' SH. HAKIM ALI, J.--- To assail the validity of proceedings of recall motion having been conducted against writ petitioner, the instant writ petition has been filed by him. Learned counsel for the petitioner has explained the facts, which have compelled the writ petition to file the instant writ petition, which are as under:--
(I) Malik Zamurrad Hussain, petitioner was an elected Nazim of Union Council No,17, Bahawalpur City while respondent No,2 Haji Abdul Zaheer, was Naib Nazim of the same Union Council. To remove the writ petitioner from that seat of Nazim, respondents Nos.3 and 4, namely, Ch. Tahir Bashir and Ch. Muhammad Naseem filed an application with Haji Abdul Zaheer, Naib Nazim (respondent No,2) on 26-1-2007 under section 85(2) of the Punjab Local Government Ordinance, 2001 (hereinafter referred to as the Ordinance) in the form of recall motion against Union Nazim (writ petitioner).
(2) According to learned counsel, the proceedings allegedly initiated upon that recall motion are fictitious, collusive, illegal and unlawful due to the following reasons:--
(i) As per learned counsel for the writ petitioner, under section 85(2) of the Ordinance, session of the Union Council was to be summoned within three days from the filing of the recall motion but the session was shown to have been summoned on 31-1-2007. Therefore, provision of section 85(2) of the Ordinance was violated.
(ii) All the proceedings with regard to summoning of the session of Union. Council on 31-1-2007 were based on forgery, because Iqbal Ahmad, Secretary Union Council was transferred on 17-1- 2007 and was relieved from that post on 23-1-2007 while the proceedings of 31-1-2007 were shown to be in the handwriting of aforesaid Iqbal Ahmad, Secretary, Union Council. As per learned counsel, the transfer of Secretary, Union Council was cancelled on 22-1-2007 while the letter to writ petitioners, the Nazim was issued on 14-2-2007 by Assistant Director Local Government with direction to hand over the record of the Union Council to Iqbal Ahmad, Secretary.
(iii) By relying upon two affidavits of Mst. Tasneem Zaman Chaudhry and Mst. Shamim Bibi, Councillors, it is submitted by the learned counsel that no meeting on 31-1-2007 of the Union Council concerned was ever summoned and held. All was paper work, fake and fictitious affairs..
(iv) Upon the petition of recall motion, the petitioner was never issued any notice. The alleged notice/summons was never served upon the writ petitioner to grant him an opportunity to appear and defend the case of removal before the session of the Union Council. For that purpose, no proceedings upon the record of Union Council were ever conducted. The proceedings conducted upon fresh newly purchased record were illegal, which were in fact fabricated matter.
(v) As no summons/notice was ever issued to the writ petitioner, so he was not allowed to appear in the alleged meeting of 31-1-2007 and no opportunity of hearing was granted to the writ petitioner. All the record of the meeting of 31-1-2007 was concocted. Therefore, the recall motion proceedings shown to have been conducted on 31-1-2007 may be declared illegal and unlawful.
2. Learned counsel appearing on behalf of respondents Nos.2 to 4 submits that:--
(a) It is correct that the recall motion petition was received on 26-1-2007 but on 28-1-2007 it was Sunday while on 29th and 30th of January, 2007, these were gazetted holidays, due to 9th and 10th of Muharram, 1428 A.H. Therefore, proceedings of session of Union Council were conducted on 31-1- 2007. Due to above facts, there was no violation of the provision of section 85(2) of the Ordinance.
(b) The notice was issued to the writ petitioner as well as to other members of the Union Council for the session of Union Council, to be held on 31-1-2007, but the writ petitioner had refused to accept service of the notice and to append his signatures. There is a report to this effect of one Farooq Ahmad, Naib Qasid upon the process serving sheet also.
(c) As regards transfer of Muhammad Iqbal, Secretary, Union Council, learned counsel submits that his transfer was cancelled on 22-1-2007. Order dated 22-1-2007 was communicated to the writ petitioner about the cancellation of transfer of Iqbal Ahmad, Secretary Union Council No,17.
Therefore, the Secretary was there in the Union Council and he had, therefore, validly conducted the proceedings of the Union Council.
