ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
C.P. No. D- 533 of 2008
DATE ORDER WITH SIGNATURE OF JUDGE
Present:
Mr. Justice Maqbool Baqar,
Mr. Justice Tufail H. Ebrahim,
1. For Katcha Peshi
2. For orders on MA 2305/08.
18.02.2010.
Mr. Jhamat Jethanand, Advocate for Petitioner.
Mr. Muhammad Ali Shaikh, D.A.G for Respondents No.1 & 2.
Mr. Naimatullah Soomro, Advocate for Respondent No.7.
Mr. Allah Bachayo Soomro, Additional A.G. Sindh.
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1. Through this petition the Petitioner, who was Naib Taluka Nazim, Taluka Council Dadu, has sought the following relief:-
i) Declaration that approval of No Confidence Motion dated 20.11.2008 against the Petititoner (Annex-F) and election of Respondent No.7 as Taluka Naib Nazim (Annexure-G) having been passed illegally and malafidely are of no legal effect and that the Petitioner continues to be Taluka Naib Nazim Dadu.
ii) That permanent injunction may be issued restraining the Respondents from acting upon approval of No Confidence Motion dated 20.11.2008 (Annexure-F) and election of Respondent No.7 as Taluka Naib Nazim dated 27.11.2008 (Annex-G) and from issuing any notification or from taking any further action on the said basis.
iii) Any other relief this Honourable Court deems fit may be granted.
iv) That the costs of the petition be borne by the Respondents.
2. The brief facts of the case are that on 17.11.2008 Naib Nazim U.C-3 Dadu seconded by Shamsuddin Babar, Naib Nazim, U.C-4 Dadu, the Respondents No.5 & 6, sent a requisition for summoning a session of Taluka Council Dadu for moving a no confidence motion against the Petitioner inter alia on the ground that the Petitioner has failed to call session of the council on regular basis in pursuance whereof through a letter dated 18.11.2008, the Senior Presiding Officer, Taluka Council Dadu, the Respondent No.4, called a meeting of the Council on 20.11.2008 for moving the proposed No Confidence Motion against the Petitioner, on which date the resolution was tabled/debated and was carried almost unanimously and thereafter the Respondent No.7 was elected Naib Nazim in place of the Petitioner.
3. Mr. Jhamat Jethanand, the learned Counsel for Petitioner submits that the entire exercise from the very inception has been carried out illegally and in violation of specific provision of the Sindh Local Government Ordinance. The learned Counsel in support of his contention referred to Subsection (7) of Section 72 of the Ordinance 2001, which requires that in case a No Confidence Motion is moved against Naib Taluka Nazim, he shall have a right to address the Taluka Council in his defence. The learned Counsel submits that such right can only be exercised when the Naib Nazim has sufficient notice of the No Confidence Motion and of the session convened to table the same, whereas absolutely no notice was issued to the Petitioner, who during the relevant period was admitted in a hospital. The learned Counsel in order to show that the Petitioner in fact was hospitalized during the relevant period has referred to a medical certificate issued by Medical Officer, Taluka Hospital Kotri on 1st December 2008 (Annexure-B to the Petition) to the effect that the Petitioner has remained admitted in the said Hospital as an indoor patient during period from 14th November 2008 to 22nd November 2008. Learned Counsel then refers to the Minutes of the Meeting dated 29.11.2008 wherein Motion was carried. It is recorded in such minutes that one of the members namely Rehmatullah Lund has pointed out during the Session that the Petitioner is sick and suggested that it would be appropriate that the Session may be adjourned and that in response thereto the Respondent No.7 has claimed that notices of those proceedings were served on the Petitioner in writing however, no such material was either produced before the house nor were any relevant details or particulars mentioned.
4. In the counter affidavit filed by Respondent No.7 it is not even stated that a notice regarding the No Confidence Motion or of the relevant meeting/session was ever sent to the Petitioner. Although there is a vague allegation however, it has not been stated categorically that the medical certificate is forged or has been managed.
5. Mr. Naimatullah Soomro, the learned Counsel for Respondent No.7 has submitted that the very fact of obtaining the medical certificate by the Petitioner would show that he had the knowledge of the proceedings otherwise there was no reason for him to show that he was lying in a sick bed in a Hospital. However, we do not find the argument to be sound and reasonable as the medical certificate, contrary to the contention of Mr. Naimatullah Soomro, shows that the Petitioner was at the relevant time not only ill but was hospitalized as an indoor patient and remained there for a period of about eight (8) days.
6. The above being the position and in view of the judgment in the case of SAIFULLAH MEMON V. UNION COUNCIL No.2, QASIMABAD (2004 CLC 707) wherein it has been clearly held that issuance of notice to Naib Nazim as contemplated U/s 92(2) of the Sindh Local Government Ordinance 2001 could not be dispensed with even if Council was in session and further that no elected representative could be deprived of his office on the basis of vague allegations and without notifying him in writing, as such Naib Nazim must know allegations containing specific instances on the basis whereof such motion has been moved. It was so observed, in view of the fact that nothing on record was available in that case to confirm issuance of written notice to the Petitioner containing allegations with specific instances. It is therefore clear that the exercise impugned in the present case also has been initiated/conducted in violation of Section 72(7) of the Sindh Local Government Ordinance and cannot be lawfully sustained.
7. As regards Mr. Naimatullah Soomro’s argument that since Respondent No.7, after the No Confidence Motion against the Petitioner has been carried, has been elected as Naib Nazim in his place and as such the petition has become infructuous. Suffice it to say that since we are of the view that the Petitioner was removed from his office illegally and in violation of the Section 72(7) of the Ordinance, the office of the Taluka Naib Nazim Dadu therefore did not in law fell vacant, and there was thus no question of Respondent No.7 being elected to such office further more through the instant Petition in addition to seeking declaration against the aforesaid No Confidence Motion, the Petitioner has also sought a relief of injunction restraining the Respondents from acting upon the approval of such No Confidence Motion and election of Respondent No.7 as Taluka Naib Nazim and also from issuing any notification or from taking any further action on the basis of such purported election and therefore it would not be correct to say that the Petitioner has not sought relief against the election of Respondent No.7 and therefore, we find it appropriate to grant the relief of declaration against the election of Respondent No.7 in place of the Petitioner as apart from the fact that office did not lie vacant, such election is also otherwise illegal for the reason that admittedly no Returning Officer was nominated by the Chief Election Commissioner for the meeting during which Respondent No.7 was purportedly elected as Naib Taluka Nazim in place of the Petitioner, as required by Section 69(4) of the Sindh Local Government Ordinance 2001. We may also address here the objection raised by Mr. Allah Bachayo Soomro, Additional A.G. Sindh to the effect that since in terms of the Sindh Local Government Ordinance 2001 as recently amended through an Act of the Provincial Assembly and endorsed by the Governor Sindh, all the Local Councils shall stand dissolved on the on the date as may be notified by the Government, the petition has become infructuous and say that it hardly need any mention that the amendment itself very categorically states that the dissolution shall come into effect only on the date when such dissolution shall be notified, however, so far no such notification has been issued or placed before us we would therefore allow the petition and declare the removal of the Petitioner through the purported No Confidence Motion and subsequent election of Respondent No.7 in his place as illegal and of no effect at all
JUDGE
JUDGE