MUHAMMAD BASHIR KHAN JEHANGIRI, J.--This petition under Article 199 of the Constitution has been brought by Muhammad Ramzan, petitioner, seeking to have it declared that the Office Order No.880-87/A-22 dated 17-5-1989 of respondent No.2 is without lawful authority and of no legal effect.
2. The petitioner, Muhammad Ramzan, was Chairman, Union Council, Muryali, Tehsil and District D.I.
Khan. On 24-4-1989, the Divisional Director, Local Bodies, D.I. Khan Division, D.I. Khan (respondent No.2), received a requisition for convening of special meeting of the Local Council to consider the motion of no-confidence against the petitioner. In consequence respondent No.2 by order dated 24-4-1989 directed that the special meeting should be convened at 9.00 A.M. On 2-5-1989 at Town Hall, Municipal Committee, D.I. Khan. The meeting, he further ordered, would be presided over by the Vice-Chairman of the said Local Council. In consequence a formal notice of meeting was served on 24-4-1989 upon the petitioner and other concerned authorities. In order to thwart the convening of the special meeting to consider the motion of no-confidence against him, the petitioner filed a declaratory suit in the Court of Senior Civil Judge, D.I. Khan against respondent No.2, and three others that the impugned notice dated 24-4-1989 was void and ineffective against the right of the petitioner and by way of consequential relief, a decree for perpetual injunction was also sought so as to restrain respondent No.1 from acting upon the impugned notice dated 24-4- 1989. Alongwith the plaint an application for temporary injunction restraining respondent No.2 herein from convening the Special meeting to consider the vote of no-confidence against the petitioner was also made. It appears that the learned Civil Judge, First Class, D.I. Khan who was seized of the case issued an ad interim injunction but later on by his order dated 17-5-1989 vacated the temporary injunction for lack of jurisdiction of the Civil Court to entertain the suit of the petitioner. After the vacation of the ad interim injunction aforesaid respondent No.2 issued subsequent order dated 17-5-1989 directing the convening of special meeting of the Local Council to consider the motion of no-- confidence on 25-5-1989 at 10.00 A.M. Alain at the Town Hall, Municipal Committee, D.I. Khan. This meeting was also directed to be presided over by the Vice- Chairman of the Local Council. The grievance of the petitioner is that Union Council, Muryali comprised six members including the petitioner who was elected, as its Chairman. Due to the death of Qureshi Itnam Bakhsh and acceptance of the resignation tendered by Shah Jehan another member on 8-4-1989 two seats out of six seats had fallen vacant and there remained only four members of the Union Council including the petitioner. The vires of impugned notice have been challenged by the petitioner on the following grounds: (a)That respondent No.2 could not proceed with the motion of no---confidence against the petitioner unless the opposite group had made an application to the Chairman of the Union Council; (b)that before convening special meeting respondent No.2 was legally required to have notified the election for the two vacancies and respondent No.2 having ignored to hold the selection for the two vacancies the quorum for vote of no-confidence against the Chairman being incomplete, the motion of no-confidence against the petitioner could not be considered; and (c)that the learned Civil Judge, First Class, D.I. Khan had erred to hold that he lacked jurisdiction in the annulment of the impugned proceedings of no-confidence motion.
3. A Civil Miscellaneous petition was also filed by petitioner wherein it was further prayed that operation of the impugned notice be suspended and the holding of the special meeting be stayed.
Matter came up before a Division Bench of this Court on 24-6-1989. The operation of the impugned notice convening the meeting of Union Council for consideration of no-confidence motion against the petitioner was suspended pending decision of the petition It was, further directed that if the vacancies are filled before the disposal of petition then there would be no bar for holding the special meeting to consider the motion for no-confidence.
4. In the meantime Shah Jehan respondent moved Civil Miscellaneous No.30-D/1989 for impleadment as a respondent, in that, he had never resigned from the membership of the Union Council and was, therefore, a necessary any to this writ petition.
5. The comments were furnished by respondent No.2 alone. While admitting the death of Qureshi Imam Bakhsh a member of the Union Council was averred in the comments that notwithstanding the minutes of the meeting the Union Council dated 9-7-1989 accepting the so-called resignation of SI of Jehan a member of the Union Council, the application from him had been received wherein he had categorically denied to have resigned from membership of the Union Council. The vires of the impugned notice dated 17- 5 1989 was defended.
6. We have heard Mr. Sanaullah Khan Gandapur, the learned counsel for the petitioner, S..Zafar Abbas Zaidi, the learned counsel for the answer. g respondents 3 to 5 and the learned Assistant Advocate-General for respondents 1 and 2.
