' The petitioners are elected Naib Nazims of their respective Union Councils, therefore, by virtue of their office are also members of Tehsil Council, Choa Saidan Shah, District Chakwal under section 65 of the Local Government Ordinance, 2001. The House of Tehsil Council consists of 11 members.
Seven members are Naib Nazims of their respective Union Councils and four members are elected on special seats.
2. According to the learned counsel for the petitioners, the Tehsil Council, on 30-10-2004, approved Annual Development Plan for the year 2004-2005. Ten members attended the meeting out of 11.
The meeting was presided by Naib Nazim Tehsil Council and the proceedings were conducted in accordance with the law. Another meeting was called by the Convener (Naib Nazim) for 30-11- 2004. However, the meeting was not presided or attended by the Convener (Tehsil Naib Nazim). Six members came into meeting, one of them presided the meeting and five sat in the House. In the said meeting, the Development Plans/Schemes which were approved on 30-10-2004, modified.
3. The learned counsel for the petitioners has challenged the proceedings of the Tehsil Council dated 30-11-2004, on the ground that a notice was issued on 24-11-2004, for the meeting on 30-11- 2004. In this way, the mandatory time of 7 days, was not provided to the Members. He further contends that second meeting of 30-11-2004 could have been convened only on requisition of 2/3rd members of total membership in writing. He also contended that meeting of 30-11-2004 was conducted illegally and Plans previously approved by the Council were modified in the absence of required quorum under section 69(vi) of the Ordinance. He concluded his arguments urging that for the above reasons, proceedings of the Council dated 30-11-2004 were illegal and violative of mandatory provisions of the Local Government Ordinance, 2001, hence merit to be declared void, unlawful and without lawful authority.
4. On the other hand, the learned counsel for the respondents submits that functions of Tehsil Administration and Tehsil Council are enumerated in the Ordinance. Under the law, the Council has power only to approve Plans prepared by Tehsil Administration. The Plans approved by the Council in its meeting dated 30-10-2004 were not prepared, proposed or presented by Tehsil Administration, therefore, the Council was not competent to approve the said Development Plans.
The Plans which were subsequently approved in the meeting of 30-11-2004 were recommended and presented by Tehsil Administration and were approved by Tehsil Council which is absolutely legal in the eyes of the Punjab Local Government Ordinance, 2001. He also submits that under section 69(vi) of the Ordinance, the requirement of quorum was fulfilled as six members of Council participated in the said meeting including one member who presided the meeting. For the purpose of quorum a presiding person is also counted. The learned counsel did not make any submission on point of notice for 7 days.
5. I have heard the learned counsel for the parties with due attention. I have also minutely red the relevant record as well as provisions of the Constitution and the Ordinance with assistance of the learned counsel.
6. In the scheme of the Punjab Local Government Ordinance, 2001, the Tehsil Administration is provided in Chapter 5. The composition and functions are also given in the same Chapter. The Tehsil Municipal Administration consists of Tehsil Nazim, Tehsil Municipal Officer, Tehsil Officers, Chief Officers and other officials of the Local Council service, etc. The functions of Municipal Administration are given in section 54 of the Ordinance. Subsection (j) of section 54 describes function of preparing budget long term and annual development programs in collaboration with the Union Council, under the direction of Tehsil Nazim. Tehsil Nazim is head of Tehsil Municipal Administration under section 56 of the Ordinance, and under section 57(b), his function is to formulate strategies for development of Municipal infrastructure and improvement of delivery of the Municipal service of the Tehsil. Combine reading of the above sections show that Telisil Municipal Administration headed by its Nazim prepares development plans/schemes.
