1. ' ABDUR REHMAN FARUQ PIRZADA, J.--- By this petition, the petitioner has challenged the proceedings, dated 22-4-2008, 23-4-2008 and 24-4-2008 initiated in the Taluka Council Tando Bago, District Badin against the petitioner and the votes on recall motion dated 14-5-2008, on the basis of which the notification, dated 19-5-2008 was issued by respondent No,1 and notification dated 27-5-2008 was issued by Secretary to Government of Sindh, Local Government Department, whereby the petitioner was unseated as Taluka Nazim, Taluka Council Tando Bago, District Badin.
2. ' Brief facts of the case as stated in the petition, are that the petitioner and respondent No,4 were elected Taluka Nazim and Taluka Naib-Nazim, respectively, of Taluka Council Tando Bago, District Badin. The petitioner all along performed his duties honestly and deligently and there were no complaints whatsoever against him. However, respondent No,4 with the sole purpose of removing the petitioner, summoned the session of Taluka Council Tando Bago vide notice dated 18-4-2008 for 22-4-2008. In the session held on 22-4-2008, the respondent No,5 Mir Muhammad Rind, Member Taluka Council proposed to transfer the petitioner and appoint some one else as Nazim; the proposal was seconded by respondent No,6 Rustam Malkiani, Member Taluka Council. The record did not show if the session was adjourned and the aforesaid proposal was fixed for 23-4- 2008 for deliberations. No notice was issued to the petitioner and many other members, but the respondent No,4 Ahsan Ali Bhurgri, Taluka NaibNazim claimed to have held the session on 24-4- 2008, during which the open voting was held; respondent No, was appointed acting Nazim and the session was adjourned to 2-5-2008. Later, on 2-5-2008 no session was held. Respondent No,3 claimed to have sent the letter dated 23-4-2008 to respondent No,1, whereas the respondent No,4 vide letter, dated 23-4-2008 requested the District and Sessions Judge, Badin to propose the name and designation of Judicial Officer to be appointed as Returning Officer for conducting the secret ballot against the petitioner. The respondent No,4 sent another letter dated 24-4-2008 to respondent No,1 the Chief Election Commissioner, informing that no confidence motion against the petitioner had been completed on 24-4-2008 and that temporary charge was handed over to Taluka Naib Nazim till further decision of the house. The respondent No,1 vide order, dated 7-5-2008 appointed Civil Judge and Judicial Magistrate, Tando Bago to act as Returning Officer for conducting the proceedings of Motion for recall through secret ballot against the petitioner. The respondent No,4 claimed to have given notice of secret ballot to the members. The petitioner was actually not served with notice. However, respondents manipulated the service of notice upon the petitioner through one Sanitary Inspector. The Returning Officer conducted the secret ballot on 14- 5-2008 and sent up such report. On 16-5-2008, respondent No,7 Sikandar Ali issued notification to the effect that he was unanimously elected as officiating Taluka Nazim Taluka Bago and that he had resumed charge of the office w,e,f, 16-5-2008. On 19-5-2008 respondent No,1 issued the notification to the effect that petitioner had ceased to hold office of Taluka Nazim forthwith, whereafter respondent No,2 issued notification, dated 27-5-2008 declaring the respondent No,7 as officiating Taluka Nazim.
3. ' The counter-affidavits were filed by respondents Nos.3, 4, 5, 6 and 7. Through the counter- affidavits filed by respondents Nos.3, 4 and 7 the veracity of documents filed by petitioner along with petition, were challenged and the pleas generally raised by the petitioner were denied.
4. ' Respondent No,5 Mir Muhammad Rind and respondent No,6 Rustam Ali filed their affidavit and counter-affidavit, respectively, in this Court, whereby they supported the petition, while disputing the veracity of proceedings of Recall Motion. Respondent No,5 Mir Muhammad stated that alleged proposal against the petitioner did not bear his signature, and that he had not attended the proceedings of Taluka Council, Taluka Tando Bago on 22-4-2008, 23-4-2008 and 24-4-2008. He also denied the signatures on the documents pertaining to the proceedings of Taluka Council. At the command of influential persons, criminal cases vide F.I.Rs, Nos.30 of 2008 and 32 of 2008 were registered against him and other persons. On 13-5-2008 he was detained in rest house of Pangrio Sugar Mill near Pangrio, whereafter, he was brought under police custody on 14-5-2008, and was coerced to vote against the petitioner, under threats of dire consequences.
