Khawaja AHMAD HASSAN vs GOVERNMENT OF PUNJAB and others

ORDER

' MUNIR A. SHEIKH, J.---This petition is directed against the judgment dated 22-9-2003 of the Lahore High Court, Lahore passed in Constitution Petition No, 11358 of 2003.

2. The petitioner was elected as Nazim of Data Gunj Bukhsh Town. A no-confidence motion was moved against him in the said Town Council, which according to the respondent was voted upon and passed by the majority of the members of the said Council. According to section 63 of the Local Government Ordinance, 2001, it was required to be referred to the members of the Union Council in the said Town which according to learned counsel for petitioner are 693 in numbers for voting. It also provides that the Nazim would cease to be the Nazim after it was passed by the majority of the total number of members. It is an admitted factual position that the members of the Union Councils have not yet taken up the said recall motion for voting. On 18th September, 2003, Punjab Local Government (Recall Motions Against Nazim and Naib-Nazim) Rules, 2003 were promulgated which confer discretionary powers on the Provincial Election Authority to restrain a Nazim to perform any of his functions during pendency of said recall motion. A notification was issued by Provincial Election Authority on 23rd September, 2003 whereby the petition was restrained from performing any of his functions as Nazim of the said Town till the conduct of the voting on the recall motion by the members of the Union Council. As a consequential measure, the Provincial Government on the same date i.e,23rd September, 2003 issued a notification authorizing the District Coordination Officer, City District Government, Lahore to perform the function of Nazim till further orders. The validity of the Punjab Local Government (Recall Motions Against Nazim and Naib-Nazim) Rules, 2003 in particular rule 14(1) and (2) on the ground that the same were ultra vires of the provisions of section 63 of the Punjab Local Government Ordinance, 2001 and exercise of power under the said rules were challenged before the High Court in the Constitution petition which has been decided through the impugned judgment by holding that:-

(a) The said rules were not ultra vires of the provisions of section 63 of the Punjab Local Government Ordinance, 2001, therefore, were valid.

(b) Power could be exercised under the said rules by Provincial Election Authority of restraining the Nazim from performing any of his functions as such after the publication of said rules through notification.

3. The main burden of arguments presented by learned counsel for petitioner in support of this petition, inter alia, was that under section 63 of the Punjab Local Government Ordinance, 2001, Town Nazim who is an elected person, does not cease to be Nazim unless a recall motion was voted upon and passed by majority of total members of the Union Council as such confirmation of discretionary powers on the Provincial Election Authority of restraining him from performing any of his functions as such was ultra vires of the said substantive provisions of the Ordinance. He further argued that discretionary powers under rule 14(1) and (2) of the Punjab Local Government (Recall Motions Against Nazim and Naib-Nazim) Rules, 2003 by the Provincial Election Authority, even if held to be available, the same was exercised meChanically without application of mind. Learned counsel also challenged the vires of some provisions of section 63 of the Ordinance, 2000 and proceedings of the recall motion conducted by the Town Council by arguing that neither the proposor nor the secondor supported the recall motion in the house as such it should be deemed to have not been moved.

4. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court learned counsel for the respondents (2-3), who were the movers and secondors of the recall motion in the Tehsil Council, frankly conceded that Question No,1 raised by the learned counsel for petitioner is important question of law and public importance, therefore, in principle, he would not oppose the grant of leave to appeal to settle the same by an authoritative pronouncement by this Court but objected to grant of interim relief prayed for by the petitioner of suspension of the order of Provincial Election Authority restraining the petitioner from performingfunction as Nazim and consequential appointment of Deputy Coordination Officer to perform the function of Town Nazim.

5. Leave is granted to consider inter alia:--

(a) Whether rule 14(1) and (2) of the Punjab Local Government (Recall Motions Against Nazim and Naib-Nazim) Rules, 2003 are ultra vires of the provisions of section 63 of the Punjab Local Government Ordinance, 2000?

(b) If the said Rule i.e, 14(1) and (2) are found to be not ultra vires of the provisions of section 63, whether the discretionary power vested in the Provincial Election Authority in this case has been exercised on the application of proper mind, keeping in view the principles laid down by the superior Courts regulating the exercise of such powers?

6. As to interim relief, after hearing learned counsel for theparties, we are inclined to pass the order as prayed for the order passed by the Provincial Election Authority, has the effect of depriving the petitioner of exercising his powers and performing functions under the Punjab Local Government Ordinance as Nazim under the said provisions, he does not cease to be Nazim, till the passing of the recall motion by majority of the total number of members of the Union Council.

7. Operation of the order/notification dated 23rd September, 2003 issued by the Provincial Election Authority, restraining the petitioner from performing any of his functions as Nazim of Data Gunj BakhshTown and consequential notification issued by theProvincial Government of the same date of appointment of Deputy Co-ordination Officer to perform functions of Nazim of the said Town shall remain suspended till the disposal of appeal.