Town Council, Lyalipur Town, Faisalabad on vacation of the office of it's Town Nazim, had elected three officiating Nazims. Firstly, the petitioner was elected as officiating Nazim on 7.12.2007 when the House chose him unopposed. Secondly, the House in it's meeting dated 5.5.2008 chose Respondent No, 4 as officiating Nazim and while doing so, they levelled certain allegation against the petitioner (existing officiating Nazim) at the relevant time and carried "No Confidence Motion" against him.
Lastly, Respondent. No, 2 was elected by the house on 1.7.2008 as officiating Town Nazim through a resolution. Resultantly, Government of Punjab through Secretary LG & RD, issued a notification in this regard on 8.8.2008.
2. The petitioner filed W.P.No, 10033/2008 and challenged resolution dated 1.7.2008 and the notification dated 8.8.2008, whereby Respondent No, 2 was notified as officiating Nazim.
Respondent No, 4, has invoked extra ordinary constitutional jurisdiction of this Court, vide W.P. No, 6875/2008 challenging therein the resolution of the Town Council dated 5.5.2008, wherein the petitioner was elected as officiating Nazim. The petitioner filed another W.P. No, 8121/2008 and challenged the direction issued by the respondent vide letter dated 30.6.2008, whereby Local Government declined to take any action due to pendency of W.P. No, 6875/2008. These petitions involve common questions of law and fact, therefore, the same are being disposed of through this common judgment.
3. Learned counsel for the petitioner has contended that the petitioner has been elected as officiating Town Nazim and he has to continue till such time, new Nazim as envisaged in Section 68 of Ordinance, 2001 is elected. He has submitted that resolutions dated 5.5.2008 and 1.7.2008 are illegal and offend the provisions of Section 156(6) of Ordinance, 2001. Learned counsel went on to argue that Chief Executive of the Province has suspended resolution dated 7.12.2007, without any lawful justification and impugned act of respondents is mala fide and outcome of political rivalry. It was contended that respondent filed parawise comments and reply in W.P. No, 6875/2008, wherein the reply to Para No, 6 of the petition, the respondents admitted that an officiating Nazim, once elected cannot he replaced, as law has not provided any procedure in this regard.
4. Learned counsel for Respondent No, 2 (Mr. Waqar Ahmad Sheikh, Advocate) has submitted that the petitioner has not been notified as officiating Town Nazim by Government of Punjab, under Section 159 and he assumed the charge on the basis of notification of Naib-Nazim, who is not competent to issue such notification. The foundation on which the petitioner has raised structure has no legal basis. The whole structure, having no valid basis is required under law, to fall to the ground. Learned counsel emphasized that Respondent No, 2 has validly been notified by the department as officiating Town Nazim, thus, it is Respondent No, 2 who can act and perform his duties as officiating Nazim. Learned counsel in this regard has referred to letter whereby Section Officer of Local Government ald Community Development Department, Government of Punjab, Lahore has addressed communication to District Co-ordination Officer, Faisalabad that the petitioner as well as Respondent No, 4 have not been notified as Town Nazim. The claim of the petitioner and also of Respondent No, 4 that they are validly elected officiating Nazirn, is of no value. Learned counsel went on to argue that the petitioner has assumed charge on the direction of Naib-Nazim and submitted that there is no provision of law which authorizes Naib-Nazim to issue such direction. Learned counsel has submitted that instant petition is not maintainable. Mr. Tallat Farooq Sheikh, learned counsel for Respondent No, 4 who is also the petitioner in W.P. No, 6875/2008, has submitted that instant writ petition involves factual controversy and as such is not competent. He has submitted that impugned resolution can only be set aside by the Chief Executive of the Province and alternate remedy available to the petitioner is to invoke provisions of Section 70(B) of Ordinance, 2001. He went on to argue that the petitioner has signed and issued, bills to the tune of Rs, 1,72,00,000/- in one night. He has misused the official vehicles and the car which was being misused was repossessed from him. Learned counsel in this regard referred to letter dated 16.6.2008. The petitioner was involved in corruption in the grant of contract for tube lights (street lights). Learned counsel has submitted that Respondent No, 4/petitioner in W.P. No, 6875/2008 was appointed vide resolution dated 7.12.2007 to act as officiating Town Nazim.
Resolution dated 7.12.2007 has not been assailed and 40 out of 49 councilors, reposed confidence in Respondent No, 4 as officiating Town Nazim. He has pressed his petition for implementation of Resolution dated 5.5.2008.
5. Learned Law Officer has submitted that officiating Town Nazim once appointed cannot be removed as there is no provision of law whereby an officiating Nazim can be ousted from his office.
He has placed reliance on an unreported judgment of this Court, passed in W.P. No, 8330/2008.
