SYED ARSHAD ALI, J.---Through this single Judgment we intend to dispose of Writ Petitions No,356- A/2017 and No,730-A/2017 as in the above writ petition. a common question of law is involved. In Writ Petition No,356-A/2017, the petitioner Noor Muhammad seeks constitutional jurisdiction of this.
Court praying that; "It is therefore prayed that impugned decision/order of the Local Government Commission Khyber Pakhtunkhwa dated 9.1,2017 as notified by Director General Local Government vide the letter No,DG
(LLC) Council/Torghar/2016 ha r/2016 may please be declared as without lawful authority and of no legal effect along with the proceedings of No confidence Vote/Motion on which the impugned order is based."
2. Brief, but relevant, facts of the case, as narrated in the petition are that pursuant to the election of Local Government held in the year 2015, the petitioner Noor Muhammad was elected as District Nazim whereas Shamzad Khan, petitioner in Writ Petition No,730 of 2017 was elected as Naib Nazim, District Council/District Government Torghar. Dissatisfied with the performance of both, District Nazim and Naib Nazim, on 12.4.2016 eight members of the District Council moved a motion of no confidence against the petitioners. On the said motion, notices were issued to all the members of the District Council, being the electoral college of the District Nazim and Naib Nazim for 19,4.2016.
The petitioners challenged the said motion of no confidence before this Court through Writ Petition No,372-A/2016, however, the said writ petition was dismissed on 13.6.2016.
3. After dismissal of the writ petition, the aforesaid eight members of the District Council, approached the Secretary District Council, Torghar for resuming the proceedings of motion of no confidence. Secretary District Council, Torghar issued notices to all the members of District Council for 27.6.2016 for discussion on no confidence motion. On 27.6.2016 meeting of the District Council was convened and Hassan Ahmad (member District Council) was appointed as Presiding Officer and the proceedings were adjourned for 04.7.2016 enabling the petitioners to defend the motion.
On 04.7.2016 during the proceedings, an objection was raised that the Presiding Officer has no authority to cast his vote. After threadbare discussion on the legal point, the Presiding Officer over ruled the objections and ruled that that he would exercise his right to vote in the motion of no- confidence and further stated that he was casting his vote in favour of motion of no-confidence.
Accordingly, motion of no confidence succeeded and out of 23 total numbers of members, 16 members had cast their votes in favour of the motion.
The Secretary District Council conveyed the proceedings of the motion to the Deputy Commissioner, Torghar vide letter dated 04.07.2016, wherein it was requested that the matter may be referred to Local Government Commission ("Commission") seeking its clarification/ guidance regarding the order of Presiding Officer overruling the objection on his right to cast his vote.
The aforesaid issue was placed before the Commission in its 23rd meeting scheduled for 04.11.2016 as item No 4, The Commission after perusing the entire record upheld the no-confidence motion.
Later, the issue was again placed before the Commission in its 26th meeting as the learned Advocate General and the worthy Secretary Law had provided their unanimous opinion that the Presiding Officer could not cast his vote in the impugned motion of no confidence. Finally, the matter was put to voting and the majority passed the following decision;- "the vote of no confidence against Nazim Torghar is valid and Mr. Noor Muhammad Khan Nazim District Government Torghar is no more the Nazim of District Government Torghar."
The Commission's decision was notified through letter dated 20.1.2017. Later, the District Election Commissioner, Torghar through letter dated 08-06-2017 requested for de-notification of Naib Nazim, hence this writ petition.
4. Comments were called from the respondents which were submitted accordingly, wherein they refuted the claim of petitioners.
5. Learned counsel appearing on behalf of petitioners stated that the position of a Presiding Officer in an elected body is required to remain impartial and his impartial position demands to exercise his right to vote only when dead lock occurs due to tie between competing candidates for the coveted position. In the impugned proceedings, if vote of the Presiding Officer is subtracted from total number of votes cast in favour of the motion, the motion of no confidence would obviously fail as it will make total members supporting motion of no-confidence 15 whereas required two-third majority, in terms of section 84 of Khyber Pakhtunkhwa Local Government Act, 2013 ("2013 Act") would be 16 members. They have further stated that although the 2013 Act and rules made thereunder are silent about this fact, however, the internationally accepted norms are that the Chair, presiding over the meeting of elected body, casts his vote only in case of equality. They have also relied upon Article 55 of the Constitution, wherein it has been specifically mentioned that all decisions of the National Assembly shall be taken by majority of the members present and voting, but the person presiding shall not vote except in the case of equality of votes. They have also relied upon the, meaning of "cast of vote" as given in Black Laws Dictionary as "a deciding vote cast by the chair of deliberative assembly when the votes are tied". They have further developed their arguments by saying that chair can only cast his/her vote when there is tie amongst the competing candidates. Lastly, they have urged that the petitioners were not provided proper opportunities at the time of motion of no-confidence and in the proceedings before Commission.
