' MUHAMMAD ATHAR SAEED, J.---This constitutional petition has been filed by the Nazim UC-1 Kandhkot impugning the proceedings initiated for his recall vide impugned notice, dated 2nd June, 2007 on the basis' of recall motion moved by General Councillors Abida Perveen and Aisha Khatoon.
2. Brief facts of the case are that the petitioner was elected Nazim of Union Council Kandhkot, District Kashmore after contesting for the said post in the year 2005 and since then he has been serving on the said post. On 24-5-2007 two General Councillors Abida Perveen and Aisha. Khatoon vide their undated letter moved a motion of recall of Nazim as they felt the Union Nazim had failed to work in the interest of the people and' had neglected in the discharge of his responsibilities to serve the needs of the people of the Union Council and got it received in the office of Naib Nazim on the same date. The application was purportedly moved under section 85(1) of the Sindh Local Government Ordinance 2001. The Naib Nazim who has been arraigned in the petition as Respondent No,4 issued a notice for meeting of the UC-1 on 25-5-2007 and in this meeting nine Councillors attended and according to the minutes of the meeting a motion of no confidence was presented against the petitioner, which was approved unanimously. On 2-6-2007 the respondent No,4 held meeting with Returning Officer. Civil Judge-1, Kandhkot and fixed a date for secret balloting on 5-6-2007 and issued notices to all the Councillors in this regard.
3. We have heard Mr. Ishrat Alvi Advocate for the petitioner. Mr. M. Sarwar Khan A.A.-G. For respondents Nos.1, 2 and 3 and Mr. Shakeel Ahmed Advocate for the Respondent No,4.
4. The main contention of the learned counsel for the petitioner is that the provisions of section 85 of Sindh Local Government Ordinance, 2001 were not complied with and he was not served with the notice of the meeting held to consider the recall of Nazim motion. He further pointed out that petitioner had a right to address the council in his defence under subsection (1) of the section 85 of the Sindh Local Government Ordinance, 2001, but such opportunity was not provided and therefore, the principle of natural justice had been violated. He further submitted that under subsection (2) of section 85 of Sindh Local Government Ordinance 2001, the notice of the meeting was to be issued by the Naib Nazim but notice was issued by the Secretary of the Union Council and therefore subsection (2) was also violated. The learned counsel further submitted that the petitioner has not violated any of the provisions of the Sindh Local Government Ordinance, 2001 and no objection had been raised in respect of the petitioner's performance in any of the session of the Union Council and therefore, the action under section 85 of the Sindh Local Government Ordinance has been initiated with mala fide intentions and with ulterior motive.
5. In respect of his contention the learned 'Council relied on the following cases:
(1) S.L.G.O 2001, (2) 2004 CLC Page 707, (3) PLD 2004 SC page 694, (4) PLD 2005 Kar. Page 512, (5)
PLD 1970 SC Page 185, (6) PLD 1970 SC page 514 and (7) 2005 YLR page 2549.
6. The learned counsel for the Respondent No,4 rebutting the arguments of the learned counsel for the petitioner, submitted that all formalities required under section 85 (1) of the Sindh Local Government Ordinance were followed in letter and spirit and at no stage any of the provisions of section 85 of the Sindh Local Government Ordinance were violated. He submitted that the petitioner had not fulfilled his assignment and in the opinion of two General members there were reasons to believe that the Union Nazim was not working in accordance with the public policy and interest of the people and had neglected to serve the needs of the people therefore, two General Councillors had given a notice to move a motion in the Union Council for recall of Union Nazim and one this notice was received, the Naib Union Nazim respondent No,4 had in accordance with the provisions of subsection (2) of section 85 of Sindh Local Government Ordinance, summoned a session of the Union Council as provided and the motion moved by the two members was taken up for deliberations. He further stated that the Naib Nazim respondent No,4 had made efforts to get notice of the meeting served on the petitioner/Nazim but the Nazim had avoided to receive the notice and in this connection he relied on the report of the baliff Qamer-ud-Din of the 1-Civil Court Kandhkot who had reported that on 4-6-2007 at about 11-15 a.m. He along with Secretary Union Council No,1 had tried to serve the notice on the Nazim but father of the Nazim namely, Adab Hussain Gulato who refused to receive the notice on behalf of the son and told them return at 12-30 a.m.