6. Heard learned counsel for the parties and record perused.
7. Town Council Lyallpur Town, Faisalabad appointed/elected the petitioner as officiating Town Nazim vide resolution dated 7.12.2007. This was a unanimous resolution. The Town Council thereafter elected Respondent No, 4 (petitioner in W.P. No, 6875/2008) as officiating Town Nazim through resolution dated 5.5.2008. Town Council passed another Resolution on 1.7.2008 and appointed Respondent No, 2 as officiating Town Nazim who subsequently assumed the charge on 8.8.2008. There are three resolutions in the field whereby three different persons have been elected as officiating Town Nazim at different points in time.
8. Section 68 provides that when the office of Town Nazim falls vacant, officiating Town Nazim is elected till a new Nazim is elected, under Section 156(5) of Ordinance, 2001. Section 156(5) of the Ordinance provides for filling of the vacancy of Town Nazim through By-election, within 120 days of the occurrence of the vacancy in terms of Section 148. In the case in hand period of 120 days, lapsed in the month of March, 2008 and despite the 'lapse of six months, thereafter, no date of election has been announced by the Election Commission of Pakistan. The authority for Local Government Elections within the contemplation of Section 150 is the Chief Election Commissioner, who has to issue notification u/S. 164 of Ordinance, 2001. The election of officiating Nazim as against the election of Nazim,. is conducted u/S. 156(6) read with Sections 48 and 68 of the Ordinance. The election is not conducted by Chief Election Commissioner, nor the electoral college elects the officiating Nazim. It is a stopgap arrangement, where an additional charge is entrusted to one of the member of the Council for a specified period. Such member retains his membership besides his office as officiating Nazim. The only condition imposed upon such person is that he is debarred from taking part in the election of office of Nazim. Election of Nazim and Naib-Nazim is conducted by the Election Commission of Pakistan, while election for officiating Nazim, such power vests with the Council. Conduct of election, terms of office, electoral college and procedure for election of Nazim and officiating Nazim is altogether different. The officiating Nazim cannot be equated with Nazim.
The term Nazim and Naib-Nazim is defined in Section 2(XXIV) and (XXIII) respectively, in Ordinance, 2001. The term "officiating Nazim" has not been defined by the Ordinance itself. There is no provision in Ordinance, 2001 whereby a procedure for removal or recall of the officiating Nazim is provided.
Non-mention of any procedure for the removal of the officiating Nazim, is not an accidental slip but is wilful omission. A recall motion against an elected Nazim or NaibNazim, cannot be initiated or set to motion within first six months of the assumption of the charge of such office. An officiating Nazim assumes his office for the period till new Nazim is elected. Election of Nazim is required under the law, to be elected within 120 days, of the occurrence of the vacancy. Officiating Nazim has to leave the office, before lapse of six months' time, thus, the legislature has intentionally not provided any procedure for the removal of the officiating Nazim. Provisions of law under Ordinance, 2001 relating to the Nazim, cannot be applied to officiating Nazim. There is no reason to import, by implication, a provision of law which otherwise does not 'exist in a statute. The concept of removal of Nazim through a recall motion or otherwise, is alien to the provisions of Ordinance, 2001. So the officiating Nazim can neither be removed, nor there is any provision for the election of another officiating Nazim, in his place. Subsequent elections of officiating Nazim and recall of officiating Nazim, is in conflict with the law and has thus no sanctity. Resolutions dated 5.5.2008 and 1.7.2008, wherein Respondents No, 2 & 4 have been elected as officiating Nazim offend the provisions of law and are, therefore, not sustainable. The impugned resolutions are declared to be illegal and are thus set aside by allowing this petition.
10.Adverting to assumption of office of officiating Nazim without oath. The arguments of learned counsel for Respondent No, 2 (Mr. Waqar A. Sheikh, Advocate) are not convincing that the petitioner has not taken oath of office under a notification by the Government. An officiating Nazim is already under an oath as a member and on being elected officiating Nazim does not loose his membership, therefore, he is not to take new oath. Elected Nazim or Naib-Nazim are required to take oath u/S. 160(1) of Ordinance, 2001. Similarly, Section 159(2) provides that Government shall notify the assumption of office of Nazim or Naib-Nazim. The word officiating Nazim is missing from these provisions of law. The appointment of officiating Nazim is temporary arrangement and oath for such office, does seem to be the intention of legislature and that is why, it is not provided in the statute the way Naib-Nazim does not take oath, during temporary absence of Nazim. Naib-Nazim exercises the powers of Nazim without requirement of the Notification or an Oath. The Government in order to avoid any confusion regarding, signing of cheques, bills etc. as an abundant caution, can issue a notification under Section 159(2) and notify the assumption of office by officiating Nazim but in case such notification is not issued, would not invalidate the office of officiating Nazim.
11.For the foregoing, this petition and W.P. No, 8121/2008 are allowed, the petitioner is declared to be officiating Town Nazim, Lyallpur Town and resolutions dated 5.5.2008 and 1.7.2008 are declared having been passed without any lawful authority and of no legal effect. W.P.No, 6875/2008 having no merit is accordingly dismissed. Chief Election Commissioner is directed to announce a date for holding of election, within one month from today, so that Town Council be represented through an elected Nazim.