PLJ 2008 SC 969
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar & Mian Hamid Farooq, JJ.
Syed NASIR HUSSAIN SHAH, ZILA NAZIM DISTT. SUKKUR--Petitioner
versus
ZILA NAIB NAZIM SUKKUR and 21 others--Respondents
Civil Petition No. 409 of 2008, decided on 26.5.2008.
(On Appeal from the judgment dated 07-04-2008 passed by High Court of Sindh at Sukkar in CP No. D-151 of 2008).
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(1)(2)(3)(4)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Recall of motion--Adjournment without putting for voting--Absence of majority member--Adjournment--Challenge to--Bye-law--Effect--Statutory provisions--Held: Recall motion must be considered and put for voting in terms of Section 24(3)(4) of the Ordinance and if the motion is adjourned without putting for voting it would deemed to be pending for consideration--Bye law of Zila Council cannot override the statutory provisions and Section 24 of the Ordinance containing procedural as well as substantive provisions on the subject would prevail, therefore, there would be no legal effect of the bye-laws by virtue of which quorum for a special or urgent meeting is necessary--Further held: Motion was moved in accordance with law and proceedings of the house were not adjourned in breach of any provision of law invalidating the recall motion--Therefore, the putting off the motion to another date for consideration neither caused any prejudice to the petitioner nor it offended any law. [P. 975] A & C
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(3)(4)--Status of recall motion--Neither acquire the status of special meeting nor it would be considered an emergent meeting, rather in the normal circumstances for all intents and purpose it would be treated a general meeting--Even in special and emergent meeting unless the requirement of Ss. 24(3) and (4) of the Ordinance in respect of recall motion is fulfilled in letter and spirit, the motion is deemed to have been not put before the house for the voting.
[P. 975] B
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(1)--Discretionary jurisdiction--Concept of discretionary jurisdiction is to advance the cause of justice and Court is not supposed to exercise jurisdiction against the policy of law or in aid to injustice--Court would also restrain from interfering in the internal business of representative bodies in the discretionary jurisdiction.
[P. 976] D
Mr. Abdul Mujeeb Pirzada, Sr. ASC for Petitioner.
Raja Shafqat Abbasi, ASC; Ms. Mehreen Anwar Rafi, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents No. 1 & 5-22.
S. K. Anwar, Asstt. Chief (legal), Local Government Department, Sindh for Respondent No. 4.
Mr. Yousaf Laghari, AG Sindh.
Nemo for others Respondents.
Date of hearing: 26.5.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This petition for leave to appeal under Article 185(3) of the Constitution has been directed against the judgment dated 07.04.2008, whereby a learned Division Bench of the High Court of Sindh at Sukkur dismissed C.P.-D 151 of 2008, wherein the present petitioner, Zila Nazim Sukkur, sought a declaration that recall motion moved against him under Section 24 (1) of the Sindh Local Government Ordinance, 2001 (hereinafter called the Ordinance) was adjourned without considering in the meeting called in this behalf for want of quorum, would be deemed to have been rejected and failed.
2. The facts in small compass leading to the filing of present petition are that Syed Nasir Hussain Shah (petitioner herein) Zila Nazim of District Sukkur was given notice of recall by Mst. Mehran (Respondent No. 2) and Mst. Jaidul (Respondent No. 3) both members of Zila Council through Naib Zila Nazim on 26.03.2008 under Section 24(1) of Sindh Local Government Ordinance, 2001, on the basis of general allegation that Zila Nazim was acting against the public interest and policy adverse to the interest of good governance. In reply, the petitioner raised objection that notice was vague for want of specific allegation, therefore, Respondent Nos. 2 and 3 gave a fresh notice containing the specific allegation with the request to Naib Nazim to call the meeting of Zila Council for considering the recall motion. The Naib Zila Nazim vide letter dated 05.03.2008 pointing out defect in the recall notice sought certain clarifications from the mover and seconder whereupon they filed a Constitution Petition Bearing No. D-111/2008 in High Court of Sindh, Bench at Sukkur seeking direction to the Naib Nazim to perform his duty in accordance with the requirement of law. The High Court vide order dated 13.03.2008, disposed of the petition with observation as under:--
"Respondent No. 1 is ready to call the session of Zila Council, Sukkur on 17.03.2008 and before calling the session he has to issue notice to all the councilors accordingly.