(d) As per learned counsel, Iqbal Ahmad, Secretary Union Council whose transfer order was cancelled had submitted a report to Naib Nazim on 26-1-2007, wherein he had mentioned that his order of transfer was cancelled on 22-1-2007 but Nazim had relieved him on 23-1-2007. On 24-1- 2007, he had again reported to the Nazim but key of the record room was not delivered to him by the aforesaid Nazim. As Nazim was not prepared to deliver the key and the record, therefore, report was being submitted. This report is dated 26-1-2007. On the same day; Naib Nazim had also allowed aforesaid Secretary Union Council to purchase and prepare new register and record. On 27-1-2007, it was reported by the aforesaid Secretary that new record had been prepared by him and the notice for summoning of emergent meeting under section 85(2) of the Ordinance was being submitted for signatures. There is also an order of Naib Nazim dated 27-1-2007, wherein it was shown that notice for emergent meeting was signed by Naib Nazim and was delivered to Secretary Union Council, while Secretary had bound down Farooq Ahmad, Naib Qasid for that purpose. This order, dated 27-1-2007 is also on file. Learned counsel has also referred to an application of Iqbal Ahmad, Secretary, which was submitted by him to Assistant Director Local Government that Nazim Union Council was not delivering the key of the room wherein the record was lying. Receipt of this application from the office of ADLG & RD has been shown of 25-1-2007.
Therefore, there was no illegality committed by Naib Nazim or the officials of Union Council concerned.
(e) It is contended by the learned counsel that this writ petition is not maintainable as earlier to it Writ Petition No,214 of 2007/BWP was filed by the writ petitioner in which the same subject-matter was under challenge, i,e, the order dated 31-1-2007, while in the instant writ petition, certificate has been given that this is the first petition on the same subject-matter.
(f) It is also submitted by the learned counsel that still no recall motion was carried out against the writ petitioner but the writ petitioner has entered in his writ petition this averment repeatedly that motion was carried against him. In fact the motion has still to be carried through against the petitioner, when an appointee of Chief Election Commissioner is to conduct the, proceedings of secret balloting and in Consequence the writ petitioner is to be removed from the seat of Nazim.
3. In response to the legal objection, learned counsel for the writ petitioner has replied that on 31-1- 2007, an order was passed by Secretary Community Centre against Zamurrad Hussain, the writ petitioner that recall motion having been completed, had been sent to the Chief Election Commissioner, and that till the secret ballot was not conducted by the appointee/nominee of Chief Election Commissioner, Nazim would remain suspended. Against that order, Writ petition No,214 of 2007/BWP was filed by writ petitioner as that order had become known to the writ petitioner. The instant writ petition was filed when petitioner came across the fake proceedings conducted and prepared upon recall motion by Naib Nazim. In the present writ petition, in para. No,4, all these details were noted and no misrepresentation or concealment of any fact was committed in the present writ petition. Copy of Writ Petition No,214 of 2007/BWP was also annexed with the instant writ petition.
4. Arguments of the learned counsel heard and record perused. In consequence of consideration and analysis of the facts and the record, the concluded findings and judgment/order with reasons are as follows:--
(i) Before adverting to the factual aspect of the case, legal objections raised by the learned counsel for respondents Nos.2 to 4 are being taken up first:--
(a) As per learned counsel for respondents, the instant writ petition is liable to be dismissed as Writ Petition No,214 of 2007/BWP was filed by the same writ petitioner with regard to the same subject- matter, which was in dispute in Writ Petition No,214 of 2007/BWP. It is an admitted fact that in Writ Petition No,214 of 2007/BWP, order, dated 31-1-2007 was challenged, by which Naib Nazim had suspended the Nazim until secret ballot was to be performed but, in the instant writ petition, proceedings for recall motion have been challenged. -It is pertinent to point out that Writ Petition No,214 of 2007/BWP was disposed of as learned counsel for respondents had made a statement that order of .Suspension of Nazim was illegal and unlawful, therefore, it was withdrawn by Naib Nazim himself. Upon this statement, Writ Petition No,214 of 2007/BWP was disposed of as having borne fruit. Due to withdrawal of suspension order dated 31-1-2007 by. Naib Nazim himself and the statement of learned Advocate in this court, it becomes evident that both the parties, of the instant and previous writ petition had treated that impugned order relating to suspension of Nazim only, not more than that and not less than that. Accordingly, from this fact also, it is proved that the subject-matter in that writ was different to the present one. In that writ, order of suspension, while in the instant writ the alleged fake proceedings upon recall motion and summoning of session of Union Council are being challenged. Therefore, the previous writ was not a bar to 'the present writ.
