SYED ASGHAR HAIDER, J. --- Through this petition, the petitioner assails the order dated 28.092007 passed by respondent No. 2 whereby a recall motion against him, was carried.
2. The dispute pertains to Union Council No. 92, Jamke Cheema, Tehsil Daska, District Sialkot. A recall motion was moved by one Allah Rakha Kadri, and seconded by Inayat Masih, levelling certain allegations against . The Nazim concerned. Pursuant thereto, the Chief Election Commissioner, issued a Notification and appointed the Additional District Judge, Daska, to act as the Returning Officer and proceed with the recall motion.
3. The petitioner aggrieved of this order, alleged. Inter alia, deviation in procedural requirements as contained in Sections 85 and 89 of the Punjab Local Government. Ordinance. 2001 and, therefore.
Assailed this order by filing Writ Petition No. 7889 of 2007
4. After hearing the counsel for the parties at length this petition was allowed in the following manner.- "Resultantly, this petition is allowed the proceedings of the council dated 22.8.2007 are set aside.
The recall proceedings under Section 85 of the-Ordinance, against the petitioner would deemed to be pending, the Naib Nazim shall summon the session of Union Council No. 92, Jamke Cheema, Tehsil Daska, District Sialkut, on Monday, 10th of September, 2007. At 10 a.m., at the premises of the Union Council, where-after the parties to the /is and all concerned shall strictly adhere to the procedure ordained in Sections 85 and 89 of the Ordinance. The petitioner shall make available the premises of the Union Council for this purpose, without any hindrance or interference. A copy, of this order shall also be sent to the D.P.O. Concerned, who shall ensure that no law and order situation or un- toward incident takes place."
5. Pursuant thereto the parties were required to hold a meeting as directed. It was held and presided by Abdul Majeed Meer, General Councilor on the said date: Despite service the petitioner did not attend the proceedings, although he stood notified in this context by the order of this Court.
Thereafter the movers of the recall motion made out their grievance in detail and the motion was carried with 10 votes-in favour, 3 absent and none against.
6. As the motion was carried by' 2/3rd 'majority, therefore, a request was made under Section 84(4) of the Punjab Local Government Ordinance., 2001 to the Election Commission of Pakistan to depute a Returning Officer to conduct secret ballot as ordained by law. The Election Commission appointed, Mr.. Muhammad Zafar lqbal, Additional District Judge; as Returning Officer, who conducted the proceedings on 21.09.2007. But the exercise could not take place, as the Nazirn made a request that he was indisposed and hospitalized in Tehsil Headquarters Hospital, Daska, the proceedings therefore were adjourned to 28.09.2007. On this date again the house assembled as before, but the Nazim, again made a request for adjournment, pleading that he was indisposed The request, was declined by the Returning Officer, after giving reasons.
According to the result declared in the secret ballot the total number of voters was thirteen; ten members voted for the resolution while three abstained. Therefore, the motion was carried. The petitioner is aggrieved of this order and hence the present petition.
7. The learned counsel for - the petitioner contended that the direction passed by this Court in Writ Petition No. 7889 of 2007 was not adhered to by respondent No. 2, the manner and mode in which the vote count was made and the exercise conducted was also not in consonance with the direction contained in the stated petition. The requirement of Section 85(7) was not complied with as the petitioner was not granted right of audience as contained therein. To fortify his contention the learned counsel relied on "Khawaja Ahmed Hassan and others v. Government of Punjab" (2005 SCM R 186). He thereafter also contended that the allegations moved against the petitioner are without substance, there was absolutely no material to substantiate these allegations. The proceedings were conducted in a male fide manner, rather no proceedings were conducted at all and the entire record is fabricated. He also alleged harassment, political temptations, motivations, etc. He lastly stated that the petitioner has been condemned unheard, the proceedings are coram non-judice, therefore, they may be set aside.
8. I have heard learned counsel for the petitioner at length and perused the record.
9. The arguments made by the learned counsel today firstly related to the filing of the motion for recall and the reasons contained therein. He adverted to the background in this context and alleged harassm ent, political motivation etc. He specifically alleged that Allah Rakha and lnayat Masih, Councilors were not in attendance of meetings as ordained by law, therefore, the Nazim intended to take remedial action for their removal and, the present recall motion is a counterblast in this context. Before venturing further it is clarified that in the earlier Writ Petition No. 7889:2007 all these points were raised, argued and thereafter the petition was allowed only on the 'ground of non-adherence of procedural formalities as contained in Sections 85 and 89 of the Ordinance (ibid). Thereafter, these matters have substantially been in issue in former petition and cannot be now urged again. Reference "Pir Bakhsh v. Chairman' Allotment 'Committee and others" (PLD 1987 SC 145). Therefore, this petition to this extent is barred, as the principle of res judicata (Section 11 of C.P.C.) is also fully applicable to Constitutional petitions. Reference 'Abdul Mbjeed and others v.
Abdul Ghafoor Khan and others" (PLD 1982 SC 146)..
10. Now adverting to the present controversy, whereby the order dated 28.09.2007 has been challenged by the petitioner. While allowing Writ Petition No 7889 of 2007, a specific date, place and time was incorporated in the order and the parties and all concerned were directed to appear in the Union Council at the stated time. This order was in the knowledge of both the parties (including the petitioner). Despite that, the petitioner did not care to appear, therefore, the abjection that the petitioner was not served and was not in the knowledge of the proceedings held on 10.09.2007 is not tenable. Rather it amounts to disobedience of the order of this Court. As a clear direction to him to appear and address the house by this Court was disobeyed. Therefore, on this ground alone he is not entitled to any discretionary relief.
