1. ' DR. RANA MUHAMMAD SHAMIM, J.---Learned counsel for the petitioner submits that the petitioner is elected Zila Nazim of District Government Sukkur. Due to political rivalry respondents Nos. 2 and 3 have been prompted to issue notice on 26-2-2008 to the respondent No,1 under section 24(1) of the Sindh Local Government Ordinance, 2001 for recall of the petitioner on the post of Zila Nazim on the various allegations, i,e,, that no improvement in governance was made by the Zila Nazim. Both the respondents Nos. 2 and 3 requested respondent No,1 to summon the session of Zila Council so that no confidence motion could be moved against Zila Nazim and further proceedings in this regard be taken up. On perusal of the said motion the respondent Nos.2 and 3 levelled the following allegations against the Zila Nazim:-- "(1) That the Zila Nazim District Government Sukkur has attacked against the public policy as well as the interest of the people as from the very beginning no improvement was made in any field. More over not any developmental scheme worth-mentioning was initiated not only this but he is also guilty of accommodating his favorites in awarding contracts.
(2) That no any improvement in Governance was made as there is always lack of service delivery to the people during his tenure.
(3) Since there are connected and general allegations and there is no clear and specific allegations against the Zila Nazim District, Government Sukkur. In the application/Notice which is the mandatory requirement of section 24(1) SLGO 2001 i,e, is for recall of the Zila Nazim District Government Sukkur, hence the same cannot be considered substantial reasons to believe that, the Zila Nazim District Government Sukkur is acting against the public policy or the interest of people of District Sukkur, hence the said notice cannot be entertained and is hereby failed.
2. ' The respondent No,1, however directed both the Councillors/ Members of Zila Council Sukkur to mention clear and specific allegations as required under section 24(1) of SLGO 2001 so that the appropriate proceedings could be initiated and the sessions of Zila Council be summoned."
3. ' The respondents Nos. 2 and 3 on receipt of such reply/ directions, both respondents submitted that they intend 'to move motion in the Zila Council for recall of Zila Nazim on the following specific grounds, which reproduced hereunder:--
(1) "That, Zila Nazim has been completely fail to provide the clean drinking water to the citizens of Rural and Urban citizens of Sukkur.
(2) That with the approval of Zila Nazim entrance fee amounting to Rs,10 per person has been imposed for the citizens of Suklcur.. Who are visiting the only amenity park Lab-e-Mehran due to which the poor people are unable to visit the Lab-e-Mehran.
(3) That the Zila Nazim has been failed to prepare devolution plan for development of Sukkur yet today there is no concept of devolution plan.
(4) That, plan of Mega City project prepared on the directions of Zila Nazim, under which work line of sewerage water is going on entire roads had been destroyed but no amount is fixed for its repair and reconstruction of destroyed roads of Sukkur City.
(5) That the Zila Nazim has never taken pain to take action against police access, in spite of that he is very much in knowledge that since last one and two years, Police committed the murder of innocent people while showing the fake encounters.
(6) That the Zila Nazim never takes the notice of bogus constructions work of sewerage line, when as more than one billion amount is expended but the work is still incomplete.
(7) That there is no space for pedestrian to freely walk on foot-paths of Sukkur and other Citizens of Sukkur, which are being encroached by Rehra mafia, even foot-path upto open area of Ghanta ghar is encroached by illegal encroachers.
(8) That in spite of directions of Honourable High Court of Sindh, the Cattle Waras are still in city, due to which the sewerage line becomes blocked, school and office going men, women and children are facing hardship, because simultaneously buffaloes are coming on road, in spite of that the land is reserved for cattle colony and same is encroached by encroachers.
(9) That the land for cattle market is also available that the Race Course Road, which is a busy road of city is also encroached by cattle sellers.
4. (10)That, in spite the directions of High Court, the encroachment upon bunder wall has never been removed for the Zila Nazim had taken efforts, neither he complied with the orders of Honourable High Court of Sindh.
5. (11)That the Sessions of Council never been held timely and the days according to Sindh Local Government Ordinance are incomplete.
6. ' That you are therefore, requested to kindly summon the Sessions of the Zila Council so that no confidence motion could be moved in the said Council and further proceedings in this regard to be taken.
7. ' That prior to this one resolution regarding calling of Session was moved before you and same has not been entertained on the pretext that the allegations were not specific. In the present we have levelled specific allegations which are self-explanatory."
