SALIM KHAN, J.--- This judgment shall also dispose of Writ Petition No,129 of 2006 titled Wasim Hassan Raja v. Secretary Local Government and others, Writ Petition No,130 of 2006 titled Muhammad Ashraf v. Secretary, Local Government and others and Writ Petition No,131 of 2006 titled Dil Nawaz v. Secretary Local Government and others. Khush Rang, Wasim Hassan and Muhammad Ashraf were elected against the seats for the Muslim (General) Members of the Union Council Bhirkund in District Mansehra while Dil Nawaz was so elected against the seat reserved for peasants/workers.
2. Dil Nawaz and Muhammad Ashraf submitted an application/notice to the Naib Union Nazim Bhirkund for convening a meeting of the Union for the internal recall of the Union Nazim Bhirkund.
This application/notice was received in his office on 22-4-2006 through Secretary, Union Council Bhirkund (Mansehra). A report was written by the Secretary, witnessed by two Chowkidars, that the Naib Union Nazim was not available and was expected to go to Lahore. Another controversy also started in the meanwhile when the present petitioners submitted applications against the Union Nazim Bhirkund regarding the distribution of materials to the Internally Displaced Persons due to earthquake. An inquiry was initiated by the Zilla Nazim and a report was prepared to the effect that the four petitioners had received money for preparation of Ration Cards from certain persons, and they had misconducted themselves. In the meanwhile, the Zilla Nazim had issued order No,Z-1/2002 dated 26-4-2006 vide which he had made allegations against Dil Nawaz and other petitioners and had informed them "pending final decision on the matter your powers and functions as members Union Council are hereby held in abeyance/suspended". In the comments submitted by District Nazim of District Mansehra, he categorically stated that he had not suspended the powers and functions of the petitioners. He took the stand that the office letter mentioned above dated 26-4- 2006 was only a notice to the petitioners and the powers and functions were not suspended by him.
3. During the arguments, the learned counsel for the petitioners showed his satisfaction to the extent of District Nazim and appreciated the gesture that the District Nazim-respondent had not reiterated that the powers and functions of the petitioners were suspended. It is, however, worth- mentioning at this stage that the alleged resolution was submitted on 22-4-2006 while the letter was issued by the Zilla Nazim on 26-4-2006.
4. The learned counsel for the petitioners referred to section 85 of the N.-W.F.P. Local Government Ordinance, 1985 and submitted that it was the opinion of a member of the Union Council to the effect that there was a reason to believe that the Union Nazim was acting against the public policy or against the interest of the people or was inactive or negligent to serve the needs of the people, that grounds of such opinion were mentioned in the application/notice, and that the details were to be mentioned in the meeting to be called. He referred to the copy of the alleged resolution wherein it has been mentioned that Dil Nawaz and Muhammad Ashraf, the proposer and seconder, had the belief according to their opinion that Union Nazim Union Council Bhirkund (Muhammad Asif Khan son of Ghulam Khan) was acting against the public policy and against the interest of the people and had neglected the work of the residents of the Union Council and had, therefore, lost the confidence of the members of the Union Council. He further contended that the Naib Union Nazim was duty bound to summon a session of Union Council within three days as the Union Council was not already in sessions.
5. The comments of the Zilla Nazim were obtained who, as aforementioned, denied that he had suspended the powers and functions of the petitioners and contended that only notice was sent to them to provide them a chance of hearing. The words of the letter have been quoted above which unequivocally mentioned that the powers and functions were suspended, but the denial of the Zilla Nazim has been accepted in good faith.
6. The learned D.A.-G. contended that let the law take its own turn and the law must be followed in all circumstances.
7. The Naib Union Nazim was directed on the last date through his then counsel to either engage an independent counsel for himself or appear personally to argue his case. He appeared along with Mr. Adam Khan Jadoon, Advocate and the latter requested for adjournment on the ground that he was engaged today. He was told that the matter has already been delayed from 22-4-2006 till today and, in order to avoid further delay, the Naib Union Nazim was directed in advance to engage a counsel, and his engaging counsel today cannot be allowed to occasion further adjournment.
8. The Naib Union Nazim categorically admitted that he received the written application/notice of the petitioners on 28-4-2006 but did not call the session as he believed that the powers and functions of the petitioners were then suspended by the Zilla Nazim. He submitted that he will recall the session as and when a fresh petition is received by him because the previous petition was undated. He was told that the previous notice by the petitioners to him was still alive and, in the light of his admission that it was received by him on 28-4-2006, the Naib Union Nazim had no other alternative but to act in accordance with law under section 85 of the N.-W.F.P. Local Government Ordinance, 2001.