Learned Asstt. A.G. and learned DAG also support the version of the Zila Naib Nazim (Respondent No. 1). On the statement of Respondent No. 1 and supported by learned Asstt. A.G. and DAG, petitioners along with their counsel are satisfied about the holding of session of Zila Council, Sukkur on 17.3.2008.
In view of the statement of Respondent No. 1, the petition is disposed of in above terms".
In compliance to the above order of High Court, Respondent No. 1 conveyed the meeting of the House for 17.3.2008 which was adjourned for 1.4.2008 for want of quorum. The petitioner filed CP No. D-151 of 2008 in High Court of Sindh Bench at Sukkur seeking declaration that the recall motion would be deemed to have been considered and failed in terms of Section 24(6) of the Ordinance with the consequence provided in Section 24 (8) ibid and on dismissal of the writ petition, he has filed the present petition.
3. Mr. Abdul Mujeeb Pirzada, learned Sr. ASC, counsel for the petitioner, has contended that under the scheme of law a No Confidence Motion once moved against Zila Nazim and placed before the House in the meeting called for this purpose, cannot be adjourned for want of quorum as the requirement of quorum for such meeting is not necessary under the bye-laws of Zila council and recall motion even if was not as such considered for voting would be deemed to have been considered and rejected. Learned counsel submitted that a member who intends to move recall motion under Section 24(1) of the Ordinance as provided therein must have reasons to believe that Zila Nazim is acting against the public policy and interest or is negligent or is responsible for loss of opportunity for improvement in governance and service delivery to the people and such notice must be seconded by another member of the Council, therefore unless the opinion of the mover is found subjective and based on sound reasons, the notice of recall would be of no legal consequence. Learned counsel argued that in the present case no action was taken on first notice due to its vagueness whereupon the second notice given by the same mover and seconder was placed before the House in the meeting called for this purpose under the direction of Court, therefore, notwithstanding the fulfillment of requirements of sub-sections (3) and (4) of Section 24 of the Ordinance, the recall motion could not be adjourned and would be deemed to have been considered and rejected.
The next contention of the learned counsel was that under Section 24(2) of the Ordinance, it is mandatory for the Naib Nazim to call the meeting of Zila council not earlier than 3 days and not later than 7 days of the date of notice if Zila Council is not already in session and if Zila Council is in session, recall notice referred to in sub-section (1) ibid shall be taken up for deliberation on the next day of its receipt by the Naib Zila Nazim as is provided under sub-section (3) of Section 24 of the Ordinance and except the general meeting, the requirement of quorum is not necessary for a special or emergent meeting under the bye-laws of Zila Council, framed under Section 42 of the Ordinance to run the business of House, therefore, notwithstanding the quorum and compliance of the provisions of Section 24(4) relating to the procedure of secret ballot and nomination of Returning Officer by the Chief Election Commissioner, the recall motion after placing before the House for consideration in a special or emergent meeting called in this behalf cannot be adjourned to another date even if was not put for voting and would be deemed to have been rejected and failed with the consequences provided in Section 24(6) & (8) of the Ordinance. The learned counsel concluded that the High Court without proper appreciation of the legal position in the factual background wrongly held that it was a general meeting for which quorum was essential and was not a special or emergent meeting in which the proceedings may not continue without quorum. Learned counsel emphasized that the wisdom behind the law is to provide protection to Zila Nazim from political victimization or unnecessary use of recall motion for any other reasons, therefore, once recall motion is tabled in a special or emergent meeting, the same cannot be adjourned for want of quorum and even if it is adjourned without discussion or deliberation and voting would be deemed to have been considered and failed.