8. ' On 5th March, respondent No,1 issued a letter No,294 to the respondents Nos.2 and 3. The contents of the same are reproduced as under:-- "Your above mentioned application received by this office for the recall of Zila. Nazim Sukkur, on the flimsy and concocted grounds. Whereas, the majority of your allegations do not belong to the functions and responsibilities of Zila Nazim Sukkur, but falls within the ambit of concerned Taluka Municipal Administrations.
9. ' Moreover, you were replied vide letter No,ZZN/C-293/2008, dated 28-2-2008, in response to your earlier application received on 28-2-2008 that it is the requirement of section 24(1) that there should be some specific and clear allegations, falling within the provisions of sections 17, 18 and 22 of SLGO-2001, for bringing the recall motion of Zila Nazim. But the said requirements of the law are still missing in your application, referred above.
10. ' It may further be informed to you that some members of Zila Council have also raised their objections against the authenticity and genuineness of your application referred above as much as it has been reported that you both being illiterate even do not know about the allegations, which are written in the English language. Furthermore, it is also reported by the office that our application has been received through Mr. Ikhtiar Hussain Mahar, who is neither member nor has got any concern with the affairs of the Zila Council.
11. ' Therefore, in order to probe into the genuineness of your application, it is requested to confirm whether you understand the allegations levelled in the application and as to whether the application has been moved by both of you, as proposer and seconder. Your confirmation, as requested above shall assist this office to proceed further in accordance with the law and procedure."
12. ' Since the session was not summoned by the respondent No,1, the respondents Nos. 2 and 3 consequently approached this Court and filed C.P. No,D-111/07 praying therein that respondent No,1 is avoiding to call the sessions as requested by respondents No,2 and 3, he be directed to fix the date of calling sessions of District Government.
13. ' Upon hearing the following consent order on 13-3-2008 was passed:-- "Respondent No,1 is ready to call the session of Zila Council, Sukkur on 17-3-2008 and before calling the session he has to issue notice to all the councillors accordingly.
14. ' Learned Asstt: A.G. And learned D.A.G. Also support the version of the Zila Naib Nazim (respondent No,1). On the statement of respondent No,1 and supported by learned Asstt: A.G. And D.A.G.
15. Petitioners along with their counsel are satisfied about the holding of sessions of Zila Council, Sukkur on 17-3-2008.
16. 'In view of the statement of respondent No,1, the petition is disposed of in above terms."
17. ' Mr. Bhajandas Tejwani, learned counsel submits that in presence of above mentioned order, dated 13-3-2008 passed in C.P. No,D-111/07, respondent No,1 summoned session of Zila Council, Sukkur on 17-3-2008 and on that date only seven members out of 65 were present. The respondent No,1 in spite of giving ruling that the motion has failed, he adjourned the session for 1-4-2008 for want of required quorum. Learned counsel submits that the act of respondent No,1 for adjourning the sessions to 1-4-2008 for want of required quorum was illegal, excess to his powers and without lawful authority. He further submits that it was "Special session" called for impeachment of Nazim at the motion of respondents Nos. 2 and 3 for which under By-law 3(b) formulated under section 42 read with section 192 of the Act, the quorum was not necessary. Since notices to all the councillors/members of Zila Council have been issued and in case the councillors failed to attend session and in such circumstances motion failed and no further action or adjournment was required under the by-laws. The action of the respondent No,1 for adjourning the motion/session was based on mala fide, partial, unjust and the same be struck down. He further reiterated that the respondent No,1 has acted illegally in adjourning the session of council to 1-4-2008 in violation of By-law mentioned above and has also erred for not declaring the motion was failed.
18. ' In support of his submissions, he relied uppn case of (PLD 2005 Karachi 384). He submits that though the said case is not applicable but the parameter laid down and observation made thereto are applicable. He also submits that in By-laws of District Council Sukkur, in definition clause, various kinds of sessions, agenda and quorum has been defined.
19. ' He specially referred by-law 3(b) about special sessions for which if special session is called quorum is not necessary.
20. ' In view of above motion moved by the respondents Nos. 2 and 3 for impeachment of Zila Nazim and session called on 17-3-2008 only 7 members attended session was sufficient to declare the session failed in spite of adjourning it for 1-4-2008. Respondent No,1 present in person submits that the notices to the councillors were issued to attend the session on 17-3-2008; he admits no request was made to the Election Commission for nomination of Returning Officer. Consequently Returning Officer was not nominated as provided under section 24(2) of the Act. Since seven members put of 65 attended the sessions, consequently session was adjourned for 1-4-2008 for want of quorum. He submits that he cannot say as to whether notices sent by his office have been received to all the members as the time was very short. No acknowledgement receipt was received from the members. On Court enquiry, he could not produce copy of any notice and mode of notices sent to the councilors of the District Council, Sukkur. He also failed to produce any request made to the Election Commission for the nomination of Returning Officer.