7. The learned counsel for the respondent No,4 also challenged to maintainability of the petition and submitted that this Court in its constitutional jurisdiction cannot adjudicate upon disputed questions of fact. In this connection he relied on the following judgments:
(1) SLGO 2001, (2) SLG (Election Authority Rules 2004, (3) 1970 PLD (Karachi) page 730, (4)1969 SCMR page 127, (5) PLD 1967 (Lahore) page 1040, (6) PLD 1962 (Lahore) page 217, (7) PLD 1983 (Lahore) page 83, (8) SCMR 1982 page 775, (9) 1993 SCMR page 618, (10) 2004 YLR (Lahore) page 1856, (11)
May 2007 CLC (Karachi) page 844 and (12)1989 CLC (Lahore) page 2163.,
8. The learned counsel and the learned A.A.-G. Also submitted that from the minutes of the meeting, dated 25-5-2007 it is apparent that the Nazim/petitioner has lost the confidence of the members of the Union Council inasmu ch as nine out of 13 members supported the no confidence motion against the Nazim and therefore, he was not entitled to hold the post of Nazim.
9. We have examined the case in the light of the arguments of the learned counsel and perused the record of the case including the notice for recall motion of Nazim filed by two General Councillors, the notices issued by the respondent No,4 and other documents.
10. Since purportedly the proceedings for recall of Nazim have been initiated under section 85 of Sindh Local Government Ordinance, 2001, it will be relevant to reproduce this section which reads as under:
85. [Recall] of Union Nazim (1) if in the opinion on a member of Union Council, there is a reason to believe that the Union Nazim is acting against the public policy or the interest of the people or on the ground of in action or neglect to serve the needs of the people, he may, seconded 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 with 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 deliberation on the next day from its receipt in the Union Council.
[(4) Where the motion referred to in subsection (1) is approved by two-third majority of the board of the total membership of the Union Council, through a secret ballot to be conducted by the Election Commission, the Union Nazim shall cease to hold office forthwith and the notification shall be issued in this behalf by the Chief-Election Commissioner].
(5) Where the motion fails in the Union Council, the proposer and seconder of such motion shall lose their seats member of the Union Council.
[(6) ................................................................
(7) The Union Nazim shall have the right to [address the Union Council] in his defence.
(8) No motion for recall of Union Nazim shall be moved during the first six monthes 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.
11. Apparently, the notice of two General Councillors has been sent under provisions of subsection
(1) of section 85 of the Sindh Local Government Ordinance, 2001.
12. We therefore thought it necessary to examine this notice on the touchstone of the provisions of subsection (1) of section 85 of Sindh Local Government Ordinance 2001. It would also be helpful to reproduce this notice which reads as under:--- ' To, ' The Union Naib Nazim, Union Council Kandhkot-I, District Kashmore.
' Subject: RECALL OF UNION NAZIM ' "We the undersigned Councillors of Union Council Kandhkot-I District Kashmore feel that Union Nazim.
' Mr. Sadique Hussain Golato has failed to work in the interest of people has neglected in the discharge of his responsibilities to serve the needs of people of said Union Council.
' Therefore we the undersigned Councillors feel that Union Council Nazim be removed through a vote of no confidence through served baliff as prescribed under the provisions of Sindh Local Government Ordinance, 2001.
' As such you are requested to admit this application for further necessary action as provided in the law."
(Sd.)
