This ICA is directed against the order dated 15.7.2008 whereby the writ petition filed by the appellant was dismissed.
2. Facts necessary for the adjudication of the lis at hand are that both the appellant and Respondent No, 2 by virtue of their respective offices were the members of Tehsil Council Shakargarh. Respondent No, 2 was also elected as Naib Nazim of the said Council. On 26.11.2007, the then Tehsil Nazim resigned and consequently the office of Tehsil Nazim fell vacant. A meeting of the house was apparently convened on 5.12.2007 which was presided over by Respondent No, 2 being the Naib Nazim with the object of electing an officiating Nazim and consequently Respondent No, 2 was elected as officiating Nazim. Subsequently, motion for recall was moved against Respondent No, 2 which was carried by the majority of the house and pursuant thereto, notification was issued by the Election Commission of Pakistan on 11.3.2008 holding that Respondent No, 2 had ceased to hold the office as Naib Tehsil Nazim. Whereafter, Respondent No, 1 issued an order directing the convening of the Tehsil Council to elect an officiating Tehsil Nazim vide its notification dated 8.3.2008. Pursuant whereof apparently meeting of the house was convened and the appellant was elected as the officiating Tehsil Nazim and order in this behalf was issued by Respondent No, 1 on 3.4.2008. Said order was recalled by Respondent No, 1 subsequently through order dated 3.7.2008 declaring that Respondent No, 2 was and should continue to function as the officiating Tehsil Nazim. The present appellant challenged the said notification dated 3.7.2008 through a writ petition which was contested by respondents and eventually dismissed by the learned single Judge of this Court by means of order dated 15.7.2008 sought to be impugned herein.
3. It is contended by the learned counsel for the appellant that the Respondent No, 2 had lost the confidence of the majority of the house, hence, had ceased to hold the office as the officiating Tehsil Nazim and in his stead the appellant had been elected as the officiating Tehsil Nazim, therefore, the order of Respondent No, 1 dated 3.7.2008 was without lawful authority. It is further contended that even otherwise an officiating Tehsil Nazim could only be elected for a maximum period of 120 days which having lapsed, the Respondent No, 2 could no longer hold the office or perform the functions of officiating Tehsil Nazim.
4. The learned counsel for- Respondent No, 2 controverts the contentions being raised on behalf of the appellant and has further contended that respondent was duly elected as officiating Tehsil Nazim and there is no provision in law for his recall. The learned Additional Advocate General also controverts the assertions being made on behalf of the appellant.
5. Heard. Record perused. It is an admitted fact between the parties that the original Tehsil Nazim resigned and the office fell vacant and in such an eventuality Section 156(5) of the Punjab Local Government Ordinance 2001 enjoins that such vacancy shall be filed in through bye-election within 120 days of the occurrence of such vacancy. Sub-section 6 of Section 156 of the Ordinance ibid further provides that during the intervening period, the Council concerned by a majority votes shall elect an officiating Nazim from amongst its members in accordance with Section 68 of the Ordinance which also provides that such meeting shall be presided over by a Naib Nazim. It is an admitted fact between the parties and a matter of record that Respondent No, 2 was elected as the officiating Tehsil Nazim on 5.12.2007 in accordance with the provisions of the Ordinance.
6. A Tehsil Council can remove a Tehsil Nazim through a recall motion in terms of Section 63 of the Ordinance. Similarly, a Naib Nazim can be removed through expression of no confidence by majority of the members of Tehsil Council in accordance with Section 72 of the Ordinance. There is no provision in the Ordinance for the removal of an officiating Tehsil Nazim. Such provision is conspicuous by its absence. Thus, the proceedings of the Tehsil Council purporting to express no confidence in Respondent No, 2 both in fact and in law were and could only be with reference to the office of Naib Nazim, and as a consequence thereof the Respondent No, 2 obviously ceased to hold the office of the Naib Nazim of the Tehsil Council as is also stated in the notification dated 11.3.2008. And in fact & in law Respondent No, 2 continued to hold the office of the officiating Tehsil Nazim. Consequently, the order dated 25.3.2008 directing the election of an officiating Tehsil Nazim was not only factually incorrect but of no legal consequence and the result of an error and the said error was rectified by an order/notification dated 3.7.2008 which was impugned by the appellant. In this view of the matter no exception can be taken to the order/notification dated 3.7.2008. There can be escape from the fact that an officiating Tehsil Nazim is not nominated to his office but is elected to the said seat and enters the office through the will of the majority of the electoral college i,e,, Tehsil Council. In the normal course of events he is to hold the office for a period of 120 days, only and it is perhaps in view of the aforesaid very short period of time no provision for his recall has been provided. Even an elected Tehsil Nazim cannot be recalled or removed from his office by a Tehsil Council for a period of six months from his assuming the office as has been provided by Section 63 sub-section 8 of the Ordinance. Consistency in the intention of the legislature can be discerned.
7. In view of above, there is no merit in this appeal as the order of the learned Judge of this Court is totally unexceptionable and not open to any interference. Hence, this appeal must fail. The learned Judge of this Court had directed in his order dated 15.7.2008 for holding of the election to the office of Tehsil Nazim within one month. We are informed by the learned Addl.AG that elections were scheduled but subsequently cancelled. Be that as it may, we are confident that vacancy of Tehsil Nazim shall be filled through a fresh election to be conducted by the Election Commission of Pakistan as expeditiously as is practical and possible. Dismissed accordingly.