21. ' On the other hand, learned counsel for the interveners/members of Zila Council Sukkur (in C.M.A 426/08) submits that the motion moved by respondents Nos. 2 and 3 for recall of Zila Nazim has not failed under section 24(1) of the Act which was rightly adjourned, without compliance of mandatory provision of section 24 of the Act the motion cannot be declared as failed. The section 24 is reproduced as under:-- "Section 24 (Recall) of Zila Nazim. (1) if in the opinion of a member of the Zila Council, there is a reason to believe that the Zila Nazim is acting against the public policy or the interests of the people or is negligent or is responsible for loss of opportunity for improvement in governance and service delivery to the people within his ambit of his responsibilities. Such motion is required to be seconded by another member of the Council, give notice to move a motion in the Zila Council through the Naib Zila Nazim for recall of the Zila Nazim.
(2) On receipt of notice referred in subsection (1), the Naib Zila Nazim shall summon a session of Zila Council not earlier than three days but not later than seven days, if the Zila Council is not already in session.
(3) Where the Zila 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 Zila 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 Zila Nazim shall cease to hold office forthwith and the notification shall be issued in this behalf by the Chief Election Commission accordingly.
(5) (xxx)
(6) Where the motion fails in the Zila Council, the proposer and seconder of such motion, shall lose their seats both as (members of the Zila Council and Union Nazim, if any one of them is also a Union Nazim.
(7) The Zila Nazim shall have the right to appear before the Zila Council and address it in his defence before approval or rejection of motion referred to in subsection (1).
(8) No motion for recall of Zila Nazim shall be moved during the first six months of assumption of office of Zila Nazim nor shall such motion be repeated before the expiry of twelve months from the rejection of previous motion."
22. ' He further submits that the question before this Court is whether respondent No,1 was competent to adjourn the session of Zila Council for want of quorum in view of the no confidence motion moved against Zila Nazim held on 17.3-2008; that whether the lack of quorum could be registered as failure of the motion. To deal with the above provision of law he submits that section 24(1) of the Act provides that Zila Council which regulates its business in accordance with the By-laws made by it whereas section 24(6) of the Act provides that quorum of Zila Council shall be 51 per cent of its total members. He further submits that as, per By-laws made by Zila Council in Rule (1) (item No,3) the definition of ordinary, special and emergency session has been given. The petitioner in para. 9 of his petition has asserted that it was "special session" for recalling Zila Council from his post.
23. According to by-law the special session can be summoned either on the direction of government or at the written request of 1/4th members. For the purpose of calling special session clause 3(b) of the By-laws the quorum shall not be necessary. As far as common session is conveyed. It can be called at any time if the convener so feels for its requirement to call. As regards emergent session, session can be called to consider on point of important business/ items. In such session i,e, ordinary and emergency sessions any member can point out about lack of quorum and upon counting session can be adjourned for half an hour for want of quorum. If again after half an hour, quorum is not completed session can be adjourned for next day. He further submits that rules do not speak about recalling (impeachment) of Zila Nazim meaning thereby that Zila Nazim can only be recalled/ impeached if all the requirements laid down under section 24 of the Act are fulfilled.
24. He however, drawn attention of this Court to the By-laws item that if the motion is tabled for amendment or to resolve any item, the decision/amendment would be made upon counting in favour or against said motion provided that person against whom motion is moved he has to first give answer through discussion of such questions/motions. Learned counsel submits that same provision is also available in section 24(7) of the Act. He further submits that in case motion referred for section 24(1) of the Act is approved by 2/3 majority of the votes of total membership through secret ballot be decided and such proceedings would be conducted by returning officer nominated by the Election Commission and if motion succeeds the Zila Nazim shall seize to hold office forthwith and the notification thereto shall be issued by the Election Commission accordingly.
