SYED 'SHABBAR RAZA RIZVI, J. According to the learned counsel for the petitioners, petitioners are sitting members of Union Council No. 102, Shah Kamal, District Lahore. Petitioners moved a "Motion" in the Union Council for the recall of respondent No. 3, Naib Nazim of the said Union Council under Section 92(1) of the Punjab Local Government Ordinance, 2001 (hereinafter referred as the Ordinance). Notices were served upon all the Members but respondent No. 3 refused to receive the same. However, upon receipt of "Motion" the Union Nazim summoned a session of Union Council on 24.3.2007. The "Motion" was deliberated on 24.3.2007. After deliberations, "Motion" was approved with majority by the members of the Union Council and for further proceedings under sub-section
(4) of Section 92 of the Ordinance, the matter was referred to the Election Commission of Pakistan.
2. The learned Election Commission of Pakistan vide its letter dated 31.3.2007 appointed Ch. Muhammad Ramzan, Civil Judge, Lahore as a Returning Officer for the conduct of proceedings of Recall "Motion" through a secret ballot against Naib Nazim i.e. Respondent No. 3 on a date to be fixed by the learned Returning Officer himself in consultation with the Nazim of the Union Council.
3. The learned Returning Officer fixed 7.4.2007, a date to have voting on the "Motion" through a secret ballot. The above date was conveyed to all the members of the Union Council and all other concerned authorities.
4. A Notification was issued by Town Municipal Officer, Town Municipal Administration, Samanabad Town, Lahore on 3.4.2007 which reads as under--- "In pursuance of Section 89-A(1) of PLGO, 2001, the ""Resolution "" of no vote of confidence passed by the Union Council Administration-102, Shah Kamal, in its meeting held on 24.3.2007 against Syed Tauseef Shah, Naib Nazim UC-102 has been set aside by simple majority of Town Council Samanabad in. Its emergent meeting held on 31.3.2007 being against the interest of the people."
5. The learned Returning Officer wrote a letter dated 7.4.2007, to the Provincial Assistant Election Commissioner, Punjab, Lahore narrating the above facts to seek guidance to proceed further. The Election Commission of Pakistan responded to the Returning Officer vide order dated 11.4.2007, stating therein, that the Hon'ble Chief Election Commissioner required Returning Officer to conduct forthwith the proceeding of Recall "Motion" through secret ballot against respondent No. 3 in accordance with law. In pursuance of the letter of the Election Commission of Pakistan dated 11.4.2007, the Returning Officer fixed the date for the conduct of secret balloting to consider "Motion" for Recall as 17.4.2007.
6. The order of the learned Returning Officer dated 11.4.2007 was challenged by respondent No. 3 in writ petition No. 3426 of 2007 which is being heard alongwith this Writ Petition. Since the matter was already pending before this Court in the instant writ petition, the operation of the order dated 17.4.2007 passed by the learned Returning Officer in pursuance of order of Election Commission dated 11.4.2007 passed by the learned Returning Officer in pursuance or order of Election Commission dated 11.4.2007 was suspended by this Court on 20.4.2007 in writ petition No. 3426-07.
7. The learned counsel for the petitioner has called in question the Notification of T.M.A. Dated 3.4.2007, whereby deliberations of Union Council No. 102 to consider "Motion" for Recall was set aside under Section 89-A of the Ordinance. The learned counsel referred to Section 89(3) to submit that all decisions of the Union Council are taken by Resolution passed by a simple majority of its total membership, whereas under Section 92(4) it is provided that "Motion" of Recall shall be passed by 2/3 majority of total membership. The learned counsel submitted that comparison of Sections 89 and 92 suggest that both provisions are distinct and distinguishable from each other and they are meant for different subjects/purposes. The learned counsel further submitted that in case of failure in any "Resolution" under Section 89(3) no consequences are prescribed, whereas, in case of failure of a "Resolution" under Section 92, consequences are given under subsections (5) and (8). To further elaborate, he contended that in case of, approval of "Resolution" under Section 92, a final Notification is issued by the Chief Election Commissioner, whereas, in case of "Resolution" approved under Section 89, no such Notification is required.
8. The learned counsel further submitted that Section 89-A is applicable only to "Resolution" passed under Section 89 of the Ordinance and it is not applicable to "Resolution" passed under Section 92 of the Ordinance.
9. The learned counsel further submitted that under Section 89-A of the Ordinance, a "Motion" can be initiated only by the Town Municipal Administration and not by any individual. Finally, learned counsel submitted that the 'impugned Notification/"Resolution" was ultra vires the provisions of the Punjab Local Government Ordinance. 2001.
10. Before I discuss the arguments of learned counsel for respondent No. 3 and make my appreciation. I would like to mention and examine the arguments of the learned counsel for the 'petitioners. According to the learned counsel for the petitioners, under Section 89-A decisions are made by simple majority of its total membership to set aside a "Resolution" of the Union Council on a "Motion" initiated by the Tehsil Municipal Administration. According to him "Motion" of Recall can only be approved by a 2/3 majority of the total membership of the Union Council. The distinction noted by the learned counsel for the petitioners is correct and accepted but for different reasons.