4. Learned counsel for the respondent has opposed this petition with the contention that in the normal circumstances a meeting called in consequence to the notice given under Section 24(1) of the Ordinance, is a general meeting and non compliance of provisions of Section 24(2) of the Ordinance or calling of such meeting for a specific date under the direction of the Court may not change the character of meeting and convert it into a special or emergent meeting. Learned counsel submitted that no business including proceedings on recall motion can be carried by the House in the general meeting if the requirement of quorum is not fulfilled and even in special or emergent meeting, the House may or may not conduct its business without quorum. Be that as it may, the success or failure of recall motion is subject to the mandatory process of deliberation and voting in terms of Section 24(3) and (4) of the Ordinance without completion of which, the motion is deemed to have not crossed the stage of notice. Learned counsel pointed out that petitioner did not attend the meeting and majority of the members were also not present in the meeting for want of notice, therefore, notwithstanding the question as to whether the meeting was general, special or emergent, the House could not competently consider the motion for voting and was bound to adjourn it to another date.
5. The Zila Naib Nazim convened the meeting of Zila Council, Sukkur under the direction of High Court to consider recall motion moved against Zila Nazim under Section 24(1) of the Ordinance but Zila Nazim did not attend the meeting. This is also admitted that 58 Members out of total 65 members of the House have not attended the meeting and there was noting on record to show that absentee members had notice of the date of meeting, therefore, a strong presumption would be raised that meeting was called without proper notice to the members. The recall motion is placed before the House for deliberation under Section 24(3) for the purpose of voting under Section 24(4) of the Ordinance and motion may or may not be succeeded. In case of failure of motion Section 24(6) and (8) would become operative.
6. Section 24 of the Sindh Local Government Ordinance, 2001, provides a complete procedure for moving recall motion against Zila Nazim, as under :--
"Recall of a Zila Nazim.--(1) If in the opinion of a member of the Zila Council, there is a reason to believe that the Zila Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity for improvement in governance and service delivery to the people within the ambit of his responsibilities, he may, seconded by another member of the Council, give notice to move a motion in the Zila Council through the Naib Zila Nazim for recall of the Zila Nazim.
(2) On receipt of notice referred to in sub-section (1), the Naib Zila Nazim shall summon a session of Zila Council not earlier than three days but not later than seven day, if the Zila Council is not already in session.
(3) Where the Zila Council is already in session, the motion referred to in sub-section (1) shall be taken up for deliberations on the next day form its receipt by the Naib Zila Nazim;
(4) Where the motion referred to in sub-section (1) is approved by two-third majority of the votes of the total membership of the Council, through a secret ballot to be conducted by the Returning Officer nominated by the Chief Election Commissioner, the Zila Nazim shall cease to hold office forthwith and the notification shall be issued in this behalf by the Chief Election Commissioner accordingly.
(5) ***************************************
(6) Whether the motion fails in the Zila Council, the proposer and seconder of such motion shall lose their seats both as [members of the Zila Council and Union Nazim, if any one of them is also a Union Nazim].
(7) The Zila Nazim shall have the right to appear before the Zila Council and address it in his defence before approval or rejection of motion referred to in sub-section.
(8) No motion for recall of Zila Nazim shall be moved during the first six months of assumption of office of Zila Nazim nor shall such motion be repeated before the expiry of twelve months from the rejection of previous motion."