7. The main ground urged by the learned counsel for the petitioner is that due to resignation of Shah Jehan and the death of Qureshi Imam Bakhsh two members of the Union Council, quorum as required under sub-rule (4) of Rule 3 of the North-West Frontier Province Local Councils Chairmen and Chairmen (Vote of No-Confidence) Rules, 1980, herein after called as Rules, fell short of two- third of the members of the Local Council. According to the leaded counsel due to the quorum thus falling short of two-third of the members of the Union Council, no special meeting could be legally convened for consideration of the motion of no-confidence against the petitioner.
8. The contention of the learned counsel for the petitioner that quorum for convening the special meeting fell short of two-third of the members of the Union Council as laid down under sub-rule
(4) of Rule 3 of the Rules is untenable, In this connection it has been stated at the Bar today that election to the seat which A had fallen vacant due to the death of Qureshi Imam Bakhsh has been held aid a member has been duly elected. On the other hand, the genuineness of the resignation has not only been seriously challenged by the learned member bit it was being solemnly enquired into by the Assistant Director, Local Government, D.I. Khan Division. On the legal plane, its validity is also questionable for it is implicit in the wording of section 39 of the Ordinance, that every election, resignation or removal of a Chairman, Vice-Chairman or a member or the vacation of office by Chairman, Vice-Chairman or a member shall be notified (underlining is mine). In the instant case, besides a serious challenge to the genuineness of the resignation, the requisite notification had not been issued by the competent authority. It would, therefore, be of no consequence qua requirement of quorum within the contemplation of sub-rule (4) of rule 3 of the I Rules. In this context, S. Zafar Abbas Zaidi, the learned counsel for the answering respondents made reference to Tahir Beg v. Kausar Ali (PLD 1976 1 Supreme Court 504). That was also a case of questionable resignation of a Member of Provincial Assembly of Punjab. In this case a report was lodged by a cousin of the appellant. It was stated in the report that the appellant had been kidnapped by armed men and had been taken to the house of the respondent and had been made to sign the resignation from the membership of the Assembly "on pistol point in the house of a P.P.P. Dignitary".
The Speaker who had been informed by telegram about this background seemed to have not taken any action thereon and forwarded the same to the C.E.C. In continuance of his earlier communication. Their Lordships of the Supreme Court, pointing out the solemn and grave nature of the transaction and calling for inclusion of appropriate rules in the Rules of procedure of the Assembly observed: "But absence of any such rule in the instant case, would not make any difference for it is implicit in the wording of Article 64 (of the Constitution) that resignation addressed to the Speaker shall take effect, if he is satisfied as to its genuineness or validity. A fortiori case where the genuineness or validity of resignation is challenged or ex facie is doubtful, the Speaker shall be under a duty to enquire into the matter, before he allows the resignation to take effect. This is notwithstanding that resignation takes effect automatically once it reaches the Speaker for it is implicit in the provision that resignation is genuine and voluntary and intended to reach the Speaker."
9. Applying this principle to the instant case, we have no hesitation to hold that resignation tendered under section 39 of the Ordinance does not take effect automatically. On the other hand, it would be effectual only if it is genuine and voluntary and was in fact intended to take effect and had been duly notified in the prescribed manner. We are also conscious of the absence of any provision in the Ordinance or the Rules for conducting inquiry into genuineness and voluntariness B or otherwise of such a resignation. Nonetheless as held by their Lordships of the Supreme Court in Tahir Beg's case cited above, the absence of any such rule would not make any difference for it is implicit in the wording of sections 35 and 39 of the Ordinance that resignation tendered and notified shall take effect, if the authority who is to notify it is satisfied as to its genuineness and validity. In the case before us, it would be for the competent authority to determine the genuineness of the resignation allegedly tendered by Shah Jehan, but we have no hesitation to hold that having not been notified within the contemplation of section 39 ibid, it would have no adverse effect on the question of quorum as laid down in sub-rule (4) of rule 3 of the Rules.
10. Additionally the petitioner assails the order dated the 17th of May, 1989, of the learned Civil Judge, First Class, Dera Ismail Khan, whereby he had under rule 10 of Order VII C.P.C. Returned the plaint of the petitioner holding that the suit was barred under section 160-A of the N: W.F.P. Local Government Ordinance, 1979. The petitioner did not deem it essential to file an appeal or I revision.
In a recent case of Muhammad Zahoor v. Lal Muhammad (1988 SCMR 322) it was reiterated that any matter finally decided in revision could not be challenged in writ petition, except, of course, where the decision was either void or coram non judice. From the perusal of the impugned order of the learned Civil Judge, we have formed the opinion that it was neither void nor coram non judice.
Return of plaint was within the competence of the trial Court as per Order VII rule 10, C.P.C. It will be realised that the view of the trial Judge did not offend against any provision of law particularly that of section 160-A of the Ordinance.
11. For the reasons stated above, we find no substance in the writ petition and the same is dismissed with costs.