6. On the other hand, learned counsel for respondents has submitted that the petitioners were given opportunity of hearing and there is no provision in the 2013 Act either prohibiting the Presiding Officer from casting his vote in motion of no-confidence or restricting him to cast his vote only in case of tie or equality of votes.
7. We have gone through the available record carefully and considered the submissions made by learned counsel for the parties.
8. The 2013 Act per se does not provide for the election of District Nazim and Naib Nazim. Section 80 of the 2013 Act only envisages that a member, a Nazim and Naib Nazim shall, before taking his seat, make and subscribe to an oath in such form as may be specified. However, under exhaustive rules framed under the 2013 Act which not only provides for election of Nazim and Naib Nazim but also envisages that the members of local council constitute Electoral College for the election of Nazim and Naib Nazim. In this regard rule 66 of Khyber Pakhtunkhwa Local Councils (Conduct of Elections)
Rules, 2014 ("Rules") is relevant, which is reproduced as under:- "Election of Nazim. The District Returning Officer will nominate Returning Officers to convene and preside over the first meeting of Tehsil Council, Town Council or, as the case may be, District Council to elect Nazim from amongst members of the respective Local Councils."
9. However, the 2013 Act envisages mechanism and consequences of motion of no-confidence under section 84, which reads as:- "84. Vote of no-confidence. ---A Nazim and Naib-Nazim, shall cease to hold office if a vote of no- confidence is passed against him in the prescribed manner by two third majority of the total number of members of the local council electing him ascertained through open division; Provided that
(a) A motion of no-confidence shall not be moved before the expiry of six months of his assumption of office as Nazim and Naib Nazim; and
(b) Where a motion of no-confidence against a Nazim and Naib-Nazim has been moved and has failed to secure the requisite majority of votes in its favour at the meeting, no similar motion shall be moved against him before the expiry of six months from the date of such motion was moved."
10. Ordinarily the house/local council is being presided over by Naib Nazim, however, since the motion of no confidence was against both Nazim and Naib Nazim, hence, the Presiding Officer was to be nominated from other members of the house/council. In this regard the Model byelaws, the District Council (Procedure and Conduct of Business and Meetings) (Model) Bylaws, 2015 ("By- laws") were approved in the impugned meeting of the District Counsel. These Bylaws define the term "Presiding Officer" to mean Naib Nazim of the Council or any member who is presiding at that sitting, Under Bylaws 10 a panel of chairperson and temporary chairperson are nominated to preside over meeting in absence of Naib Nazim. The powers and functions of Presiding Officer are also provided in the By-laws 9, which reads as under:- "Powers and functions of the Presiding Officer---(1) The presiding officer shall take the chair at every, sitting of the council at hour to which the council is adjourned at the last sitting or at the hoar at which the council has been summoned to meet.
(2) The Presiding Officer;
(a) call the sitting to order;
(b) preserve order and decorum;
(c) have all powers necessary for the purpose of enforcing his decisions;
(d) in case of disturbance or disorder in the galleries, have the power to cause them to be cleared.
(e) decide all points of Order, (f have the powers to withdraw his consent already communicated for the presentation of a privilege motion, an adjournment motion or a resolution if some fresh material is furnished to him on account of which he is satisfied that the withdrawal of the consent already granted was necessary to be revoked."
11. Whereas the procedure for motion of no confidence has been provided under By-laws 13 which reads as under:- "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.
(2)The secretary shall enter the resolution in the name of the 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 circulated the notice to all the members.
(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.
(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 resolution.
(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.
(6)Before voting on the resolution the Nazim will be given an opportunity to address the council for clarification of allegation(s), if any.
(7)Voting on the resolution shall be by open division which shall be held in such manner as the presiding officer may direct.
(8)The council shall not be prorogued until the resolution is disposed off or if leave is granted the resolution has been voted upon."