5. ' Respondent No,5 Rustam Ali through his counter-affidavit before this Court, stated that the petitioner was performing his duties as Taluka Nazim honestly, and that he had no grievance against the petitioner. The respondent No,4, in collusion with previous Zila Nazim and Naib-Nazim intended to remove the petitioner. Respondent No,6 was forced to sign the proposal against the petitioner. He further stated that he had no prior notice of Taluka Council meeting. On 22-4-2008.
6. One F.I.R. No,28 of 2008 was registered against him in order to coerce him to participate in the proceedings against the petitioner, apart from the threats of closure of watercourse and arrest of his brothers extended to him. He along with other members of Taluka Council was detained in rest house near Pangrio on 13-5-2008 from where he was taken on 14-5-2008 and coerced to vote against the petitioner, under threats of torture and humiliation.
7. ' Learned counsel for the petitioner contended that entire proceedings taken up'by respondents from 22-4-2008 to 14-5-2008 were based on mala fides, and were violative of the provisions of Sindh Local Government Ordinance, 2001. The proceedings against the petitioner were not based on any legal and valid notice to move the motion for recalling, as such the proceedings were ab initio void. Learned counsel argued that proposal allegedly moved on 22-4-2008 by respondents Nos.5 and 6 could not be deemed as a notice to move a motion for recall of the petitioner. Since the proceedings on 22-4-2008 were conducted without any valid notice for said date, and except the afore said proposal, no other agenda was discussed, as such the said proceedings on 22-4- 2008 as well as all subsequent proceedings based upon the notice dated 22-4-2008 were void and not binding upon the petitioner. The petitioner was not provided with the copy of motion or the statement of allegations against him. The entire proceedings against the petitioner were held in his absence. Learned counsel further argued that although the petitioner resided at a village where there was no courier service, but the respondent No,4 had manipulated the endorsement through Sanitary Inspector and by way of courier service. The petitioner had not received any notice for session for ballot on 14-5-2008, as such the said proceedings were against the principle "audi alteram partem" and liable to be quashed.
8. ' Conversely, Mr. Naimatullah Soomro, learned counsel for respondent No,7 submitted that proceedings for recall of petitioner as Taluka Nazmi were held in accordance with the requirements of law. Since the petitioner was acting against the public policy and the interest of people, as such, the respondents Nos.5 and 6 moved a motion in Taluka Council for recall of Taluka Nazim. The Taluka Council was already in session, as such the motion was taken up for deliberations on the next day viz. 23-4-2008, and thereafter on 24-4-2008, when 11 out of 14 members present supported the motion moved by respondents Nos.5 and 6. Learned counsel argued that petitioner was given fair chance of participation in proceedings in Taluka Council session, and also to address the council in his defence, however, the petitioner chose to remain absent. The petitioner was properly served the notice of the Taluka Council meeting on 22-4,2008 as well as of the meeting of 14-5-2008, when the secret ballot was held. Learned counsel contended that even otherwise, in the light of provisions of section 63(3)S.L.G.O., 2001 there was no need to issue any notice during the running session to move a motion for recalling; however, it was the petitioner's own right to appear before Taluka Council and address in defence, which right was not availed by the petitioner. Learned counsel submitted that on 14-5-2008, the proper proceedings for recall of petitioner were conducted under the supervision of a Judicial Officer; and by way of a secret ballot, the recall proceedings attained finality, as a result of which petitioner lost his seat.
9. ' Mr. Allah Bachayo Soomro, learned Additional Advocate-General supported the arguments submitted by learned counsel for respondent No,7 while contending that procedure as laid down under section 63(3), S.L.G.O. Of 2001 was properly followed by the respondents as a result of which petition was removed as Taluka Nazim.
10. ' We carefully considered the submissions made by learned counsel for the petitioner, learned counsel for respondent No,7 as well as learned Additional Advocate-General and also perused the record.
