Annex-E) which runs as under:-- "In pursuance of section 85(6) of Punjab Local Government Ordinance, 2001, it is notified that Mian Sohail Zafar Jabla, Nazim, Union Council No.22, Sanjar, Tehsil and District Bahawalpur has ceased to hold office of Nazim w.e.f. 11-8-2003 as a result of recall motion approved by the members of Union Council No.22, Sanjar, in its meeting held on 11-82003."
' After the issuance of said Notification the members of Union Council No.22, Sanjar in its meeting held on 31-5-2004 elected Malik Nazar Hussain petitioner as its officiating Nazim in terms of section 156(7) of the Ordinance. However, the Secretary, Local Government vide Notification dated 30-9- 2004 not only declared the Notification issued by Zila Nazim restraining the respondent No.1 from acting as Union Nazim of the said Union Council ab initio void but also allowed Mian Sohail Zafar respondent No.1 to continue performing his functions as Union Nazim. This Notification of the Secretary, Local Government has now been challenged through the instant writ petition.
3. Mr. Masud Ahmad Khan, Advocate learned counsel for the petitioner raised the following points for consideration in support of this writ petition:--
(I) the Notification issued by the Secretary Local Government is violative of the judgment of this Court as well as of the Supreme Court mentioned above;
(II) the respondent No.1 having failed before this Court as well as before the Honourable Supreme Court of Pakistan was debarred from challenging the Notification issued by the Zila Nazim, Bahawalpur;
(III) on the success of Internal recall motion by the members of the Union Council, Zila Nazim was right in issuing the Notification dated 28-5-2004;
(IV) after the issuance of Notification by the Zila Nazim, the petitioner was rightly elected as officiating Nazim in terms of section 156(7) of the Ordinance; and
(V) that the Secretary Local Government could not have issued Notification striking down the Notification earlier issued by the Zila Nazim and allowing respondent No.1 to perform his duties as Union Nazim of the said Union Council.
4. As against this, Messrs. Haji Muhammad Saifullah Khan and Ijaz Ahmad Chaudhry, Advocates appearing on behalf A of respondent No.1 have argued:--
(i) that the matter before this Court as well as Honourable Supreme Court of Pakistan in the earlier round of litigation was with regard to interpretation of section 85 of the said Ordinance and also for declaring the said section being violative of the fundamental rights;
(ii) that several procedural irregularities were committed while adopting the Internal recall motion and on this score the said motion was sought to be struck down;
(iii) that on the basis of the mere Internal recall motion the respondent No.1 'could not have been debarred from functioning as Union Nazim without successful completion of 2nd phase of the motion, as required by subsection (4) of section 65 of the Ordinance; and that
(iv) that Nazim could not have issued the Notification because the seat of Union Nazim of Union Council No.22 Sanjar despite passing of 1st phase of. Internal recall motion by the members of the Union Council, had not fallen vacant,' having ,not been so notified by the Election Commission of Pakistan within the meaning of section 164 of the Ordinance.
5. I have considered the abovernentioned arguments of learned counsel for the parties and to me the following points requiring determination for the proper decision of this writ petition emerge:--
(a) Whether Internal recall motion carried out by the members of the Union Council Sanjar on 11-8- 2003 was completed or it was just a Ist phase;
(b) Whether the Zila Nazim could have issued Notification dated 28-5-2004 in pursuance of section 85(6) of the Ordinance declaring respondent No.1 to have ceased to hold of the office of Union Nazim w.e.f. 11-82003;
(c) Whether the seat of Nazim Union Council stood vacant automatically as a result of abovementioned Internal recall motion;
(d) Whether the judgment of Division Bench of this Court and also the judgment of apex Court dated 30-4-2004 dismissing appeal of respondent No.1, operated as estoppel against respondent No.] and the respondent No.1 stood removed from his office without completion of 2nd phase of Internal recall motion within the meaning of subsection (4) of section 85 of the Ordinance; and
(e) Whether in the scheme of elections for the Local Bodies under the Local Government Ordinance, Zila Nazim does figure anywhere, whether the Secretary Government of the Punjab, Local Government and Rural Development does have any role in the elections matters while exercising his powers under Punjab Local Government (Appeal) Rules, 2002 and what is the role of ' Punjab Election Authority in the matters relating to recall motions under the Punjab Local Government (Recalls against Nazim and Naib Nazim) Rules, 2003.