7. Chapter 6 provides composition of Tehsil Councils, Tehsil Councils consist of Naib Nazim of all Union Councils in the Tehsil and members elected on reserved seats. In section 67 of the Ordinance, functions of Tehsil Council are enumerated. Sub-section (iv) of A section 67 of the Ordinance empowers Council to approve long and short term development plans. Reading of section 67 reveals that the function of the Council to confer approval to the plans prepared by the Tehsil Municipal Administration. The above two distinct organs of Tehsil Government and their functions are distinctly and separately given and needed to be understood and followed to fulfil the objectives of the Ordinance. The learned counsel for the petitioners contends that plans which were approved by the Council in its sessions dated 30-10-2004 were prepared by the Tehsil Municipal Administration on 30-6-2004 in a special meeting of Tehsil Council presided by Mirza Khurshid, Convener. The learned counsel for the petitioner has drawn my attention at page 7 which are proceedings of 30-6-2004. According to, him, the schethes mentioned at page 7 were subsequently approved by the Council on 30-10-2004. Page 7 refers (in Urdu) a request from the Tehsil Nazim to members to submit schemes worth Rs,700,000 in the office of Tehsil Municipal Administration so that development work for the people and area could be completed. At page, 7 no mention is made'of any scheme prepared by Tehsil Municipal Administration. Furthermore, the proceedings of 30-10-2004 also do not mention proceedings of 30-6-2004 or any development scheme passed on 30-6-2004 by the Tehsil Administration.
8. The learned counsel for the petitioner has also objected meeting of 30-11-2004 on the ground that 7 clear days were not given to the members. According to him, the notice of the meeting was issued to the Members of the Council on 24-11-2004 for a meeting to be held on 30-11-2004.
According to him, the day of 24-11-2004 could not be counted and thereafter six days were left.
However, the learned counsel where it is mentioned that the day on which notices are issued is not to could not show me any provision of the Ordinance or by-laws/rules be counted to compute the mandatory seven days between issuance of notice and actual holding of the meeting of the Council.
9. The third objection of the learned counsel for the petitioners is that proceedings of 30-11-2004 were conducted in absence of the quorum. Section 69 of the Punjab Local Government Ordinance, 2001 provides procedure to conduct the business of a Tehsil Council.. Subsection (iii) of section 69 provides decisions of the Tehsil Council shall be taken by resolutions passed by a simple majority of the Members present and voting. Subsection (iv) of section 69 provides that all meetings of the Tehsil Council shall be presided over by the Naib Tehsil Nazim. Subsection (v) of section 69 provides that in its first session, the Tehsil Council shall elect a panel of presiding officers in order of precedence of not less than three members who shall in the absence of Naib Tehsil Nazim preside over the meetings of the Tehsil Council. Subsection (vi) of section 69 provides that the quorum of the meetings of the Tehsil Council shall be 51% of its total membership. The proceedings of 30-11- 2004 show that six members attended the meeting and one of those six presided the meeting. The record does not show that the said Member was elected as one of the Members of panel in first session of the Tehsil Council. In any case, in House only five Members were present and voted which were less than 51% of total membership of the Tehsil Council. As mentioned in para.1 the House of Tehsil Council, Choa Saiden Shah consists of 11 members. To complete the quorum, at least six members were required in the house present and voting. The D learned counsel for the respondents contended that member presiding the meeting is included to ascertain whether the quorum was complete or not in terms of Sub-section (vi) of section 69 of the Ordinance. I am afraid that the contention of the learned counsel for the respondents is not tenable. Section 69 does not indicate that a person who is presiding whether a Naib Tehsil Nazim a member of the panel shall be counted to determine the quorum in a situation like the one subject matter of the present writ petition.
