' SYED SHABBAR RAZA RIZVI, J.--- The learned counsel has filed this writ petition on behalf of the petitioner. According to the learned counsel, the petitioner was elected as Nazim Union Council No,273, Jinnah Town, Faisalabad. On 20-4-2006, a recall motion was tabled before the House which was moved by Javed Qamar, General Councillor and seconded by Baga Masih, Councillor. During the deliberations in the House of the Union Council, the petitioner addressed the House and defended himself. The petitioner was able to satisfy the members and on the same basis motion of recall was withdrawn by the mover and seconder.
2. The learned counsel submits that the petitioner was on leave, for 30 days commencing from,27- 10-2006. While he was on leave another motion on 28-10-2006 was moved by Haji Muhammad Younas, Councillor and Muhammad Naeem Raza, Councillor, seconded the same. That 30-10-2006 was fixed by the Naib Nazim Union Council for deliberation of the House. On 1-11-2006, a meeting was convened for balloting. According to the learned counsel for the petitioner above sittings were called in violation of provisions of section 85 of the Punjab Local Government Ordinance, 2001.
Motion of recall was carried, in hasty manner on 1-11-2006 followed by a Notification whereby the petitioner has been ousted from the office.
3. The grievance of the learned counsel for the petitioner is that second recall motion before the expiry of statutory period i,e, one year, as contemplated in subsection (8) of section 85 of the Ordinance was not permitted. Another grievance of the learned counsel for the petitioner is that the petitioner was deprived of a statutory right to defend himself as contemplated in subsection
(7) of section 85 of the Ordinance, 2001. He further adds that since. The petitioner was, on leave, the proceedings on 30-10-2006 and 1-11-2006 could not have taken place in his absence.
4. On the other hand, the learned counsel for the respondents submitted that provisions of subsection (8) of section 85 of the Ordinance are not applicable in this case. He further submitted that motion of recall was in knowledge of the petitioner and he was never on leave. According to him, the Secretary Union Council sent agenda of the meeting through Naib Qasid on 28-10-2006 but the petitioner refused to receive the same. He further submitted that on 28-10-2006, the office note written by the Secretary Union Council also supports the said fact. According to the report, the Nazim (petitioner) and Naib Nazim were informed by hint on 28-10-2006 on telephone. Thereafter, he personally went to the house of the petitioner with a copy of the agenda. According to the report, the Secretary met the petitioner, the motion of recall was also read by the petitioner and thereafter he refused to receive the same. The office note is dated 29-10-2006.
5. I have heard the learned counsel at length and also perused the provisions of sections 85 and 92 of the Punjab Local Government Ordinance, 2001. I have also gone through the judgments cited by both sides. The first grievance of the petitioner that second motion of recall could not have been filed against the petitioner before the expiry of one year from the date of rejection of earlier motion on 20-4-2006 is not well-founded. The facts narrated above show that the first motion to recall was deliberated in the House of the Union Council on 20-4-2006, and, thereafter, the same was withdrawn by proposer and seconder. Mian lrshad Anjum, Naib Nazim who presided the meeting also allowed withdrawal of the said motion. This is also clear from Annexure "A" appended by the learned counsel for the petitioner himself. That means the first motion was never placed before the House for its approval or rejection as contemplated in subsection (4) of section 85 of the Ordinance, 2001. In my considered view, the provisions of subsection (8) of section 85 of the Ordinance are contingent upon and applicable to provision of subsection (4) instead of subsection
(3) of section 85 of the Ordinance. The proceedings of 20-4-2006 relate to subsection (3) of section 85 and not to subsection (4) of section 85 of the Ordinance. During the course of arguments, the learned counsel for the petitioner also agreed to the above legal position and did not insist upon this point.
6. The other contention of the learned counsel for the petitioner that the petitioner was on leave and proceedings on 30-10-2006 and 1-11-2006 were conducted in his absence and the petitioner was also deprived of a statutory rightprovided under subsection (7) of section 85 of the Ordinance are also not correct. According to the learned counsel for the respondents, the petitioner was duly informed by the Secretary, Union Council and Naib Qasid of the Union Council but he deliberately, and foreseeing the outcome, of the motion of recall, opted to frustrate the democratic and legal process as contemplated in section 85 of the Ordinance. In this regard, as noted above, he referred to the report and office note of the Secretary Union Council dated 28-10-2006 and 29-10-2006.
Therefore, to ascertain the truth and to rule out any chance of doubt, I summoned Secretary Union_ Council No,273, City Faisalabad, and the Naib Qasid of the same union council vide my order, dated 1-12-2006. Both of them have appeared before me, their separate statements have been accordingly recorded. According to Yasin, Naib Qasid, when he approached the petitioner, a lady informed him that the petitioner had gone with his family to Lahore, and he was not available, whereas, Muhammad Yousaf, Secretary Union Council No,273, stated that he informed the petitioner by sending agenda of meeting dated 30-10-2006 through Yasin, Naib Qasid. He further stated that he himself spoke to the petitioner and Naib Nazim on telephone followed by his meeting with both of them. According to him, petitioner Arif Hussain Bukhari refused to receive the agenda and also declined to participate in the meeting. The above statement of the Secretary provides sufficient evidence that the petitioner knew that motion of recall was tabled as detailed above and date 30-10-2006, for deliberation was fixed followed by another meeting, for secret balloting on d-11-2006, for approval or rejection of the motion of recall.
7. At this juncture, I must explain that under section 85 of the Ordinance, 2001, two meetings are contemplated, one meeting is required under subsection (3) of section 85 for the purpose of deliberation upon a motion for recall of Union Nazim on grounds detailed in subsection (1) of section 85 of the Ordinance. Under subsection (2), Union Naib Nazim is required to call session of union council within three days if the union council is not already in session. If the union council is already in session, the motion of recall is required to be taken up for deliberation on the next day from its receipt or if the union council is not in session, then within three days on receipt of the notice. It may also be made clear that right of address mentioned in subsection (7) is to be exercised by. The Nazim in this meeting and not the meeting envisaged in subsection (4) of section 85 of the Ordinance for secret balloting. After the deliberations if the House of the Union Council decides to further proceed on the motion, it will be placed before the House and if the motion is approved by 2/3rd majority of the votes of its total membership through a secret ballot, the Nazim shall cease to hold office forthwith. The Ordinance or section 85 does not indicate when or after how many days meeting/sessions of the union council shall be called for voting through secret ballot after holding of meeting for deliberation provided under subsection (3) of section 85.
8. As it is evident from the statement of Secretary Union Council in the Court, the petitioner was in knowledge of institution of motion of recall against him. The Secretary also informed him of meeting summoned for the same purpose on 30-10-2006 but he chose in his wisdom to abstain from the meeting. Therefore, he himself opted not to exercise his right mentioned in subsection (7) of section 85 of the Ordinance, he was not deprived of the right to defend himself before the Session. He could have defended himself as he had already done on 20-4-2006 when first motion of recall was withdrawn during the deliberation of the House. Presumption of genuineness is attached with official documents wider Article 90 of the Qanun-e-Shahadat, 1984. Likewise, full faith and credit is given td public acts and record under Article 150 of the Constitution.
9. Upto this point, the Court was in position to gather undisputed facts from the documents attached by the parties and statement of the Secretary and Naib Qasid Union Council. However, this Court cannot enter into further inquiry or to gather further facts which are disputed by IF both parties or either of them under constitutional jurisdiction. Thus, for the reasons and discussion noted above in the preceding paras this writ petition is dismissed.