The plain reading of Section 24 of the Ordinance would show that this is mandatory requirement of law that recall motion must be considered and put for voting in terms of sub-section (3) and (4) of Section 24 of the Ordinance and if the motion is adjourned without putting for voting, it would be deemed to be pending for consideration. The bye-law of Zila Council referred by the learned counsel framed under Section 42 of the Ordinance for the purpose of regulating the business of House cannot override the statutory provisions and Section 24 of the Ordinance containing procedural as well as substantive provisions on the subject would prevail, therefore, there would be no legal effect of the bye-laws by virtue of which quorum for a special or urgent meeting is not necessary. The motion was moved in accordance with law and proceedings of the House were not adjourned in breach of any provision of law invalidating the recall motion, therefore, putting off the motion to another date for consideration, neither caused any prejudice to the petitioner nor it offended any law and consequently, the petitioner without pointing out any illegality in the proceedings, could not maintain a constitution petition before the High Court. This may be seen that even in terms of bye-laws, the meeting in question would neither acquire the status of special meeting nor it would be considered an emergent meeting, rather in the normal circumstances for all intents and purposes, it would be treated a general meeting. Be that as it may, even in special and emergent meeting unless the requirement of Section 24(3) and (4) of the Ordinance in respect of recall motion is fulfilled in letter and spirit, the motion is deemed to have been not put before the House for the voting.
7. The recall motion can be placed before the House in any meeting in the manner provided in law for voting by way of secret ballot and failure of motion would essentially result in the consequence provided in sub-sections (6) and (8) of Section 24 of the Ordinance. Zila Nazim, has right to address the House and proceedings on recall motion in his absence may have legal complications and further in the absence of vast majority of members, it would not be legal and proper to proceed with recall motion, therefore, in the circumstances noted above, there was no option except to adjourn recall motion without voting. This may be pointed out that out of 65 members of the House only 7 members were present in the meeting, therefore, either it was general meeting or not, the motion was to be necessarily adjourned to meet the requirement of law. There is no cavil to the proposition that the legislature with a view to protect Zila Nazim from frequent recall motions for political or any other reason provided safeguard in Section 24(6) and (8) of the Ordinance but the provisions of Section 24(1) to (4) being not a mere formality of law cannot be defeated on technical grounds. The petitioner unsuccessfully challenged the action in the constitution petition on the ground of procedural technicalities and in the circumstances the interference of High Court or this Court in the matter in discretionary jurisdiction would amount to defeat and frustrate the policy of law and public interest on the basis of technicalities of law. The concept of discretionary jurisdiction is to advance the cause of justice and Court is not supposed to exercise this jurisdiction against the policy of law or in aid of injustice. The Court should also restrain from interfering in the internal business of representative bodies in the discretionary jurisdiction.
8. Law certainly provides protection to Zila Nazim against successive recall motions but at the same time law has taken care of the proper functioning of Zila Council and if Zila Nazim is not discharging his duty in the public interest, he may face recall motion. Be that as it may, in the present case no adverse action has been taken against Zila Nazim in recall motion and same having been adjourned was still pending for consideration, therefore, the questions raised in the constitution petition as well as in this petition are of purely academic in nature at this stage.
9. In the light of foregoing reasons, we without taking any exception to the impugned judgment of the High Court, dismiss this petition, leave is refused.
(W.I.B.) Leave refused.
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar & Mian Hamid Farooq, JJ.
Syed NASIR HUSSAIN SHAH, ZILA NAZIM DISTT. SUKKUR--Petitioner
versus
ZILA NAIB NAZIM SUKKUR and 21 others--Respondents
Civil Petition No. 409 of 2008, decided on 26.5.2008.
(On Appeal from the judgment dated 07-04-2008 passed by High Court of Sindh at Sukkar in CP No. D-151 of 2008).
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(1)(2)(3)(4)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Recall of motion--Adjournment without putting for voting--Absence of majority member--Adjournment--Challenge to--Bye-law--Effect--Statutory provisions--Held: Recall motion must be considered and put for voting in terms of Section 24(3)(4) of the Ordinance and if the motion is adjourned without putting for voting it would deemed to be pending for consideration--Bye law of Zila Council cannot override the statutory provisions and Section 24 of the Ordinance containing procedural as well as substantive provisions on the subject would prevail, therefore, there would be no legal effect of the bye-laws by virtue of which quorum for a special or urgent meeting is necessary--Further held: Motion was moved in accordance with law and proceedings of the house were not adjourned in breach of any provision of law invalidating the recall motion--Therefore, the putting off the motion to another date for consideration neither caused any prejudice to the petitioner nor it offended any law. [P. 975] A & C
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(3)(4)--Status of recall motion--Neither acquire the status of special meeting nor it would be considered an emergent meeting, rather in the normal circumstances for all intents and purpose it would be treated a general meeting--Even in special and emergent meeting unless the requirement of Ss. 24(3) and (4) of the Ordinance in respect of recall motion is fulfilled in letter and spirit, the motion is deemed to have been not put before the house for the voting.