10. Guidance may be sought from the Constitution of Pakistan since provisions of the Ordinance are not clear on this point. Article 53 of the Constitution of Islamic Republic of Pakistan, 1973 provides that in absence of Speaker or Deputy Speaker, such Member, who is to be determined by rules of procedure of the Assembly shall preside at the meeting of the Assembly. Similarly, Article 55 of the Constitution of Islamic Republic of Pakistan provides that if at any time during a sitting of the National Assembly the attention of the person presiding is drawn to the fact that less than 1/4th of the total membership of the Assembly is present, he shall either adjourn the Assembly or suspend the meeting E until at least 1/4th of such membership is present. The reading of Article 55 shows that a person who is presiding the meeting, has certain functions to perform. For example, he cannot allow the meeting of the National Assembly to proceed in the absence of the required quorum. He has been ordained either to adjourn the Assembly or suspend the meeting until the quorum is completed. He has to regulate the House, even may expel a member from the House in certain circumstances. Since the Speaker or the Presiding person has been assigned a clear and distinguishable role from members sitting and participating in the meeting, he cannot be counted with them to determine whether the quorum is complete or not. In fact the proceedings without required quorum are nullity in the eye of law, in view of the provisions of Article 55 of the Constitution. Article 100 (4) of the Indian Constitution provides; "if at any time during a meeting of a House there is no quorum, it shall be the duty of the Chairman or Speaker or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum." The phrase, "it shall be the duty of the Chairman or Speaker" sounds more stronger than the language employed in clause(ii) of Article 55 of our Constitution, so the reading of the Indian Constitution also shows that a Speaker or a person presiding a meeting of a House has mandatory duties to perform. How could such person E perform such mandatory duties if he is also part of the Members sitting in the House which includes Government party and Opposition? How can he remain neutral? Under Article 55 of the Constitution person presiding is not allowed to vote except in case of equality of votes. This idea is also in conformity with neutrality of presiding person. There can be a view that since a presiding person can vote in certain circumstances as mentioned in Article 55 of the Constitution, he should also be counted to determine the quorum. It would not be a correct view because stage for voting comes after a debate on a issue, whereas, question of quorum is a prerequisite consideration for validity of proceeding to be taken care of a the very outset of any proceeding in a House. The proceedings cannot start, at all, unless condition of quorum is fulfilled. Therefore, to be allowed to vote is different than to be counted in quorum.
11. In view of the above discussion, in my humble view a person who is presiding a meeting cannot be counted in the quorum. Any meeting and its proceedings in absence of the required quorum are F nullity in the eye of law. For reliance, Messrs Bawa Jute Mills Ltd., v. The Commissioners of Narayanganj Municipal Board, PLD 1958 Dacca 103 at 109. It was held by Andra Pardesh High Court that the word `quorum' denotes the number of members of or any of persons whose presence is requisite in order that business may validly be transacted by the body and that its acts may be legal. The quorum is thus foundation for validity of the meeting, S.Seatah Ramia Naido v. Ongole Cooperative Bank, AIR 1974 Andra Paradesh 49. In another judgment of the Indian Supreme Court it was held, "Quorum denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful," (The Punjab University, Chandi Garh v. Vijay Singh Lamba, AIR 1976 SC 1441).
12. In view of the above discussion in para. 7, the meeting of 30-11-2004 is held as illegal and violative of provision of section 54 of the Punjab Local Government Ordinance, 2001. The Tehsil Council could have only approved such development plans which were prepared by the Municipal Administration. The meeting of 30-11-2004 is also declared illegal and without jurisdiction and inconsistent with the provision of section 69 of the Ordinance. The member who presided this meeting, record does not show as he ever was elected as one of the members of the panel.
Secondly, in my humble opinion, the member who presided could not be counted as a 6th member; therefore, only five members participated in the proceedings of the House which were less than 51% of the total membership i,e, 11 members of Tehsil Council, Choa Saiden Shah. The Council was not competent to approve the said development plans in its meeting dated 30-11- 2004 as it lacked required quorum. The Tehsil Municipal Administration and Tehsil Council, Choa Saiden Shah are directed to reconsider development plans/schemes subject-matter of this writ petition afresh and to proceed in this regard in accordance with law discussed above.
13. Before I part with this judgment, I may record few observations. No political system can work successfully in any society unless people honestly observe the rules of the game. The new Local Government System can also not succeed unless the concerned person i,e, Government functionaries, elected persons and electors realize their responsibilities and also conform to the limitation placed on them under the law and rules. The winner must be allowed to complete his term and execute his plans, the loser must be respected and accommodated and not to be treated like a defeated enemy. With these observations, this writ petition is disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.