Bylaws 13(6) provides that the Nazim be given an opportunity to address the council for clarification of allegations.
12. The plain reading of section 84 of 2013 Act, in unambiguous language holds that two-third majority of the total number of members of the local council electing him, are required for success of no confidence motion against Nazim or Naib Nazim. Thus, the Presiding Officer, being a member of local council can cast his vote in motion of no confidence. Bare reading of section 84 of the 2013 Act in juxtaposition with By-laws 9 to 13 does not give any impression that the Presiding Officer has to cast his vote in case of a tie nor does it restrain him from voting. The arguments of learned counsel for petitioners that the Presiding Officer/Chair can cast his/her vote only in case of a tie can neither be approved nor endorsed by us as it will amount to reading something in statute which has not been provided by it.
13.Trichotomy is the basic structure of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"). It provides distinct functions of the three organs of the state i.e Legislature, Executive and Judicature. Legislation is the function and object of Legislature and this function cannot be encroached upon by the Judicature. If section 84 of the 2013 Act does not bar the Presiding Officer from casting his/her vote then the said restriction can neither be read in the Section nor can it be borrowed from any other law/statute. Maxwell in his book "On the Interpretation of Statutes", 11th edition, at page 311 has provided the basic principal of cassus omissus in the following words; "While interpreting a statute, it was presumed that the legislature choose its words carefully, therefore, if a word or phrase added somewhere, such addition was not to be deemed redundant; conversely, if a word or phrase had been left out somewhere, such omission was not to be deemed inconsequential."
In Muhammad Ismail v. The State (ND 1969 SC 241) the august Supreme Court has endorsed this principle's as:- "Jurisdiction of superior Courts can only be taken away by express words and not otherwise--- Cassus omissus---Words used in statute clear and unambiguous---Cannot be given any meaning other than that which they carry, however drastic or inconvenient the result may be--- Not permissible for Court to rely on oral declaration made at the Bar revealing what the intention of law-maker was---Court, nevertheless, in order to avoid doing injustice, can give effect to true and patent intention of law-maker by supplying omission.
Maxwell in his book on the Interpretation of Statutes, 11th Edition at page 122, has pointed out "so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts" that unless very explicit words are used in the statute itself in that behalf such an intention would not normally be imputed to the Legislature. It is no doubt true that in construing a statute the Courts are normally reluctant to attribute to the Legislature an intention of introducing a radical or sudden change of policy unless they are compelled to do so by the express and unequivocal manifestation of the intention of the Legislature, but at the same time it has to be pointed out that there is always a strong presumption that the Legislature does not make mistakes.
"If blunders are found in legislation, they must be corrected by the Legislature, and it is not the function of the Court to repair them" Illalsbury's Laws of England, 3rd Edition, Volume 36, page 390].
"As a general rule a Court of law is not authorized to supply a cassus omissus, or to alter the language of a statute for the purpose of supplying a meaning, if the language used in the statute is incapable of one, even though they may be of opinion that a mistake has been made in drawing the Act" [Craeis on Statute Law, 6th Edition, page 520]. The purpose of construction or interpretation of a statutory provision is no doubt to ascertain the true intention of the Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those words are so clear and unmistakable that they cannot be given any meaning other than that which they can in their ordinary grammatical sense, then the Courts are not concerned with the consequences of the interpretation however drastic or inconvenient the result, for, the, function is interpretation, not legislation, In construing an enactment, passed by a legislative authority, it is also not permissible for the Courts to rely upon oral declarations of the intention of the law-giver, made at the Bar of the Court, if the language used in the legislative enactment is not reasonably capable of bearing such a meaning. But what is permissible is this that "where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence", because, "where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used" [Maxwell, 11th Edition, page 221]. Even though, as a general rule, a Court of law is not authorized to supply a cassus omissus or to alter the language of a statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law-maker to supply the omission in order to avoid doing a manifest injustice."