[P. 975] B
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(1)--Discretionary jurisdiction--Concept of discretionary jurisdiction is to advance the cause of justice and Court is not supposed to exercise jurisdiction against the policy of law or in aid to injustice--Court would also restrain from interfering in the internal business of representative bodies in the discretionary jurisdiction.
[P. 976] D
Mr. Abdul Mujeeb Pirzada, Sr. ASC for Petitioner.
Raja Shafqat Abbasi, ASC; Ms. Mehreen Anwar Rafi, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents No. 1 & 5-22.
S. K. Anwar, Asstt. Chief (legal), Local Government Department, Sindh for Respondent No. 4.
Mr. Yousaf Laghari, AG Sindh.
Nemo for others Respondents.
Date of hearing: 26.5.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This petition for leave to appeal under Article 185(3) of the Constitution has been directed against the judgment dated 07.04.2008, whereby a learned Division Bench of the High Court of Sindh at Sukkur dismissed C.P.-D 151 of 2008, wherein the present petitioner, Zila Nazim Sukkur, sought a declaration that recall motion moved against him under Section 24 (1) of the Sindh Local Government Ordinance, 2001 (hereinafter called the Ordinance) was adjourned without considering in the meeting called in this behalf for want of quorum, would be deemed to have been rejected and failed.
2. The facts in small compass leading to the filing of present petition are that Syed Nasir Hussain Shah (petitioner herein) Zila Nazim of District Sukkur was given notice of recall by Mst. Mehran (Respondent No. 2) and Mst. Jaidul (Respondent No. 3) both members of Zila Council through Naib Zila Nazim on 26.03.2008 under Section 24(1) of Sindh Local Government Ordinance, 2001, on the basis of general allegation that Zila Nazim was acting against the public interest and policy adverse to the interest of good governance. In reply, the petitioner raised objection that notice was vague for want of specific allegation, therefore, Respondent Nos. 2 and 3 gave a fresh notice containing the specific allegation with the request to Naib Nazim to call the meeting of Zila Council for considering the recall motion. The Naib Zila Nazim vide letter dated 05.03.2008 pointing out defect in the recall notice sought certain clarifications from the mover and seconder whereupon they filed a Constitution Petition Bearing No. D-111/2008 in High Court of Sindh, Bench at Sukkur seeking direction to the Naib Nazim to perform his duty in accordance with the requirement of law. The High Court vide order dated 13.03.2008, disposed of the petition with observation as under:--
"Respondent No. 1 is ready to call the session of Zila Council, Sukkur on 17.03.2008 and before calling the session he has to issue notice to all the councilors accordingly.
Learned Asstt. A.G. and learned DAG also support the version of the Zila Naib Nazim (Respondent No. 1). On the statement of Respondent No. 1 and supported by learned Asstt. A.G. and DAG, petitioners along with their counsel are satisfied about the holding of session of Zila Council, Sukkur on 17.3.2008.
In view of the statement of Respondent No. 1, the petition is disposed of in above terms".
In compliance to the above order of High Court, Respondent No. 1 conveyed the meeting of the House for 17.3.2008 which was adjourned for 1.4.2008 for want of quorum. The petitioner filed CP No. D-151 of 2008 in High Court of Sindh Bench at Sukkur seeking declaration that the recall motion would be deemed to have been considered and failed in terms of Section 24(6) of the Ordinance with the consequence provided in Section 24 (8) ibid and on dismissal of the writ petition, he has filed the present petition.