(b) Another legal objection raised by the learned counsel is with regard to the maintainability of this writ petition. As per learned counsel, in the instant writ petition, it has been entered at many places that recall motion was carried out against the petitioner although no motion was in fact carried out against the petitioner. Explaining it, learned counsel submits that for conduct of secret balloting still the Honourable Chief Election Commissioner has to get the proceedings conducted upon the recall motion, moved against the writ petitioner. Unless and until, the Union Council in its meeting casts two-third votes against the writ petitioner through the above noted procedure, the writ is not entertainable. The reply to this argument is found in the prayer of the writ, in which the writ petitioner has challenged the proceedings on recall motion, allegedly conducted on 31-1-2007 and has sought declaration that these proceedings were collusive, fictitious, ex parte, illegal and without lawful authority, in which resolution was passed against the writ petitioner by the alleged session of Union Council for making request to Chief Election Commissioner for conduct of secret balloting. The holding of session and the resolution passed in consequence of that is being disputed in this writ petition. To my mind, this passing of resolution against the petitioner can be competently impugned on the basis of the following paras. The validity of proceedings initiated on the basis of application of respondents Nos.3 and 4 and conducted by respondent No,2, Naib Nazim are in fact being challenged in this writ petition by pleading that these proceedings were collusive, fictitious, ex parte, illegal and unlawful.
(c) To understand the controversy and to decide the case in a just manner, reproduction of section 85 of the Ordinance is necessary, which is as follows:-- "85: [Recall] of Union Nazim:--- (1) If in the opinion of a member of Union Council there is reason to believe that the Union Nazim is acting against the public policy or the interest of the people or on the ground of inaction or neglects to serve the needs of the people, he may, second by another member of the Council, give a notice to move a motion in the Union Council for recall of Union Nazim.
(2) On receipt of notice referred to in subsection (1), the Naib Union Nazim shall summon a session of Union Council within three days if the Union Council is not already in session.
(3) Where the Union Council is already in session, the motion referred to in subsection (1) shall be taken up for deliberations on the next day from its receipts in the Union Council.
(4) **[Where the motion referred to in -subsection (1) is approved by two-third majority of the votes of the total membership of the Union Council to be conducted by the Chief Election Commissioner, through a secret ballot, the Union Nazim shall cease to hold office forthwith and the notification shall be issued in this behalf by the Chief Election Commissioner
(5) ** Substituted by Act (X of 2005).
(6) Where the motion fails in the Union council, the proposer and seconder of such motion shall lose their seats as members of the Union Council.
(7) *Omitted vide PLG Amendment Act (X of 2005),
(8) The Union Nazim shall have the right to *[address the Union Council] in his defence. *Substituted by Amendment Act (X of 2005).
(9) No motion for recall of Union Nazim shall be moved during the first six months of assumption of office of Union Nazim nor shall such motion be repeated before the expiry of one year from the rejection of previous motion. *[Provided that no motion for recall of Union Nazim shall be made before 31st December, 2002]. *Added by Third Amendment Ordinance (II of 2001)."
(d) Another relevant provision is Rule 12 containing in Chapter VIII (Internal Recall of Union Nazim) of the Punjab Local Government (Recall Motions Against Nazim and Naib Nazim) Rules, 2003. Sub- rules (5) and (6) of this Rule are most important, which are as follows:-- "12 Motion for inter recall of Union Nazim.--- (5) The motion shall be taken up for deliberation and voting through a secret ballot in the session of Union Council.
(6) The result of recall motion along, with a copy of the record of proceedings of the session, shall immediately be sent to the Election Authority by the Naib Union Nazim or, the Presiding Officer appointed, under sub-rule (4) as the case may be."
' From the examination of above noted section and Rule 12, two stages have been found for ousting a Union Nazim. First step is the summoning of session of Union Council within three days from the receipt of application for recall motion, wherein deliberations upon that recall motion have to be made by the session of that Union Council. After the deliberations, the result of it in the shape of resolution with regard to recall motion, if positive i,e, passed with simple majority of members of Union Council, it has to be forwarded and conveyed with copy of the record to the Election Authority, with prayer of conduct of secret balloting, upon which the Honourable Chief Election Commissioner has to arrange and manage the session of the Union Council for secret ballot voting upon the recall motion.
' The secret ballot voting is the second steps wherein that session of Union Council is to decide by two-third majority of members, as to .Whether to remove the Union Nazim or not? In case of failure at this step, consequences provided are to follow also. In the present writ petition, the validity of first step has been challenged. Therefore, the instant writ petition is competent.