25. According to section 24(6) of the Act where the motion fails for Zila Council proposer and seconder of such motion shall lose their seats both as members of Zila Council and Union Council if anyone of them is also Union Nazim. Since the motion was not either approved or disapproved for want of quorum, respondent No,1 has rightly adjourned the session on 1-4-2008. There is no proof that the notices were issued and if issued for which there is no proof the same were received by the members of Zila Council. Neither respondent No,1, petitioner or respondents Nos. 2 and 3 have produced any proof of issuing of such notices and about receipt of such notices by the members of Zila Council. If the said notices have been issued to all the members they should have attended sessions on 17-3-2008. He further submits that respondents Nos. 2 and 3 have malafidely moved this motion with active connivance of Zila Nazim to save Zila Nazim from subsequent motion as in case motion fails the second motion cannot be repeated before expiry of 12 months from the rejection of previous one as provided under section 24(8) of the Act. In support of his submissions he relied upon case of Roshan Din v. (2007 CLC 844) and 1993 CLC 931.
26. ' Learned counsel for respondents Nos. 2 and 3 states that since only seven members out of 65 attended the sessions and the remaining members of Zila Council wilfully and deliberately remained absent, the motion fails and there was no justification for adjourning the session on 1-4- 2008. He further submits that it was special session and under rule 3(b) of the By-laws framed under section 2 of the Act, no quorum was required. On Court question, he was asked whether respondent No,2 aware about the consequence of section 24(6) of the Act that in case motion fails respondent No,2 being proposer and respondent No,3 being seconder shall lose their seats as members of council, learned counsel replied that respondents Nos. 2 and 3 have been unseated as the motion fails.
27. ' Learned Additional A.G. Supports the submissions of M Karara, learned counsel for the intervenors and submits that in view of provisions of section 24 of the Act, respondent No,1 has rightly adjourned the session for want of quorum. He further submits that rule 3(b) of the by-laws of Zila Council are not applicable in this case as it was not a "special session" as the same can only be called either on the direction of Government or at the request of 1/4th of the total members of Zila Council, for which a quorum is not required. Respondent No,1 has legally acted in performing his duty for adjourning the session as the required quorum was not available.
28. ' Learned Standing Counsel was in agreement with the submissions made by learned counsel for the interveners and learned Additional Advocate-General Sindh and submits that the respondent No,1 has rightly adjourned the Session of Zila Council for want of quorum: ' We have heard learned counsel for the parties, perused the material available on case file and also gone through the case-laws. In our humble view, rule 3(b) of the By-laws of Zila Council is not attracted in case of motion moved for recalling of Zila Council as such motion for impeachment does not fall under the definition of "special session" as urged by learned counsel for the petitioner.
29. The procedure is provided for impeachment or recalling of Zila Council in section 24 of the Act. In order to regulate business of the session, respondent No,1/ convenor has been assigned with the powers in para.7 of the above referred By-laws and in sub-clause (b) who is empowered to proceed with matter according to law, adjourn the session or postpone the proceedings. According to section 24(1) of the Act, any member can table motion for recalling of Zila Nazim, if he is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity for improvement in governance and service delivery to the people within the ambit of his responsibilities. Such motion is required to be seconded by another member of the Council, give notice to move a motion in the Zila Council through the Naib Zila Nazim for recall of the Zila Nazim.
30. According to section 24(2) of the Act, on receipt of notice referred in subsection (1) the Naib Zila Nazim shall summon a session of Zila Council not earlier than three days but not later than seven days, if the Zila Council is not already in session. According to subsection (3) of section 24 of the Act where the Zila 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 Zila Nazim. According to section 24(4) of the Act, 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 Zila Nazim shall cease to hold office forthwith and the notification shall be issued in this behalf by the Chief Election Commission accordingly.
31. ' In our vied' no such stage has come as the required presence of the members was not fulfilled.
32. There is no proof to show that the notices were issued to all the members of council. There is also no proof to show that same has been received by all members of Zila Council. Since Zila Council was not in session, the notices to the members of Zila Council were required to be served upon them enabling them to attend the session. Out of 65 members only 7 members attended the Sessions out of which two were proposer and seconder. No minutes of such session held on 17-3- 2008 were placed on record. It is the mandatory requirement under subsection (7) of section 24 that the Zila Nazim has A the right to address the members in his defence. Mere attending of 7 members out of 65 would not be presumed that motion for recalling Zila Nazim automatically failed. The mandatory legal requirements as provided under section 24 of Act for recalling of Zila Nazim have to be fulfilled which were lacking in the petitioner's case. In our considered view, no illegality appears in adjourning the session of Zila Council by the respondent No,1 . The petition merits no consideration, the same was dismissed in limine along with listed applications.
33. ' Above are the reasons of our short order, dated 7-4-2008.