6. The answer to the point (a) lies in the language of section 85 of the Ordinance, which reads as under:-- "85: Internal recall of Union Nazim:---
(1) If in the opinion of a member of Union Council there is 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 neglects to serve the needs of the people, he may, seconded by another member of the Council, have 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) Whether 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 receipts in the Union Council.
(4) If the motion referred to in subsection (1) is approved by majority of the votes 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) Whether the motion fails in the Union Council, the proposer and seconder of such motion shall lose their seats as members of the Union Council.
(6) The District Government shall notify the result of the approval of the motion.
(7) The Union Nazim shall have the right to appear before the Union Council and address it in his defence.
(8) 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: ' Provided that no motion for recall of Union Nazim shall be moved before 31st December, 2002. '
A bare reading of language of section 85 of the Ordinance, reproduced above, makes it clear that Internal recall motion against the Union Nazim consists of 2 phases. The first phase is covered by subsections (1), (2) and (3) whereas the procedure for 2nd phase is laid down in subsection (4) of the said section. The provisions of subsections (1), (2) and (3) of the abovementioned section only relate to the procedure for carrying out the Internal recall motion against Union Nazim by the members of the Union Council only. Nowhere in any of these three subsections it is provided that on the completion of 1st phase of Internal recall motion up to subsection (3), the Union Nazim shall cease to hold the office, meaning thereby that the Ist phase is just transitional one and even after the completion of Ist phase, the Union Nazim remains as such. However, it is only on the successful completion of 2nd phase regulated by subsection (4) of said section, the Union Nazim ceases to hold the office from the date of Notification to be issued by the District Government. Admittedly from the date of passing of Internal recall motion by the members of the Union Council on 11-8- 2003 till date: 2nd phase as provided under subsection (4) has not been completed nor any Notification to this effect has been issued by the District Government so as to debar respondent No.1 from holding the office of Union Nazim.
' Before proceeding further it would not be out of place to mention here that for carrying out and completion of 2nd phase within the meaning of subsection (4) of the above section, a mechanism has itself been provided in explanation to section 24 of the Ordinance, which provides that for the purposes of 2nd phase of Internal recall motion against the Union Nazim, the Election Authority nominated by the Government shall be responsible for causing vote of the 2nd phase and to fulfill the requirement of explanation of section 24, the Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 have been framed which have come into force from 1-9-2003 and Rule 15 of the said Rules prescribes the procedure for carrying out 2nd phase of motion for Internal recall of Union Nazim. According to said Rule the entire voting procedure after the approval of recall motion at the Ist stage for the purposes of 2nd phase, is to be conducted by the Election Authority and on the completion of that phase, it is only the Election Authority which has to notify the final result in the official Gazette in terms. Of Rule 22 and on the publication of said Gazette, only the -District Government has to issue Notification under subsection 6 of section 85 of the Ordinance. In the similar circumstances, the Honourable Supreme Court of Pakistan in the case of Khawaja Ahmad Hassaan v. Government of Punjab and others PLD 2004 Supreme Court 694, declared that unless the 2nd phase of recall motion is complete, Town Nazim (for the purposes of present case Union Nazim), could not be stopped to perform his duties. As.. a result of above discussion, it is declared that the Internal recall motion carried out by the members of the Union Nazim on 11-8-2003 was not complete and it was just the Ist phase of the motion.
7. Since the Internal recall motion carried out by the members of the Union Council on 11-8-2003 was not complete, hence the Notification dated 28-5-2004 debarring the respondent No.l. From performing the duties of Union Nazim could not have been issued at all ;and this is the answer to point (B) noted above.