Section 89-A empowers T.M.A. To set aside a "Resolution" of the Union Council. "Resolution" means some thing that is resolved; some thing that is determined upon. (Advanced Law Lexicon Vol. IV page 4107 by Justice Chandrachud). According to another definition, when a "Motion" is put before a meeting has been agreed upon it becomes a "Resolution". "Resolution" means a declaration of opinion or a recommendation in the form of either approval or disapproval of the House of an act on Government Policy. That is why Section 89(3) of the Ordinance says that all decisions of the Union Council shall be taken by "Resolution" passed by a simple majority of its total membership.
This means that decisions of a Union Council shall be taken by a formal expression or opinion of the simple majority of its total membership. On the other hand, Section 92 does not talk about voting on "Resolution". In Section 92 word "Motion" is used for the purpose of Recall of Naib Union Nazim. "Motion" means a formal proposal that is discussed and voted on at the meeting (Oxford Advance Learners Dictionary, page 995). According to Section 92 of the Ordinance, "Motion" relates to Recall of election of Naib Nazim, whereas Section 89 relates to the conduct of business of the Union Council. According to the Advance Law Lexicon, Vol. I, page 133, above-mentioned, "Administrative business" means, the management of affairs, including the taking of decisions.
"Business" too is comprehensive word and has to be construed in a particular context. In the context of Chapter VII (Union Council) Conduct of the Business of Union Council means of the functions or routine work of the Union Council. This will become further clear if we refer to Sections 87 and 88 also. Section 88 provides functions of the Union Council and Section 89 prescribes the method how to perform those functions. This is the reason that Section 89 closely follow Section 88.
All functions of a Union Council mentioned in Section 88 are required to be conducted or those functions are to be performed by a Union Council through decisions taken by "Resolution" passed by a simple majority of its total membership. Section 89-A follows Section 89. That is why it provides that on a "Motion" initiated by the Tehsil Municipal Administration that Tehsil Council may, by a "Resolution", stating the grounds thereof, passed by a simple majority of its total membership, set aside a "Resolution" of the Union Council, if it considers the same to be against an interest of the people or public policy. Recall of election or depriving Naib Union Nazim of his office is not a routine function of the Union Council. It is a distinct and special function. A Nazim or Naib Union Nazim can enjoy his office as long as he enjoys the confidence of the majority of members of the Union Council. The moment Naib Union Nazim loses that confidence, a member of a Union Council can move a "Motion" seconded by another member in the Union Council for Recall election of Naib Union Nazim. Proceedings under Section 89-A of the Ordinance are different. In the said section a "Motion" to set aside the "Resolution" of a Union Council can be initiated by the Tehsil Municipal Administration and not by any member of the Union Council for a member of Tehsil Council. The reason is obvious, in the former case, the object is to empower members to remove their Naib Nazim if he has lost confidence of the majority, whereas, in the latter under Section 89-A, objective is that if a Union Council has taken a decision in form of a "Resolution" against the interest of the people or public policy that may be set aside on initiative of Tehsil Municipal Administration.
11. At this point, I may point out another thing.
Section 89-A deals with a "Resolution" finally passed by a Union Council under Section 92, there are two stages on "Motion" for Recall. The first stage is when "Motion" is moved and notices are issued to the .Members, Union Nazim summons a Union Session within three days if the Union Council is not already in Session. In the said Sessions members deliberate upon the "Motion and if they are satisfied . The matter is referred to the Chief Election Commissioner to appoint a Returning Officer for further proceedings, this would be a second stage. Approval of the above deliberations under sub-sections (2) and (3) to Section 92, does not require approval by a simple majority or by a 2/3 majority. At the second stage, desire of the members is obtained through a secret ballot on the "Motion" and if it is approved by 2/3 majority of the votes of its total membership, the Naib Nazim would cease to hold office forthwith. The Notification is issued by the Chief Election Commissioner regarding. Result of the approval of the "Motion". In the instant case, the parties never reached to the second stage as proceedings dated 24.3.2007 were set aside by the impugned Notification passed on 3.4.2007 by Town Municipal Officer on application of respondent No. 3, dated 27.3.2007. It may be again pointed out that proceedings under Section 89 can only be commenced on a "Motion" initiated by the Tehsil Municipal Administration. Thus, I have no doubt in my mind that proceedings of Union Cbuncil dated 24.3.2007 against which impugned Notification was passed on 3.4.2007 cannot be treated or dubbed as a "Resolution". It was only "Motion" and that too at first stage, as it never reached to a second stage contemplated under sub-section (4) of Section 92 of the Ordinance which may be equated with a "Resolution" envisaged under Section 89.
12. There is another reason to believe that Section 89-A has no nexus with Section 92. Under Section 92(4), a "Motion" for Recall can only be approved if it is passed by 2/3 majority of the votes of its total membership through a secret ballot, whereas "Resolution" under Section 89-A can be passed by a simple majority of its total membership.