11. ' Since the focal point involved in the instant petition pertains to the proper compliance of provisions of section 63 of S.L.G.O., 2001 or otherwise, it may be pertinent to refer to the provisions of section 63 of the Ordinance, which are reproduced as under:--- "63. (Recall) of a Taluka Nazim.--- (1) If in the opinion of a member of the Taluka Council, there is a reason to believe that the Taluka Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity to improve governance and the delivery of services, he may, seconded by another member of the Council, give a notice to move a motion in the Taluka Council through Naib Taluka Nazim for recall of Taluka Nazim.
(2) On receipt of notice referred to in subsection (1), the Naib Taluka Nazim shall summon a session of the Taluka Council not earlier than three days but not later than seven days, if the Taluka Council is not already in session.
(3) Where the Taluka Council is already in session, the motion referred to in subsection (1) shall be taken up for deliberations on the next day from its receipt by the Naib Taluka Nazim.
(4) Where the motion referred to in subsection (1) is approved by two-third majority of the votes of the total membership of the Council through a secret ballot to be conducted by the Returning Officer nominated by the Chief Election Commissioner, the Taluka Nazim shall cease to hold office forthwith and the notification shall be issued in this behalf by the Chief Election Commissioner accordingly.
(5) ....................................................
(6) ......................
(7) The Taluka Nazim shall have the right to appear before the Taluka Council and address it in his defence.
12. (8)
13. 'It is clear from the bare reading of the provisions of section 63 of the Ordinance that if any member of Taluka Council forms an opinion that there is a reason to believe that Taluka Nazim is acting against the public policy or the interest of the people, he may, seconded by another member of the council, give a notice to move a motion in Taluka Council through Naib-Taluka Nazim for recall of Taluka Nazim. Admittedly, there is nothing on record to show that petitioner was issued a written notice of the motion under section 63(1) of the Ordinance. As per record, in pursuance of the notice dated 18-4-2008 issued by respondent No,4 Taluka Naib-Nazim, the session of Taluka Council was summoned for 22-8-2008, 23-8-2008 and 24-8-2008 with a clear agenda comprising of three items viz. The recitation from Qur'an Pak, deliberations on the development works and discussion in respect of budget for the year 2008-09. It is an admitted position that the motion for removal of petitioner was not the part of the agenda. The motion was said to have been moved when the council was in session. However, it has not been established that any notice of the motion was issued to the petitioner. On this point, learned counsel for respondent No,8 laid much emphasis on the plea that no notice was necessary to be issued to the petitioner, since the council was in session. However, we do not agree with the above view as we feel that requirement of a notice as envisaged by provisions of section 63(1) of the Ordinance, could not be dispensed with. Once the conclusion is arrived at, that no written notice in respect of motion during the session of Taluka Council was given to the petitioner, then no liability can be imposed upon the petitioner for remaining absent during the proceedings of session. As a necessary corollary of aforesaid facts, the logical presumption would be that the petitioner was not afforded the proper opportunity to appear before the Taluka Council and address it in his defence, as provided under section 63(7) of the Ordinance.
14. 'It is significant to note that on the basis of alleged proceedings initiated by respondents Nos.5 and 6 the motion was taken up for deliberations and put to vote, as a result of which respondent No,4 was appointed as acting Nazim. Later on, the correspondence was made with the Election Commission of Pakistan, whereafter proceedings of recall motion through secret ballot were held on 14-5-2008. Once again the service of the said session was seriously disputed by the petitioner.
15. The respondents claim that the notice was served upon the petitioner through one Sanitary Inspector. The legality of such proceedings would be open to question on various grounds. First, the entire proceedings are actually based upon the initial notice given by respondents Nos.5 and 6. On perusal of the said notice dated 22-4-2008 it is revealed that the respondents Nos.5 and 6 requested for transfer of the petitioner and appointment of some other Nazim; it is no where mentioned in categorical terms that notice was given to move a motion in Taluka Council for recall of Taluka Nazim. Secondly, the notice of said proposal/application by respondents Nos.5 and 67 was not issued to the petitioner. Thirdly, since the petitioner was not issued any notice whatsoever, he could not have availed his right before the Taluka Council to address it in his defence: Since the initial notice to move the motion in Council for recall of the petitioner was not made in accordance with requirements of law, the same would provide inherently weak foundation, and consequently the whole edifice built thereon in form of entire subsequent proceedings for recall of the petitioner, is bound to crumble down.