8. Since the stage of 2nd phase of the Internal recall motion within the meaning of subsection (4) of section 85 of the Ordinance has not yet reached so far nor any exercise to this effect has been done by the Election Authority as required by Punjab Local Government (Election Authority) Rules, 2003 and no Notification has so far been issued under rule 22 of the Punjab Local Government (Election Authority) Rules, 2003 and in consequence of such a Notification no subsequent Notification by the District Government under subsection (6) of section 84 of the Ordinance, has been issued so for, hence the seat of Nazim Union Council Sangar did not fall vacant so as to hold the election of officiating Nazim. Resultantly, the election held by the members of the Union Council on 11-8-2003 electing the petitioner as officiating Nazim, is declared as void and with no legal consequence.
9. Learned counsel for .The petitioner has laid much stress in his arguments, that after the failure of respondent No.1 before this Court and also dismissal of his appeal before the Honourable Supreme Court, he was estopped from challenging the validity of Notification issued by the Zila Nazim, Bahawalpur dated 28-5-2004. This argument of the learned counsel appears to be based on non- reading of both the judgments because the question requiring determination before the Division Bench of this Court as well as before the Honourable Supreme Court was with regard to the interpretatjon of section 85 of the Ordinance on the touchstone of its being based on lack of reasonable classification, resulting, inequality, and thus in violation of Article 25 of the Constitution and the same was sought to be struck down being penal in nature, against public policy, arbitrary, capricious, discriminatory and unconstitutional and also violative of Article 4 of the Constitution and the second point raised before the Division Bench of this Court was with regard to determination of procedural irregularities/illegalities committed in passing the Internal recall motion and it was in these circumstances the Division Bench of this Court in its celebrated judgment after analyzing the entire case-law, held as under:-- "For what has been discussed above, we are of the considered view of the legislation in form of Punjab Local Government Ordinance, 2001, especially its provisions of sections 85 and 92 are neither in conflict or inconsistent with the rights given by Part II of the Constitution nor are discriminatory and thus the same are ultra vices' of the Constitution and have non-conflict with its Article 8. Recall motions approved by the concerned Union Councils under those provisions cannot be declared as prayed. The petitions have no merits in those and thus, are consequently dismissed."
' Similar questions were raised before the Honourabe Supreme Court of Pakistan and the Honourable Supreme Court besides maintaining the above-said Division Bench judgment of this Court, in para.12 of its judgment, held as under:-- "As regards internal recall motioni section 85 of the Ordinance provides that after the receipt of a notice of recall against the Union. Nazim, a session of the Union Council shall be summoned within three days if the Union Council is not already in session. However, if the Council is already in session, the motion of recall shall be taken up the next day. If the recall motion is carried by majority of members of the Union Council through a secret ballot, the same 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 passed by a simple majority, the Union Nazim shall cease to hold office from the date of notification by the District Government."
' A perusal of abovementioned Division Bench of this Court as well as of the Honourable Supreme Court makes it abundantly clear that points raised in this writ,petition were neither the subject- matter before the Division Bench of this Court or before the Honourable Supreme Court nor the same were agitated before the two Courts and no findings to this effect were recorded either by the High Court or by the Honourable Court in the above mentioned judgments, hence, the said judgments cannot be held as a bar for respondent No.1 for claiming himself as Nazim of the Union Council before the completion of 2nd phase of Internal recall motion within the meaning of subsection (6) of section 85 of the Ordinance.
