Akhtar Zaman Malghani, J.--Following relief, has been claimed in the instant Constitution petition: -- "It is accordingly respectfully prayed that this Hon'ble Court may be pleased to declare that the notifications/letters/orders dated 7-7-2001, 2-4-2007, 11-4-2007, 15-6-2007 & 22-8-2007 issued by respondents in disregard to Balochistan Local Government Ordinance and other prevailing laws available on the subject, are illegal/issued in excess of jurisdiction, consequently the same may be set-aside and the respondents may permanently be restrained not to disturb the territorial limits of Tehsil Council Kharan in violation of law with any other relief and cost of proceedings throughout with any other relief, in the interest of justice."
2. Briefly stated, facts of the case are that the Petitioner No, 1 and Petitioner No, 2 were elected as Nazim and Naib Nazim of Tehsil Council Kharan in the Local Government Election held in the year 2005. The Government of Balochistan (Revenue Department) in exercise of power conferred under Section-6 of the Land Revenue Act, 1967 created Tehsil Sar-e Kharan and Sub Tehsil Tohumulk vide Notification dated 02.04.2007. In pursuance to creation of new tehsil and sub tehsil, Government of Balochistan in exercise of power conferred under Section-7 of the Local Government Ordinance, 2001 declared Tehsil Sar-e-Kharan as Local Government Tehsil/TMA in District Kharan consisting of Union Council Jamak and Union Council Joda Kalat. The said Notifications were followed by another Notification dated 22.08.2007 purported to have been issued in exercise of powers conferred under Section 197 of the Balochistan Local Government Ordinance, 2001 declaring Petitioner Nos, 1 & 2 respectively Nazim and Tehsil Naib Nazim of newly created Tehsil Sar-e-Kharan instead of Nazim and Naib Nazim of Tehsil Kharan for which they were originally elected. In the same Notification office of Nazim and Naib Nazim of Tehsil Kharan and seats reserved for women, peasant, workers and minority of Tehsil Council Sar-e-Kharan were declared to be vacant. Another Notification was also issued on 25.08.2007 whereby District Co-ordination Officer, Kharan District appointed Akhtar Muhammad Baloch, Tehsil Municipal Officer/Principal Account Officer Tehsil Municipal Administration, Kharan as caretaker for post of Nazim Tehsil Council, Tehsil Municipal Administrator, Kharan with immediate effect. The petitioners being aggrieved by the above said Notifications have instituted instant petition.
3. We have heard the learned counsel for petitioners as well as learned counsel for respondents.
Learned Counsel for petitioners vehemently contended that Government of Balochistan or for that matter the official respondents have no legal authority to remove Petitioners No, 1 & 2 from the Office of Nazim and Naib Nazim of Kharan for which they were duly elected, after creation of new Tehsil and Sub Tehsil. He further contended that proposal of creation of new Tehsil and Sub Tehsil were rejected in the meeting of Tehsil Council held on 17.02.2007 but despite such rejection the Government illegally created new Tehsils which are liable to be set aside. According to him Section 197 of Local Government Ordinance, 2001 did not confer any power upon the Government to remove elected members of Local Government or to declare their seats vacant and all exercise carried out by the official respondents in the garb of said section was illegal and without jurisdiction. In support of his contentions learned counsel placed reliance on the judgment reported in PLD 2005 S.C. 797.
On the other hand learned Counsel for District Nazim who was impleaded in the case as Respondent No, 4 vehemently contended that appointment of care taker was made through Notification dated 25.08.2007 which powers were available under Section 12 of the Ordinance. He further contended that neither Section-11 was applicable to the present case nor any mala fide had been shown on the part of Government which has every power to create new tehsils. According to him judgment reported in PLD 2005 S.C. 797 was not applicable to the facts and circumstances of present case.
The learned A.G adopted arguments of learned counsel for Respondent No, 4.
4. We have carefully considered the contentions put forth by the learned counsel for parties. So far notification issued by the Government under Section 6 of Land Revenue Act, 1967 is concerned the same could not be called in question by invoking Constitutional jurisdiction unless mala fide is shown on the part of Government but the learned counsel failed to show any mala fide in this regard except agitating that the new Tehsils were created to deprive the petitioners from the seats of Nazim and Naib Nazim of Tehsil, Kharan, to which they were legally elected, which arguments are not tenable in view of dictum laid down in the judgment reported in PLD 2002 S.C. 797 holding that removal of elected representative after issuance of notification under Section 6 of Land Revenue Act, was a mere presumption not supported either by West Pakistan Land Revenue Act, 1967 or by provisions of Local Government Ordinance, 2001.