16. ' It may be pertinent to refer to the case of Saifullah Memon v. Union Council No,2 Qasimabad and 2 others as reported in 2004 CLC 707 (Karachi), wherein it was laid down as under:--- "In the present proceedings admittedly the motion was moved when the Council was in session.
17. There is nothing on record to confirm that the petitioner was issued written notice of the motion under section 92(1) of the Ordinance. Even this fact of issuance of notice upon the petitioner has not been pleaded either in the counter-affidavit of the Acting Nazim or in the supporting affidavits of the members. The requirement of notice contemplated under the provisions of subsection (2) of section 92 could not be dispensed with even if the Union Council is already in session. In the present proceedings we find that no written notice had been given to the petitioner.
18. ' Unless the petitioner was served with the notice he could not be said to have been given opportunity under section 92(7) of the Ordinance to explain his position. Moreover, the allegations on the basis of which the motion against the petitioner has been moved ex facie are vague. From the reading of the provisions referred to hereinabove it is obligatory that a person against whom a.
19. Motion under section 92(1) is moved must know the allegations containing specific instances on the basis of which motion for his removal has been moved. No elected representative to be deprived of his office on the basis of vague allegations without notifying him in writing as observed by us hereinabove. The charges as stated in the pleadings could hardly be said to be specific which could warrant motion of no confidence against the petitioner. It has been argued by the learned counsel for the respondent No,1 that the petitioner was provided fair opportunity and to this effect affidavits of different members of the respondent No,1 were placed on record. These are stereotype affidavits and even if no affidavit in rebuttal has been filed there is nothing on record which reflects that the respondent No,1 has complied with the mandatory provisions of section 92 prior to holding the voting on the motion of no confidence against the petitioner. Such actions circumventing the procedure would shake the confidence of the electorates of the constituency and would have far-reaching effects on the public in general. We may also observe that the minutes of meeting did not authorize the Acting Nazim to preside over the session in which motion of no-confidence was moved against the petitioner. There appears to be serious differences between the Acting Nazim and the petitioner on account of which the motion under section 92(1) of the Ordinance has been moved. The members and or office bearers of the Council should not settle their score within the Council on the basis of personal vengeance. The law in this respect speaks of the interest of public, which interest should be kept supreme while move of the nature is made. Under these circumstances, since we hold that no written notice containing the allegations with specific instances has been issued to the petitioner, therefore, the Resolution of respondent No,1 dated 5-6-2003 and subsequent Notification of respondent No,2 dated 11-6-2003 were passed in violation of the provisions of sections 89 and 92 of the Ordinance and the same are without lawful authority. The petitioner shall continue to hold the office of Naib-Nazim of Union Council No,2, Qasimabad, Hyderabad."
20. 'The entire proceedings against the petitioner rest upon the motion allegedly moved by respondents Nos.5 and 6. However, it is important to note that both the respondents Nos.5 and 6, through their affidavit/counter-affidavit filed before this Court, have completely refuted the genuineness and veracity of the entire proceedings for recall of the petitioner. As mentioned above, both the said respondents C categorically stated that they did not move any proposal/motion whatsoever against the petitioner, that petitioner was performing his duties as Taluka Nazim honestly, that they had no grievance against the petitioner, and that both of them were subjected to undue coercion by way of criminal cases having been registered against them and putting them under wrongful detention, for the purpose of obtaining their votes.
21. ' These affidavits have seriously undermined the credibility and veracity of IC the entire proceedings for recall of the petitioner.
22. ' In view of the foregoing facts and circumstances, no sanctity can be attached to the impugned proceedings against the petitioner, as the same were initiated in utter disregard of the canons of natural justice and in violation of the express provisions of law.
23. 'By short order, dated 16-7-2009, we had allowed this petition, leaving it open to the parties to follow the procedure for the purpose of removal of the petitioner in terms of section 63; these are the reasons for the same.
24. ' The Election Commission of Pakistan shall notify the petitioner as Taluka Nazim, Taluka Council Tando Bago, District Badin. The copies of this order be sent to all the concerned authorities by fax for compliance.