10. As regards the last point, though the same has not been specifically agitated by the learned counsel for the parties yet in the public interest and in order to remove any doubt to this effect, authoritative determination of the powers of Zila Nazim, Secretary Local Government and Election Authority in the matter of election under the Local Government Ordinance, especially for regulating the procedure of recall motion under Punjab Local Government Ordinance, as well as under the Recall Motions Rules, 2003, is deemed necessary. From the reading of entire Local Government Ordinance, it is nowhere provided that Zila Nazim can issue any Notification debarring any Nazim or Naib Nazim of the Union Council from performing his functions under the Punjab Local Government Ordinance. The only provision in this respect is contained in subsection (6) of section 85 of the Ordinance, which is to the effect that District Government shall notify the result of approval of the recall motion and further it is provided in section 13 of the Ordinance that District Government shall be a body corporate and may sue or be sued through District Co-ordination Officer. Similarly, section 9 of the Ordinance provides that all the agreements/contracts by the District Government shall be issued through the District Co-ordination Officer. Section 11 of the Ordinance also makes the D.C.O. Responsible for the Secretariat of the Zila Nazim and lastly Rule (vii) of the Punjab District Government Rules of Business, 2001 provides that the District Co-ordination Officer shall be the official head of the District Administration. The nutshell of above cited provisions is that it is the D.C.O. Who is authorized to issue Notification under subsection 6 of section 85 of the Ordinance and Zila Nazim neither has any authority nor he figures anywhere in the Ordinance with regard to election matters, especially the matters relating to no confidence motion or for the purposes provided under the Ordinance for declaring the Internal recall motion effective or to issue any Notification pursuant thereto. Similarly, the Secretary Local Government has no role under the Punjab Local Government Ordinance either for the purposes of election matters or passing any order regarding the Internal recall motions in the garb of exercising powers conferred on him under the Punjab Local Government (Appeal) Rules, 2002. These Rules have been framed under sections 190 and 191 (1) of the Ordinance. Similarly, Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 have been framed in exercise of the powers conferred on the Governor under section 191 of the Ordinance. These Rules being later in time and covering the specific subject relating to recall motions against Nazim and Naib Nazims have not only overriding effect on the Punjab- Local Government (Appeal) Rules, 2002 but also confer powers exclusively on the Election Authority constituted in pursuance of section 24 of the Ordinance for carrying out recall motions. These Recall Motion Rules, except talking of Election Authority do not speak of any authority like Secretary Local Government. These Rules came under scrutiny by the Honourable Supreme Court of Pakistan in Khawaja Ahmad Hassaan v. Government of Punjab and others PLD 2004 SC 694 and the Honourable Supreme Court validated these Rules except Rule 14, meaning thereby that for the purposes of recall motion only the Election Authority is competent to regulate the procedure and declare the recall motion adopted or not and it is only on the authentication by the Election Authority in the official Gazette by the Election Authority, that the District Government has to issue Notification in terms of subsection (6) of section 85 of the Ordinance. The net result of this discussion is that, neither the Zila Nazim could issue any Notification under any provision of section 85 of the Ordinance nor the Secretary Local Government has any role to play in the election matters under the Ordinance, especially with regard to recall motion which is the exclusive domain of the Election Authority. In view of the above, the Notification issued by the Zila Nazim on 28-5- 2004 declaring respondent No.1 having ceased to hold the office of Nazim Union Council w.e.f. 11-8- 2003 and also the Notification issued by the Secretary, Government of the Punjab, Local Government and Rural Development Department through section Officer (REG) dated 30-9-2004, are declared void and without lawful authority.
11. Resultantly, this writ petition is dismissed and it is declared that although first phase of Internal recall motion against the respondent No.1 was successfully carried by the members of the Union Council on 11-8-2003 yet on the basis of said phase of Internal recall motion only, neither the post of Union Nazim of Union Council No.22, Sanjar fell vacant nor the petitioner could have been elected as officiating Nazim of the said Union Council in terms of section 156(7) of the Ordinance. Further the order passed by the Zila Nazim, Bahawalpur dated 28-5-2004 declaring respondent No.1 having ceased to hold the office of Union Nazim of the said Union Council w.e.f. 11-8-2003 is declared void and without lawful authority and the respondent No.1 shall be deemed to be the Nazim of Union Council No.22, Sanjar Tehsil and District, Bahawalpur till the completion of final phase of Internal recall motion as contemplated under section 85(4) of the Ordinance and issuance of Notification to this effect by the District Government under section 85(6) of the Punjab Local Government Ordinance, 2001. There is no order as to costs.