9. The learned counsel for the Union Nazim Bhirkund argued the case in detail and submitted that the petitioners had not come to the Court with clean hands and had suppressed the fact of inquiry against them. He referred to section 136 of the N.-W.F.P. Local Government Ordinance, 2001 and submitted that an inquiry was ordered and conducted against the petitioners under the orders of the Zilla Nazim. He read subsection (1) and subsection (1-A) along with subsection (2) of section 136 mentioned above. According to subsection (1) thereof, the Zilla Nazim could require any Tehsil Nazim, Town Nazim or Union Nazim in the District to conduct an inquiry into any matter concerning respective Local Government and submit the report along with the proceedings of the inquiry to the Zilla Nazim. This subsection did not apply to the circumstances of the case. Subsection(1-A) provides that the Zilla Nazim could authorize any officer to conduct further inquiry if he was to satisfied with the inquiry already conducted by the concerned Nazim. This subsection was also not applicable as neither the Union Nazim was directed to conduct an inquiry nor he could be directed to conduct such an inquiry in his own case nor such an inquiry was conducted by the Union Nazim according to the directions of the Zilla Nazim.
10. He admitted that there was no law to authorize the Zilla Nazim to conduct an inquiry in a case when there was dispute between the concerned Nazim and the Members, specially in the circumstances when proceedings regarding the internal recall were, or were likely to be, initiated against the concerned Nazim. He submitted that it was in good faith that the Zilla Nazim ordered the conduct of inquiry. He, however, admitted that the Zilla Nazim had no power to suspend the powers and functions of the members of the Union Council. He further admitted that the report of the inquiry, if it could, even, be conducted under the law (no such law is available) in the circumstances of the case, that report was to be sent to the Code of Conduct Committee of the Council and further proceedings were to be conducted by the Committee where proceedings for disqualification against a member could be invoked. He was unable to show that the Naib Union Nazim had any right to delay the calling of the session of the Union Council by waiting for the disqualification of the members who had submitted the application/ notice/resolution/request to him. The Zilla Nazim did not have powers to conduct inquiry in the circumstances of this case as there was a dispute between the Union Nazim and the members and the law had provided a proper procedure for resolution of the said dispute. The Zilla Nazim could initiate such an inquiry through the Union Nazim, after the decision of the internal recall motion/notice. The Union Nazim, if not recalled, or the Union Nazim who would be elected after the success of the resolution against the present Union Nazim, could be asked to conduct the inquiry under section 136 of the Ordinance.
He was legally wrong to declare that he had held in abeyance/suspended the powers and functions of the members of the Union Council as he was not authorized by any law to do so. The petitioners were full-fledged members of the concerned Union Council until a decision was finally given against them for their removal from such membership, and they had all the powers and functions, as well as the rights and liabilities, of such members of the Union Council. The Naib Union Nazim had no authority to postpone the calling of session of the Union Council on the ground that the members had no powers and functions which were allegedly suspended/held in abeyance by the Zilla Nazim illegally. All the office bearers of the Local Government under the N.-W.F.P. Local Government Ordinance, 2001 are expected to know the law regarding their Local Governments, and ignorance of law is no excuse for anybody, what to say of the elected office-bearers.
11. In these circumstances, we do not find any merit in the contentions of the Union Nazim or Naib Union Nazim. But the Zilla Nazim has already declared that he had no intention to suspend the powers and functions of the petitioners and he considered the mentioned letter only a notice to the petitioners in spite of the fact that he had, illegally, declared that he had suspended/held in abeyance the powers and functions of the petitioners.
12. The learned counsel for respondent No,3 of the Union Nazim further contended that the prayer of the petitioners was only to the extent of suspension of powers and functions of the petitioners, which order has already been declared by its author as non-existent, and the petitioners were left with no grievance. It has categorically been mentioned by the petitioners in their writ petitions that Naib Union Nazim was under legal obligation to summon the session of the Union Council. An application for the grant of prayer to the effect that the Naib Union Nazim be directed to call the sessions of the Union Council in accordance with law was also submitted. But, in order to avoid it, proceedings of suspension of powers and functions were initiated against them.
13. This fact, as the illegality committed by the Union Nazim Bhirkund, has come to our knowledge during the proceedings and is admitted by the Naib Union Nazim himself today. The whole proceedings were regarding avoidance of calling of the session of Union Council.
14. We, therefore, accept the writ petition, declare that the Zilla Nazim has already withdrawn his illegal order of suspending/holding in abeyance the powers and functions of the petitioners as members of Union Council Bhirkund through his comments, and that the Naib Union Nazim Bhirkund is duty bound to call the session of the Union Council Bhirkund within the next three days from today in accordance with the request/resolution already submitted by Dil Nawaz and Muhammad Ashraf on 22-4-2006 which was received by the Naib Union Nazim on 28-4-2006 and there is no need for submission of any fresh request/ resolution for the said purpose. We order accordingly.