(ii) Now coming to factual aspect of the case, it is observed that to determine the validity of the first step, we have to examine the record and plea raised by both the learned counsel. It is an admitted fact that the writ petitioner was not present at the time of meeting/session convened of the Union Council upon the recall motion of respondents Nos.3 and 4. According to the learned counsel, petitioner was not served with any notice and no session was convened on 31-1-2007 while per learned counsel for the respondents, writ petitioner had refused to accept notice. Petitioner's learned counsel has brought on record two affidavits of two lady councillors, namely, Mst. Tasneem Zaman Chaudhry and Mst. Shamim Bibi in which it has been shown that no notice was issued and meeting was never convened and that it was forged, fictitious and fake affair. In these circumstances, when two members of the Union Council have sworn affidavits, service of writ petitioner was to be proved through foolproof method. The service report shown upon a paper from a person, namely, Farooq Ahmad was that after reading notice, writ petitioner had refused to sign, cannot be accepted because counter-affidavit of Farooq Ahmad or the person before whom this refusal had taken place was not placed on the record. Merely upon this report of Farooq Ahmad. Naib Qasid, it cannot be held that the writ petitioner was served. Naib Nazim had to adopt such method from where it could be believed that writ petitioner was served but had not appeared in the aforementioned meeting to be held on 31-1-2007. The method of service nowadays has changed and improved. More modern techniques and facilities are available to serve a person.
The writ petitioner could be served through affixation process, if he had refused to accept service.
There was also method of substituted service, service by post. U.M.S., Registered A.D. Letter, telegram, courier service, television, radio drum beat and many other methods of service were there for the service of the writ petitioner but no such method was adopted. Therefore, I cannot believe that the report was true and the writ petitioner was served with notice with regard to the holding of Union Council session on 31-1-2007. Therefore, proceedings *conducted on 31-1-2007, are declared to be ex parte and without grant of opportunity of hearing to the writ petitioner.
(iii) Question has arisen in my mind as to whether the writ petitioner was entitled to the notice and to participate in the session of Union Council to be conducted upon the recall motion. After pondering over this proposition. I consider it essential. According to subsection (7) of section 85 of the Ordinance. Union Nazim has been granted right to address Union Council in his defence, so this right has to be read as a right granted by the statute at two stages, one at the time, when upon the recall motion, first session of Union Council is to be held by the Naib Union Nazim, because that is the first step from where the proceedings against the interest of Nazim are going to commence, and in the aforementioned session of Union Council. An adverse order has to be passed against Union Nazim, so as to determine as to whether that recall motion be forwarded for conduct of secret ballot voting through Honourable Chief Election Commissioner or not? It is, therefore, that subsection (7) of section 85 of the Ordinance has granted right to Union Nazim to address the Union Council in his defence. At the aforesaid stage, recall motion can be dropped if the explanation in the defence of Union Nazim is found to be correct, cogent and plausible and is accepted by the majority of the members of the Union. Council during that session. May refer to sub-rule (5) of Rule 12 of Chapter VIII (Internal Recall of Union Nazim) of the Punjab Local Government (Recall Motions Against Nazim and Naib Nazim) Rules, 2003, referred to and reproduced above. In that sub-rule it is clear that recall motion shall be taken up for deliberations and after deliberations voting has to be conducted through secret ballot in the session of Union Council. Thereafter the result of that session upon recall motion along with copy of record of proceedings of the session is to be sent to the Election Authority. In other words, if recall motion is approved by this session of the Union Council, then the Honourable Chief Election Commissioner has to be requested for conduct of secret ballot upon the recall motion. According to subsection
(4) of section 85 of the Ordinance, this is the second session which is to be got conducted by the Honourable Chief Election Commissioner through a secret ballot and in that session, two-third majority is necessary for removal of Union Nazim of Union Council. But in the first session according to subsection (3) of section 89 of the Ordinance, a decision to forward the recall motion to. The Honourable Chief Election Commissioner is to be passed upon a simple majority of total membership of the Union Council.
5. The result of the above discussion and conclusion is that the writ petitioner has not been served in accordance with law before holding of session of 31-1-2007 of the Union Council concerned. So, he has been deprived of valuable right of addressing the session to permit him to produce his defence in that session. Therefore, the proceedings at the first step of first session of Union Council, passing resolution to request for appointment of a representative of the Honourable Chief Election Commissioner for conduct of voting through secret ballot, upon recall motion are declared illegal and unlawful, consequently, are set aside. -6. Nevertheless, the respondents Nos.3 and 4 if still are insisting upon their recall motion to be proceeded with, in that event, Naib Nazim, Union Council No,17 shall be at liberty to proceed in accordance with law, as observed above. This judgment/ order shall not be a bar in that case for respondent No,2 to convene a fresh session upon recall motion of respondents Nos.3 and 4 as observed above. With these observations/directions, the writ petition is disposed of.