1. ' SHABBIR AHMED, J. -- The petitioner seeks direction against the respondent No,4 not to interfere in the discharge of the function of the petitioner as officiating Nazim of Union Council No,8 (Faisal) 5- E, New Karachi.
2. ' The facts involved in the petition are that Mubashar and Mudassir were elected as Nazim and Naib Nazim of the Union Council No,8 (Faisal) 5-E, New Karachi. They resigned from their respective posts. On 1-3-2002 petitioner was elected as officiating Nazim of the said Council. On next day i.e, 2-3-2002 the Council elected respondent No,5 who was again removed on 10-8-2002 and elected Allah Rakha, the petitioner as officiating Nazim. The grievances of the petitioner are that though Town Municipal Officer addressed the Manager, Habib Bank Ltd., about the election of the officiating Nazim for operation of the Account of Union Council subsequently, the letters were withdrawn by letter, dated 4-11-2002 (Annexure "1") of the respondent No,4. The petitioner approached relevant authorities which remained futile. Hence the petition with specific allegation that the petitioner is not being allowed to discharge the function of the Nazim.
3. ' The comments were filed by respondent No,1 . It is admitted that the petitioner was elected on 1-3- 2002 as officiating Nazim on the next day viz. 2-3-2002, the Council elected respondent 5 who was again removed as petitioner was already acting as Nazirn. The respondent challenged the act of Council before Town Nazim that no-confidence motion could not have been moved in terms of section 181-A of the Sindh Local Government Ordinance, 2001 and subsequently, the respondent No,3 directed for the continuation of Zamir Siddiqui as Acting Nazim.
4. ' The controversy revolved on the interpretation of section 181-A of the Ordinance which was brought on the Statute Book on 21-2-2001 through Ordinance, VII of 2002 w.e.f, 14-2-2002. The provision of section 181-A provides that notwithstanding anything contained in sections 24, 63 and 85 an internal recall motion against the Zila Nazim, Taluka, Town Nazim or Union Nazim elected under this Ordinance, shall not be moved before 31st December, 2002. There no dispute that the Union Nazim tendered his resignation in terms of section 83 of the Ordinance. Section 156(7) provides that when the office of Union Nazim falls vacant the Members of the concerned Council shall by a majority vote elect an officiating Union Nazim from amongst its Members and the person so elected shall continue to retain his office-as a Member also. It further provides that the officiating Nazim shall not be a candidate in the bye-election held for the Union Nazim.
5. Mr. Muhammad Sarwar Khan, learned Additional Advocate- General has frankly conceded that in view of the provisions of section 181-A once the petitioner was elected as officiating Nazim in terms of section 156(7) of the Ordinance, no-confidence motion could not be brought against him before 31-12-2002, therefore, the removal of the petitioner and election of the respondent No,5 as officiating Nazim on 2-3-2002 was in violation of provisions of section 181-A of the Ordinance.
6. ' Mr. Abdul Khalil representing the respondent No,5 had tried to argue that the period of officiating Nazim is 120 days in terms of subsection (4) of section 156 as the vacancy of the Nazim is to be filled through bye-election and he also pointed out that the period of petitioner as officiating Nazim expired and the business of the. Council cannot be transacted as the Council had to meet at least once and every month. No doubt in terms of section 156(4) vacancy is to be filled within, as far as practicable, 120 days of the occurrence of vacancy as provided in subsections (2) and (3) of section 148. The election to elect the Nazim of the Council under the Ordinance is to be conducted by the Chief Election Commissioner in terms of section 150. It has been pointed out by the learned Additional Advocate-General that the Government has already moved the Chief Election Commissioner for holding such election. No doubt the vacancy is to be filled through election within the period of 120 days of the occurrence of the vacancy but the Council cannot function without the Nazim and vacuum cannot be created in the system. Therefore, on account of expiry of period, in absence of any election, the present incumbent to continue without any interruption.
7. However, the Election Commission is directed to conduct the election on the vacant seat in terms of section 150 as within the specified period under the law.
8. ' The petition is allowed in above terms. The copy of this order be sent to the Election Commission of Pakistan for filling up the vacancy.