Similarly, in Zahid lqbal v. Hafiz Muhammad Adnan and others (2016 SCM R 430), the august Supreme Court of Pakistan has rejected the plea that disqualification provided under Articles 62 and 63 of the Constitution is to be read by implication in the Punjab Local Government Act, 2013 by holding that:- "It is not the function of the Court to read into any provision and or words that are not part of the statute, unless imported or made applicable specifically as has been done under the Sindh Local Government Act, 2013, wherein section 36(j) clearly imports disqualification "under any law" it reads " he is for the time being disqualified or chosen as a member of the Provincial Assembly under any law for the time being in force." It is neither the duty nor the function of the Court to read into or delete any word and or provisions in an enactment, unless specifically adopted or imported by reference. Courts do not legislate but interpret statute according to their ordinary and plain meaning and do not import or supply word or provisions from "any other law", no matter how laudable and desirable it may appear to be. In this view of the matter, disqualification prescribed under "any law" or even in "The Constitution" unless as noted above are specifically made applicable or adopted by reference, specially penal and or castigatory provisions contained in "any law" cannot be imported, read into or inflicted on a person who put forth his candidature to be elected as a Member or to hold an elected office of Punjab Local Government but his qualification and or disqualification for any office of the Punjab Local Government is to be adjudged strictly under the provisions of "the Act, 2013" only."
14.Even otherwise, if the arguments of learned counsel for the petitioners is accepted it will amount to disenfranchising the member who is presiding over the meeting in a motion of no confidence.
15.The arguments of learned counsel for the petitioners that the petitioners have not been given any opportunity of hearing, suffice it to mention that pursuant to the judgment of this Court dated 13-06-2016, a meeting of the District Council was convened on 27.6.2016 and in the said meeting it was specifically stated that the meeting shall be held on 04.7.2016 enabling the petitioners to defend the motion. Notice of the motion was circulated to all members of the District Council, however, it is not available on the record that whether petitioners had attended the meeting on 04.7.2016, wherein motion of no confidence against the petitioners was approved by 2/3rd majority.
However, it is evident from the minutes of the meeting that 19 members out of 23 members were present. Hence, the petitioners were given opportunities to defend themselves which they did not avail. Even otherwise they had the knowledge of the proceedings, they challenged the motion of no confidence through Writ Petition No,372-A/2016 and after the success of motion they also pleaded their case before the Commission. If the petitioners willfully absented themselves from the meeting it cannot be assumed that they were not provided opportunities of hearing.
16.As far as arguments of learned counsel for petitioners that the petitioners were not given sufficient opportunities to present themselves before the Commission, and as such the Commission approving motion of no confidence is also illegal and void, is of no consequence. The Commission has no mandate to approve or disapprove the no confidence motion. The Commission is established under section 54 of the 2013 Act whereas its functions have been provided under section 55 of the Act ibid. "Functions of the Local Government Commission.--
(1) Functions of the local Government Commission shall be to: (a)Conduct annual and special inspections of local governments and submit reports to the Governments;
(b) Conduct, on its own initiative or, whenever, so directed by the Chief Minister or, whenever, a reference is made by a Nazim, district council, an inquiry by itself or through district government into any matter concerning a local government;
(c) Resolve disputes between local governments;
(d) Submit to the Chief Minister an annual report on the over-all performance of district governments and tehsils municipal administration; and
(e) Take cognizance of violations of laws and rules by a local government.
(2) Where the Local Government Commission is of the opinion that suspension of a Nazim, Naib Nazim or a member of a local council is necessary for the purposes of a fair enquiry or preventing him from continuing with any unlawful activity during an enquiry, it may recommend to the Chief Minister for suspension of such Nazim, Naib Nazim or a member of a council, as the case may be, for a maximum period of thirty days.
(3) Where, on an enquiry, the Local Government Commission holds a Nazim, Naib-Nazim, or a member of a council guilty or misconduct, it shall recommend appropriate action, including his removal, to the Chief Minister.
(4) The Local Government Commission shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:
(a) summoning and enforcing attendance of any person and examining him on Oath;
(b) compelling production of documents;
(c) receiving evidence on affidavits; and
(d) issuing commission for the examination of witnesses."
17. The bare reading of section 55 in juxtaposition of section 84 of the 2013 Act does not give any impression that the proceedings of motion of no confidence can be called in question before the Commission nor does the Commission has any mandate to reject or set-aside the outcome of the motion of no confidence. The District Council is an independent body established under the 2013 Act, however, its functions and affairs are subject to direction of the Chief Minister as provided under section 58 of the 2013 Act and its certain affairs can be inquired in by Commission, however, the act of election of Nazim and Naib Nazim and the proceedings of motion of no confidence cannot be questioned before the Commission under section 55 of the 2013 Act. Hence, the proceedings of Commission in this regard are of no consequences.
18. In the light of what has been discussed above, these petitions, bereft of any merits, are hereby dismissed.