1. MOHAMMAD IBRAHIM KHAN, J.---Moulana Naeem Khan petitioner herein, is imploring the constitutional jurisdiction of this Court setting his prayer as follows:- "It is, therefore humbly prayed that on acceptance of this writ petition, appropriate writ(s) may kindly be issued against the respondents whereby: The impugned resolution/no confidence proceedings dated 18.10.2016 may kindly be set aside being illegal, arbitrary perverse, without lawful authority and void ab initio.
2. The notification dated 31.10.2016 issued by respondent # 6 and on the basis of this impugned notifications letters dated 04.11.2016 and 07.11.2016 issued by respondent # 8 may kindly be declared illegal, without lawful authority, arbitrary and be cancelled with immediate effect.
3. The respondents may kindly be directed to abstain from obstructing the petitioner in performing his duties and functions as Tehsil Nazim, Tehsil Municipal Administration Batkhela, District Malakand.
4. Any other relief which this august court deems fit may also be granted in favour of petitioner.
5. 2.Introducing himself as permanent resident of District Malakand Khyber Pakhtunkhwa, Moulana Naeem Khan has contested the Local Government Elections and elected as Tehsil Nazim of Tehsil Municipal Administration Batkhela, District Malakand. Soon after he assumed the charge of his office on 30th August, 2015 and on taking oath he performed his duties and responsibilities up to the utmost satisfaction of his abilities with the role of leadership to have been able to pass the budget for the fiscal year 2016-17 on 29.6.2016. As mark of successful Tehsil Nazim serving community solving their problems with a step to deliver good governance and generate enough revenue for the Administration/Council. It so happened that vide letter No. Nazim/TMA/Batkhela 843-53 dated 10.10.2016 the monthly meeting of the council was convened for 18.10.2016 and the agenda was set for various services pertaining to delivery and progress in developmental works/project with the heads of the different departments in the District. He was astounded when all of a sudden he being so devoted to his office on 18.10.2016, one of the member Fazal Wahid, who is respondent No.11 moved resolution of no confidence over him. This application was entertained without giving him prior notice and even it was not enlisted in the business of the meeting. This act manifests being under the collusion of Respondents Nos.8 to 11 when all such proceedings were carried out in hasty manner and against the norms of procedure governing the law under the Local Government Ordinance, 2013. The meeting of vote of no confidence was scheduled for 24.10.2016, he filed writ petition at Dar-ul-Qaza impugning the unlawful and unwanted above-mentioned proceedings of the said date and in his absentia no confidence vote was passed in the Tehsil Assembly. He by being aggrieved of the proceedings of no confidence moved against him, thereby has challenged notification dated 31.10.2016 for the election of Nazim and the letters in this behalf dated 04.11.2016 and 07.11.2016. He is also aggrieved of the letters addressed to him for the return of official vehicle No.SWA-1327 and closure of his office.
6. 3.Prior to, the petitioner Moulana Naeem Khan filed Writ Petition No.625-M of 2016, since by that time the notification and letters were issued against him declaring him functus officio of his status as Tehsil Nazim, thus, the said writ petition was withdrawn with permission to file another petition to impugn the latest proceedings against him.
7. 4.There are as many as grounds from (i) to (xi) on the basis of which prayer has set lucrative seeking declaration for setting aside the notification dated 31.10.2016 issued by Respondent No. 6 and on its basis letters dated 04.11.2016 and 07.11.2016 issued by the Respondent No. 8 are to be declared illegal, without lawful authority, arbitrary and liable to immediate cancellation.
8. 5.The order dated 22.11.2016 handed down by this court speaks of that notices were served upon the Respondents for 28.11.2016 and the case was fixed for arguments on maintainability.
9. 6.We have heard learned counsel for the petitioner, learned D.A.G, learned A.A.G. for the official Respondents and with their assistance record was dealt deep into.
10. 7.It is indeed a gospel truth that by the time the proceedings against the petitioner were tabled to avoid no confidence move against him, he filed W.P. No.625-M of 2016 with interim relief which was withdrawn on 24.10.2016. By that time the development of the proceedings had come up with passing of the no confidence vote against him and he was notified as defunct Tehsil Nazim by the corresponding notification and letters addressed in this behalf.
11. 8.Center of arguments for declaration of the notification dated 31.10.2016 issued by the Respondent No.6 and letters dated 04.11.2016 and 07.11.2016 issued by the Respondent No.8 to be illegal, without lawful authority and fanciful for want of the requirement under section 13 Chapter V Election of the Nazim, it reads as under:-
13. Resolution for vote of no confidence against the Nazim: (1)Subject to provisions of the Act and rules, a member may give notice to the secretary in writing for resolution of no confidence against the Nazim.
12. (2)The secretary shall enter the resolution in the name of he member concerned in the list of business for the first working day after the expiry of one clear day of receipt of notice and, as soon as may be, circulate the notice to all the members.
13. (3)Leave, to move the resolution, shall be asked after questions, if any, and before other business entered in the list of business is taken up.
14. (4)When the resolution is moved, the presiding officer may, after considering the state of business, allot a day or days for discussion on the revolution.
15. (5)The resolution shall not be voted upon before the expiry of three days, or later than seven days, from the day on which the resolution is moved in the council.
16. (6)Before voting on the resolution the Nazim will be given an opportunity to address the Council for clarification of allegation(s), if any.
17. (7)Voting on the resolution shall be by open division which shall be held in such manner as the presiding officer may direct.
18. (8)The council, shall not be prorogued until the resolution is disposed off or, if leave is granted, the resolution has been voted upon.
19. 9.Learned counsel for the petitioner insisted that in order to move no confidence against the petitioner there is basic requirement that any member may give notice to the Secretary in writing .for resolution of no confidence against the Nazim. According to the learned counsel, none amongst the members have ever given any notice to the Secretary in black and white, thereby the very first requirement has not been met out. In this behalf when we see Para No.8 of the present writ petition, the date set for meeting i.e. 18.10.2016 it has been admitted that one Fazal Wahid, respondent No.11, who has been thought for a necessary party to the writ admitting itself that no confidence application was moved by him. This application is on Page No.20 annexed with the writ petition. A look over would reveal for the reason set for that the petitioner Moulana Naeem Khan had lost confidence over his members and it was designed that another member as Tehsil Nazim would be elected by the A House. Thereby the first ever condition for move of no confidence vote has been fulfilled.
20. 10.The next important and foremost condition against the petitioner was that if the resolution moved, the presiding officer may allot a day or days for discussion on the resolution, whereby the present petitioner would have handover an opportunity to address the council for clarification of the allegations. If any, indeed a fair opportunity is right of every Tehsil Nazim who is facing resolution for vote of no confidence against him to address the council, but as asserted the petitioner was over dismayed by the resolution proceedings against him. Thereby he filed W.P.
21. No.625-M of 2016 for interim relief who had since been successful in withdrawal of the said petition and taking liberty to impugn any proceedings initiated against him regarding his removal. On the date when the resolution for no confidence was fixed he should join his colleagues/members to utter words satisfying his right as successful Tehsil Nazim, but he acted as muffer and did not face the House wondering in Courts for filing writ petition which was later withdrawn.
22. 11.As by now the notification dated 31.10.2016 has been issued with respective letters and Government of Khyber Pakhtunkhwa has been informed of the vote of no confidence against the petitioner, which has been successfully passed. There is no room for maintainability of the present writ petition, thus, the same is hereby dismissed along with CMs.
23. 12.It is also pertinent to mention here that the petitioner shall D handover the official vehicle bearing No.SWA-1327 to the concerned authorities forthwith without downtime.