1. General Councillor Abida Perveen N.I.C.No,43103-1348828-8 (Sd.)
2. Labour Councilor Aisha Khatoon. N. I. C. No,43503-0568267-6.
13. From a perusal of the above notice it is seen that the two General Councillors have expressed their feelings that the petitioner/Nazim be removed through the vote of no confidence through secret balloting and nowhere have expressed their intention of moving a motion in the Union Council for recall of Union Nazim/the petitioner. It is also seen that the two General Councillors have also expressed their feelings that Nazim/petitioner has failed to work in the interest of the people and has neglected in the discharge of his responsibilities to serve the -needs of the people of the said Union Council. This general assertion is not substantiated by any reason whatsoever.
14. We are therefore, of the considered opinion that the impugned notice is not in accordance with the provisions of section 85(1) as councillors have only expressed their feelings and not their opinion and basic ingredient of section 85(1) of Sindh Local Government Ordinance, 2001 is that one of the councillors should be of the opinion that there is reason to believe that the Union Nazim is acting against the public policy and the interest of the people and is inactive and neglecting to serve the needs of the people and after getting his opinion seconded by another member of the council give a notice to move a motion to recall the Nazim. The important words in this section are the words 'opinion' and `reason to believe' and these words have been subject of a number of judicial decision.
15. In Burhan Engineering Co. Ltd v. Income Tax Officer Companies Circle II.
' Karachi and others (1985) Tax 55 (H.C. Kar), this Court enunciated the following principle:--- 8(ii) That the expression "reason to believe" does not mean a purely subjective satisfaction on the part of the Income Tax Officer but the reason must be held in good faith and cannot be a mere pretence.
16. In Chaudhry Shujaat Hussain v. State (1995 SCMR 1249), the Honourable Appex Court defined 'reason to believe as under:--- ' In this regard reference can also be made to Ch. Abdul Malik v. The State (PLD 1968 SC 349). The term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in "reason to believe."
17. In Messrs. Spiceco International v. Regional Commissioner of Income Tax Southern Region, Karachi and another (1993 PTD 1007), this Court held as under:--- ' The validity of the exercise of power by the concerned Income Tax Officer or the fact that such action had been taken by him in good faith, would always be open to question unless the material upon which such action had been taken was disclosed to the assessee. Failure to disclose such material to the assessee would render such action completely arbitrary and discriminatory because conclusions would be drawn by the Income Tax Officer or the Regional Commissioner of Income Tax, himself without being supported by any evidence. The contention that enquiry was to be conducted by the Income Tax Officer could not by itself cloths such action with validity.
18. In the famous case of Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 413), the Honourable Supreme Court examined the material, on the basis of which the president had exercised his discretion to dissolve the National Assembly and dismiss the' Cabinet under Article 58
(2) b of the-Constitution of Islamic Republic of Pakistan and held that the material was not enough to justify dissolution of Assembly.
19. When we examine the notice for recall in the light of provisions of section 85(1) and these judgments, we find that it does not fulfil the requirements of section 85(1) as it based on feelings and does not express any opinion that there is reason to believe that the petitioner has committed the defaults mentioned in the notice. No reasons have been given for the formation of belief or even for the feelings expressed and no reasons were presented before the Union Council or even before us at the time of hearing of the case, which can be deemed to fulfill the requirements of the above cited judgments. Therefore, it is our considered opinion that this notice cannot be sustained and the entire structure is based on the foundation of this notice and it a settled law that structure based on the foundation of a notice which is declared to be illegal collapses. We have therefore, no option but to quash the notice of recall and the entire proceedings emanating from it. The cases relied on by the learned counsel for respondent on maintainability will not help the respondent as the disputed question is a question of law and does not involve disputed facts. Since we have already quashed the proceedings we need not give our opinion on the other arguments canvassed by the learned counsel for the petitioner.
20. The foregoing are the reasons in support of our short order delivered in Court on 25-6-2007 by which we had allowed the petition and quashed the entire E proceedings initiated against the petitioner under section 85 of Sindh Local Government Ordinance, 2001.