QALANDAR ALI KHAN, J.--- Noor Muhammad and Shamzad Khan, District Nazim and District Naib Nazim, respectively, of District Council, Torghar, petitioners, invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for declaration of no confidence notice dated 12.04.2016 against them by respondents Nos.9 to 16 as illegal, void, and nullity in the eye of law.
2. The No Confidence Notice has been assailed, inter alia, on the grounds that after having been elected as District Nazim and District Naib Nazim, respectively, with majority of votes of members of the District Council, the affairs and business of the District Council Torghar were being run smoothly by them and the passing of budget by them from the District Council in the recent past bore testimony to the fact that they commanded confidence of the District Council; but through a conspiracy by the opposition members in the District Council who were also joined in their this design by members elected on PTI ticket i.e. respondents Nos.17 to 24 who, according to the petitioners, would be facing defection clause in case they joined No-Confidence bid against their own District Government, were bent upon to dislodge the sitting Government which was performing its functions smoothly and had not only succeeded in passing the budget but had also secured developmental fund to the tune of Rs.19.53 million, which shall lapse in case No Confidence Motion was carried, in the first place, and then defection clause is applied to the members elected on PTI ticket for joining No Confidence Notice of the opposition against their own government. The petitioners refuted allegations contained in the impugned No Confidence Notice, and contended that there has been a fair and equitable distribution of developmental funds amongst all the members of government and opposition alike and, likewise, funds were allocated to the female members of the council in a just and equitable manner and, as such, there has been no discrimination either in the allocation of funds or functioning of the District Government. It was further alleged by the petitioners that the proposed session to be called by respondents Nos.9 to 16 on 19.04.2016 was not sustainable at law for not having two-third majority. The petitioners also prayed for declaring respondents Nos.9 to 16 non-seated under the law for practicing illegal canvassing on respondents Nos.17 to 24, resultantly dragging them in the defection clause.
3.In response to Court notice, Mr. Muhammad Naeem Abbasi, Additional Advocate General appeared on behalf of respondents Nos.1 to 5 and 8, while Mr. Junaid Anwar Khan, Advocate, appeared on behalf of remaining respondents Nos.9 to 24. Arguments of Mr. Rashid-ul-Haq Qazi, Advocate, on behalf of the petitioners, learned Additional Advocate General on behalf of respondents Nos.1 to 5 and 8 and learned counsel for the remaining respondents heard, and record perused.
4.We may observe, at the outset, that the District Government and District Council are the recent creation of Khyber Pakhtunkhwa Local Government Act, 2013 (Khyber Pakhtunkhwa Act No. XXVIII of 2013); and one can safely presume that the No Confidence Notice against the petitioners i.e. District Nazim and District Naib Nazim may be one of the first of its kind if not the first No Confidence Motion against a sitting District Government. Anyhow, the challenge to the No Confidence by the petitioners emanates from a perception of conspiracy by the petitioners against them by the opposition members, likely to be joined by members of their own party i.e. PTI, according to their information as a result of their 'confidential inquiry'.
5.However, the main stress of the learned counsel for the petitioners was that a vote of no confidence can be passed against a Nazim and Naib Nazim in the 'prescribed manner' by two- third majority of the total number of members of the local council electing them, ascertained through open division, under section 84 of the Khyber Pakhtunkhwa Local Government Act, 2013.
The learned counsel argued that the 'prescribed manner' having not been notified so far, not only the impugned No Confidence Notice was illegal and void but the session proposed for moving the No Confidence Motion was also in contravention of the relevant law.
6.Interestingly, the petitioners have themselves placed on file the District Council Torghar (Procedure and Conduct of Business and Meetings) Bye-laws-2016, containing procedure about resolution for vote of No confidence against the Nazim; but their stance is that these are draft bye- laws and have neither been adopted nor notified so far. Apart from the fact that the Nazim District Government plays a pivotal and central role in making and amendments of bye-laws under Rule 19 of the Khyber Pakhtunkhwa District Government Rules of Business, 2015, the learned counsel for the petitioners was unable to answer a query of the Court that if the bye-laws were not yet adopted for District Council Torghar, then under what legal procedure the petitioners claimed to have passed the budget of District Council and also successfully conducting functions and business of the District Government. Assuming for the sake of -arguments that the draft bye-laws have not yet been adopted, even then the responsibility for such an omission would lie on the Nazim of District Government, who can neither take undue advantage of his own commission/ omission, nor can blow hot and cold in the same breath by relying on the bye-laws and at the same time denying the same to be carrying the effect of law/rules to govern the conduct of affairs of District Government and District Council. The only judgment referred to by the learned counsel for the petitioners (2004 YLR 1979 {Peshawar}) would be of no help to the case of the petitioners as the cited judgment was rendered in the context of the North-West Frontier Province Local Government Ordinance, 2001, providing for motion for internal recall and not a vote of no confidence, as is prescribed under the Khyber Pakhtunkhwa Local Government Act, 2013.
7. Be that as it may, the fact remains that No Confidence Motion is part of a democratic process, and a democratically elected representative of a local government should always be prepared to face No confidence and defeat the same through the democratic process instead of taking shelter under technicalities such as non-publication of the bye-laws etc. It is strange that on the one hand the petitioners claim that the opposition is not having the required two-third majority to carry the No Confidence Motion, but on the other they are shying away from the process on grounds alien to the provisions relevant for No Confidence Motion. In any case, continuing confidence of the Council would be a sine-qua-non for smooth functioning of the District Government and once that is lost, B the very foundation of the Government is shaken and it is made next to impossible for the sitting Government to function smoothly as before.
8.Likewise, the other ground that members of District Council belonging to PTI to face defection clause in case they vote in support of No Confidence Motion is pre-mature besides being far fetched at this stage when the stage of determination of their defection is yet to come in the wake of their voting or abstaining from voting in a council contrary to any direction issued by the political party to which they are members. Similarly, this is not the forum to adjudicate upon the bona fide or mala fide on the part of the petitioners in the allocation of developmental funds to the members of the District Council so as to remove the sword of No Confidence hanging on the heads of the petitioners, by misusing, rather abusing the process of Court for achievement of a political agenda, which must be fulfilled through the democratic forums created for the purpose, and not through the Courts, which are meant for adjudication of cases on merits in accordance with law and Constitution and not according to whims and wishes of political creators for furtherance of their political agenda/designs.
9. The writ petition is patently misconceived, bereft of merit and ID not sustainable on any ground whatever; hence dismissed.