11. Any how the matter' does not end here. The proceedings, however, were held on 10.09.2007 as directed, the recall motion carried, a request was made to the Election Commission of Pakistan to appoint a Returning Officer to conduct secret ballot, a formal Notification No. F.3(3)12007 Elec. (1).
Dated 15.09.2007 was issued by the Federal -Commission of Pakistan. Pursuant thereto Mr. Zafar lqbal, Additional District and Sessions Judge, Daska was appointed as Returning Officer. He conducted the proceedings in the Union Council Office on 21.09.2007, but the petitioner did not appear in person and sought adjournment of the proceedings pleading that he was hospitalized in Tehsil Headqu arters Hospital, Daska. On his request the proceedings were adjourned .To 28.09:2007. On this date, Mr. Tariq Mehmood Janjua, Advocate, appeared on behalf of the petitioner and put an application, identical and similar to the previous one, seeking adjournment again, pleading ground to ailment and also stating that I.C.A. No. 230-2007 has been filed in this Court against the order dated 07.09.2007, which is pending adjudication and, therefore, the session be adjourned. The request was declined by the Returning Officer, for the sake of brevity, the detailed reasons for refusal of adjournment are not reproduced, but suffice it to say, it is clear, evident and explicit, that adjournment on ground of ailment was sought to delay and frustrate the proceedings only. The conduct, manner and mode adopted by the Nazim, in this context is deplorable and' unbecoming of an individual holding such a responsible position his request, therefore, was rightly declined by the Returning Officer. As far the request for adjournment on ground of pendency of I.C.A. Is concerned, the Returning Officer again is correct to hold that there was no injunctive order, therefore, he was bound to follow the direction passed by this Court in order dated 09.07.2007 made in Writ Petition No. 7889/2007, thus on this ground also the proceedings could not be adjourned.
12. Now adverting to the contents of the order which is under challenge. It is an admitted-position on record that the motion for recall was carried by a majority of ten votes to none. Therefore, the requirement of 2/3rd majority as ordained by 'Section 84(4) of the Ordinance was fulfilled. In these circumstances, it is clear that the petitioner had lost -confidence of the house, and therefore, had absolutely' no mandate or authority to continue as Nazim, against the will of the electorate, because will of the electorate rules supreme and cannot be frustrated. The perusal of the contents of the proceedings of the recount ballot reflect that proceedings were conducted by the Returning Officer on 21.09.2007 and 28.09.2007, it clearly emerges that the electoral college for vote against Nazim assembled thrice, in same number (10) against the Nazim, they clearly expressed their will in these circumstances the present petition is nothing but a ploy to further protract, prolong and perpetuate his tenure as Nazim, this cannot be permitted' and therefore, the petitioner is not entitled to grant of any relief on this account as well.
1'3. Finally adverting to the fact that whether the petitioner was provided, adequate opportunity to address the Union Council, in his defence, as contemplated by Section 85 of the Punjab Local Government Ordinance, 2001. Although the question has been raised in ground (viii) of the instant petition, but there is not a word stating any reason as to why he did not address the said Meeting, Under the principles of_ pleadings, the petitioner is bound to make detailed assertions in this respect and state reasons in this behalf, non adherence in this context, clearly reflects upon the conduct of the petitioner and establishes beyond doubt, that he did not attend the meeting of his own choice to plead this cause but to delay the matter made a passing reference in ground (viii) of petition "that he has been condemned unheard.. The right of hearing is qualified with attendance, and cannot be made an excuse to perpetuate an illegality and frustrate the will of the electorate, in case there was any restraint the petitioner was bound to disclose it in his pleadings.
Complete silence, in this respect clearly establishes, that there was no such threat, thus, the privilege granted to address and explain his position was abused to perpetuate his stay. Lastly, adequate opportunity was offered in this behalf and non-availing it, cannot be permitted to frustrate the proceedings.
14. The learned counsel for the petitioner relied heavily on "Khawaja Ahmad Hassan v. Government of Punjab and others" (2005 SCM R 186). The facts and narrations made in this precedent are entirely different and distinguishable on facts. Primarily the provisions of Rule 14(1)(2) of Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 and Section 63 of the Local Government Ordinance, 2001 were examined and found to be intra vires and not ultra vires of the Constitution of Islamic Republic of Pakistan, 1973. Further the moot point under discussion in this precedent was that could the Nazim be restrained by the Provincial Election Authority from performing his functions as Nazim till a recall motion against him was carried by majority, as ordained by law. The proposition urged in the present matter is entirely different. Here the recall motion was carried with thumping majority and no such restraint order was issued by the Election Authority. As far as question of mala fides is concerned, it was for the petitioner (Nazim) to prove that. He has miserably failed on this score as well, there is no material on record to this effect in the present petition, the earlier writ 'petition or even on record. From the perusal of record it clearly reflects that petitioner had no defence to offer qua the assertions made by the movers of the recall motion and, therefore, he chose to remain absent and silent. Thus on this ground also the petitioner has no case.
15. Resultantly this petition has no merits and is accordingly dismissed.