Section 89-A does not require voting through a secret ballot. Even otherwise, how can a decision taken by 2/3 majority of the concerned house can be over-ruled by another house with a simple majority? Under sub-section (5) of Section 92, if a "Motion" fails, the proposer and seconder are penalized C.L.R. as they lose their seats in the Union Council. No such penalty or consequences are provided under Section 89-A. I will not go into the detailed reasons of the above difference. However, I shall only and that to save the House from the frivolous "Motion" of Recall, consequences are provided. So that, proposer and seconder must be sure and serious and other members also have confidence that proposer etc. Have something serious against the Naib Nazim instead of creating confusion and destabilization. On the other hand, purpose of Section 89-A seems to provide a check on the day to day working/functions of the Union Council and to ensure that the Union Council do not work against the interest of the people or public policy. For the above reasons. I hold that the T.M.A.
Has no authority under Section 89-A to upset or set.Aside proceedings taken under Section 92 of the Ordinance and Section 89-A has no nexus with Section 92 of the Ordinance.
13. The learned counsel for the respondent No. 3 submitted that Section 89-A of the Ordinance is to be interpreted in conjunction with other sections . Of the Ordinance. He referred to Section 89 sub- section (4) and contended that for consideration of "Motion" for Recall, Session of the Union Council requires to be presided by a member elected by the Union Council from amongst its members and not by the Nazim Union Council as it happened on 5.4.2007 in this case. According to him for consideration of "Motion" for Recall, proceedings were required to be taken under' sub-section (4) of Section 89, therefore, Section 89 was applicable. He further referred Sections 82 and 82-A. He also contended that Section 89-A provided an administrative control and check over the Union Council to provide check and balance system.
14. I do not agree with the learned counsel for respondent No. 3 that for "Motion" for Recall proceedings were to be taken under Section 89(4) of the Ordinance. Provisions of Section 92, sub- sections (1), (2) and (3) are expressly worded; I do not need to dilate upon any further.
Section 89(4) meets a situation where Union Nazim and Naib Nazim are not available or absent for any reason. I may remind to the learned counsel for respondent No. 3, that to consider the "Motion" at second stage under Section 92, proceedings are to be conducted by a Returning Officer nominated by the Chief Election Commissioner, sub-section (4) of Section 92 is very clear on this.
In any case, as noted above, in the instant case the matter never reached to the final stage. Of approval or disapproval of a "Motion" which was only deliberated upon by the members of the Union Council on 24.3.2007. Thus, the contention of .The learned counsel for respondent No. 3 is not accepted. Reference to Section 82 is totally irrelevant. It relates to an order or decision taken by a Union Nazim. Under Section 92 decisions are not taken by Union Nazim, "Motion" of Recall is approved or disapproved by 2/3 majority of the members of Union Council. For similar reasons, the contention of the learned counsel regarding reference to Section 92-A is also rejected.
15. The learned counsel representing respondents Nos. 1 and 2 submitted that it was incorrect to state that "Motion" was initiated by T.M.A. As contended by the learned counsel for the petitioner. The learned counsel. Further elaborated that when members of the Union Council approached with their grievance to the Nazim Union Council, he informed,the T.M.A., and thereafter, "Motion" was initiated by the T.M.A. Learned counsel further submitted that if Section 82 is read with Section 89-A it would become clear that Resolution was legal and competently passed. He also added that in any case the impugned "Resolution" was passed in the public interest. On other points, he adopted the arguments of learned counsel for respondent No. 3. I have already mentioned that it is on record that application dated 27.3.2007 was moved by respondent No. 3 to the T.M.A. Wherein request was made to set aside the proceedings of Union Council dated 24,3.2007, under Section 89-A of the Ordinance: To impugned Notification C.L.R. itself shows that T.M.A. Passed impugned order on respondent No. 3's application. Thus, I have no doubt in my Mind that impugned Notification is unlawful being inconsistent with the provisions of Section 89-A of the Ordinance, too. Under Section 89-A "Resolution" of Union Council can be set aside only on a "Motion" initiated by the, T.M.A. And not otherwise.
16. The present case is a case of sheer violence against the provisions of the Punjab Local Government Ordinance, 2001. It is very unfortunate that some people in this country commit illegalities in the name of law; likewise, some people take undemocratic decisions rather ridicule the democratic norms, in the name of democracy. I have no doubt in my mind that passage of the impugned Notification is one of such examples. People accept decision of electors if it is in their favour only. After all, there are some reasons why have we failed to achieve the ideal of democracy in this country?
17. Sections 45 and 24; Sections 63 and 70-A are corresponding sections to Sections 89-A and 92 of the Ordinance, therefore, interpretation of Sections 89-A and 92 inter se shall be applicable to the above sections also. It may also be emphasized that if the interpretations of learned counsel for respondent No. 3 were accepted, it would seriously upset the smooth and democratic functioning of all Councils provided under the Punjab Local Government Ordinance, 2001, i.e. District Council, Tehsil Council/Town Council and Union Council throughout the country.
18. Pursuant to discussion in the preceding paras and reasons, this writ petition is allowed.
Notification dated 3.4.2007 is set aside. The said Notification is also declared without lawful authority and of no legal effect. .