5. It may be noted that in the above referred case, Government of Sindh through a notification issued under Section 6 of the Land Revenue Act, 1967 carved out four new districts out of two existing districts, which notification was followed by four separate notifications issued by Government of Sindh in exercise of powers conferred under Section 186 of the said Local Government Ordinance, 2001, whereby; Nazims and Naib Nazims of the existing districts were removed. In the instant case, the petitioners were elected as Nazim and Naib Nazim respectively of Tehsil, Kharan, however, vide notification dated 2nd April, 2007 issued under Section 6 of the Land Revenue Act, 1967 new Tehsil, SAR-Kharan and Sub-Tehsil Tohumulk were created in District Kharan, which notification was followed by another notification dated 15th June, 2007 issued under Section 7 of the Local Ordinance, 2001, which reads as under: In partial modification of Local Government Department's Notification No, 4- DEL(CR)/LG/2000/1358-1449 dated 07.07.2001 and No, 1-83/2000(Delt:)/BLCEA/1007-25 dated 8th March, 2001, the Government of Balochistan in exercise of powers conferred under Section 7 of the Balochistan Local Government Ordinance, 2001, is pleased to declare Tehsil Sar-Kharan as a Local Government Tehsil/TMA in District Kharan with the following areas: 1) Union Council Jamak 2) Union Council Joda Kalat".
Subsequently; another notification was issued on 22nd August, 2007 declaring the petitioners to be Nazim and Naib Nazim of newly created Tehsil Sar-Kharan, whereas; seats of Nazim and Naib Nazim Tehsil, Kharan and seats reserved for women, peasant/worker and minority of Tehsil Sar- Kharan were declared as vacant. Section 7 does empower Government to declare tehsils and districts notified under the Land Revenue Act, 1967; to be tehsils and districts under the Ordinance, 2001, but it does not empower it to remove the elected Nazim and Naib Nazim in consequence thereof. In our considered view powers conferred on Government by virtue of Section 7 are subject to provisions of Section 11, which relates to alteration of local areas of unions and tehsils. Sub- section (2) of the Section 11 empowers the Government to notify change in the boundaries of the unions. Tehsils or towns but subject to previous publication and such change in the boundaries would come into force on the announcement of next Local Government elections and not before that. Similarly; for removal of Nazim and Naib Nazim a special procedure has been provided in the Local Government Ordinance, 2001, therefore; the Government has no authority to dislodge the petitioners from their offices under the garb of Section 197, which has nothing to do with removal of Nazim, Naib Nazim or elected members on the reserved seats. It is well settled that any action should be taken as provided for; else it should not be taken at all. The Hon'ble Apex Court in the D judgment reported in PLD 2005 S.0 797 while dealing with the power of Government to remove Nazim or Naib Nazim held as under: The Nazims and Naib Nazims are elected under the provisions of Sindh Local Government Ordinance, 2001. The procedure for their removal is also provided in the same Ordinance under Sections 23 and 24. Only two procedures are available, known as external recall and internal recall.
Under external recall a District Nazim can be removed by the Chief Executive of a Province who shall move a motion in the Provincial Assembly stating grounds for the recall. Such grounds are already mentioned to the effect, firstly, that the continuing in office of a Zila Nazim is against the public policy; secondly, it is against the interest of the people and thirdly, he is guilty of misconduct.
Such motion is to be approved through a resolution passed by a simple majority in the Provincial Assembly. The second procedure is of internal recall described under Section 24 of the Ordinance to the effect that if the conditions given therein are fulfilled any member of District Council secondly by another member may give notice to move a motion through the Naib Zila Nazim for recall of Zila Nazim. In other words, it is no-confidence motion the detailed procedure whereof is provided in the section itself. There is no other way of removing an elected representative".
For the foregoing reasons, we are inclined to partly allow this petition and declare notifications dated 22nd August, 2007 and 2Cth August, 2007; to be void, illegal and without lawful authority.
Further declaring that the petitioners would continue to hold their respective offices till the next Local Government elections and notifications issued under the Local Government Ordinance, 2001 altering/changing the boundaries of Local Government Tehsil, Kharan would come into force on announcement of next Local Government elections and not before that.
The petition is disposed of accordingly.