SYED SHABBAR RAZA RIZVI, J. --- The petitioner has called in question "recall" proceedings against him on the ground that the proceedings were conducted disregarding the provisions of Section 85 of the. Punjab Local Government Ordinance, 2001.
2. Briefly, the 'recall motion' was moved. On 14.09.2006. The House of the Union Council No. 9, Jaura Jalapur, District Gujrat, was summoned .On 18.09.2006. Rana Zahid Iqbal, Civil Judge was appointed as Presiding Officer. On 29.09.2006, proceedings were conducted and as a result of the same, the petitioner was unseated.
3. According to the learned counsel for the petitioner, sub-sections (2) and (7) of Section 85 of the Punjab Local Government Ordinance, 2001 were not followed in the above proceedings. The precise grievance.Of the learned counsel for the petitioner is that notice of motion was received on 14.09.2006, but the session of the Union Council was held on 18.09.2006 which was to be held within three days as required under sub-section (2) of Section 85 of the Ordinance. Likewsie, he submitted that sub-section (7) of Section 85 of the Ordinance requires that the petitioner should have been given right of audience/defence through an address to the House of the Union Council. In this regard, the learned counsel referred to Muhammad Ramzan v. Government of the Punjab through Secretary, Local Government and Rural Development Department, Lahore and others (2005 CLC 1069).
4. I may point out, herein, that grievance in the said judgment of the petitioner was, lack of notice and not providing a right of address. Whereupon, counsel for respondents offered that the impugned resolution may be annulled subject to keeping 'recall motion' alive which may be directed to put to the House again where the petitioner would have a right to defend the same. The offer was accepted by the petitioner, hence, the case was remanded. Interpretation of sub-section
(7) of Section 85 of the Ordinance or sub-section (7) of Section 92 of the Ordinance was not done in the above case. In the present case, there is no such agreement between the parties. Both have their on interpretations of sub-sections (2) and (7) of Section 85 of the Ordinance.
5. Before I decide the same, I would like to take down the views of the learned counsel for the respondents.
6. According to the learned counsel for respondent No. 8, he has certain preliminary objections. For example, the mover and seconder of the 'motion' were not made party, therefore, the petition is not maintainable. Secondly, the petitioner failed to avail alternate remedy provided under the law.
Thirdly, the Election Commission has issued Notification of removal of the office of the petitioner which has not been challenged.
7. After considering the preliminary objection, I ignore the same in justice to address the real point raised by the respective learned counsel. According to the learned counsel for respondent No. 8, Section 85 of the Ordinance can be divided into two parts. 1st part consists of subsections (1), (2) and (3) whereas second part consists of sub-sections (4) to (8) of Section 85. According to the learned counsel the word "summon" is used in sub-section (2) and it means to call a session within three days it does not mean that session or meeting of the Council must be held within three days.
The learned counsel also submits that under sub-section (7) the Nazim, Union Council has been given right to address to the Union Council in his defence when "motion is under consideration in the House of the Union Council and it is also evident from the language of sub-section (2) and (3).
According to him, sub-section (7) cannot be read into sub-section (4) Under sub-section (4) it is the secret balloting which takes place after procedure under Sections 2 and 3 is over. In this regard the learned counsel for the petitioner referred to PLD 1991 SC 1029, PLD 1990 Lahore 9, 2004 SCMR 1903, 2005 YLR 99 and 2004 YLR 1856.
8. I have considered the provisions of Section 85 as well as provisions of 92 of the Punjab Local Government Ordinance, 2001, in conjunction with provisions of Article 47 of the Constitution of Pakistan. In my view, "summon" means to call or order to appear or in terms of sub-section (2) "summon" means to summon a meeting of Union Council within three days. It can also be described to issue a notice of a session of Union Council within three days, but the actual meeting so summoned may not necessarily be held within three days on receipt of notice referred to in subsection (1). In clause (4) of Article 47 of the Constitution of Pakistan, the Speaker of the National Assembly is required, within three days of the receipt of a notice, to cause a copy of the notice to be transmitted to the President, then under clause (5) of the same Article, the Speaker is required to summon the two Houses to meet in a joint sitting not earlier than 7 days and not late than 14 days after the receipt of the notice by him. Therefore, the requirement of sub-sections (2) and (3) of Section 85 of the Ordinance is to take decision and to convey the same to the members within three days on which date House will sit or hold meeting to .Consider the motion. This finding gets support from the language of subsection (3) of Section 85 of the Ordinance which reads that where the Union Council is already in session there will be no necessity for Naib Nazim to summon a session of the Union Council within three days. But if the Union Council is not in session, the Naib Nazim shall summon the session within three days.
9. Likewise, sub-section (7) or the right of Nazim Union Council to address the Union Council in his defence relates to provisions of sub-section (3) i.e. Deliberations in the Union Council. Sub-section
(7) does not relate to provisions of sub-section (4) of Section 85 of the Ordinance. The provisions of sub-section (4) are regarding approval or non-approval by 2/3rd majority of the votes of the total membership of the Union Council through a secret ballot. At the time of secret balloting right of audience/address is not provided. It is provided, at the time of deliberations mentioned in sub- section (3) of Section 85. This finding gathers support from collective reading of clauses (6) and (7) of Article 47 of the Constitution.
10. In view of the above discussion and reasons, I find no force in the present writ petition, therefore, it is accordingly dismissed.