3. Mr. Abdul Mujeeb Pirzada, learned Sr. ASC, counsel for the petitioner, has contended that under the scheme of law a No Confidence Motion once moved against Zila Nazim and placed before the House in the meeting called for this purpose, cannot be adjourned for want of quorum as the requirement of quorum for such meeting is not necessary under the bye-laws of Zila council and recall motion even if was not as such considered for voting would be deemed to have been considered and rejected. Learned counsel submitted that a member who intends to move recall motion under Section 24(1) of the Ordinance as provided therein must have reasons to believe that Zila Nazim is acting against the public policy and interest or is negligent or is responsible for loss of opportunity for improvement in governance and service delivery to the people and such notice must be seconded by another member of the Council, therefore unless the opinion of the mover is found subjective and based on sound reasons, the notice of recall would be of no legal consequence. Learned counsel argued that in the present case no action was taken on first notice due to its vagueness whereupon the second notice given by the same mover and seconder was placed before the House in the meeting called for this purpose under the direction of Court, therefore, notwithstanding the fulfillment of requirements of sub-sections (3) and (4) of Section 24 of the Ordinance, the recall motion could not be adjourned and would be deemed to have been considered and rejected.
The next contention of the learned counsel was that under Section 24(2) of the Ordinance, it is mandatory for the Naib Nazim to call the meeting of Zila council not earlier than 3 days and not later than 7 days of the date of notice if Zila Council is not already in session and if Zila Council is in session, recall notice referred to in sub-section (1) ibid shall be taken up for deliberation on the next day of its receipt by the Naib Zila Nazim as is provided under sub-section (3) of Section 24 of the Ordinance and except the general meeting, the requirement of quorum is not necessary for a special or emergent meeting under the bye-laws of Zila Council, framed under Section 42 of the Ordinance to run the business of House, therefore, notwithstanding the quorum and compliance of the provisions of Section 24(4) relating to the procedure of secret ballot and nomination of Returning Officer by the Chief Election Commissioner, the recall motion after placing before the House for consideration in a special or emergent meeting called in this behalf cannot be adjourned to another date even if was not put for voting and would be deemed to have been rejected and failed with the consequences provided in Section 24(6) & (8) of the Ordinance. The learned counsel concluded that the High Court without proper appreciation of the legal position in the factual background wrongly held that it was a general meeting for which quorum was essential and was not a special or emergent meeting in which the proceedings may not continue without quorum. Learned counsel emphasized that the wisdom behind the law is to provide protection to Zila Nazim from political victimization or unnecessary use of recall motion for any other reasons, therefore, once recall motion is tabled in a special or emergent meeting, the same cannot be adjourned for want of quorum and even if it is adjourned without discussion or deliberation and voting would be deemed to have been considered and failed.
4. Learned counsel for the respondent has opposed this petition with the contention that in the normal circumstances a meeting called in consequence to the notice given under Section 24(1) of the Ordinance, is a general meeting and non compliance of provisions of Section 24(2) of the Ordinance or calling of such meeting for a specific date under the direction of the Court may not change the character of meeting and convert it into a special or emergent meeting. Learned counsel submitted that no business including proceedings on recall motion can be carried by the House in the general meeting if the requirement of quorum is not fulfilled and even in special or emergent meeting, the House may or may not conduct its business without quorum. Be that as it may, the success or failure of recall motion is subject to the mandatory process of deliberation and voting in terms of Section 24(3) and (4) of the Ordinance without completion of which, the motion is deemed to have not crossed the stage of notice. Learned counsel pointed out that petitioner did not attend the meeting and majority of the members were also not present in the meeting for want of notice, therefore, notwithstanding the question as to whether the meeting was general, special or emergent, the House could not competently consider the motion for voting and was bound to adjourn it to another date.
5. The Zila Naib Nazim convened the meeting of Zila Council, Sukkur under the direction of High Court to consider recall motion moved against Zila Nazim under Section 24(1) of the Ordinance but Zila Nazim did not attend the meeting. This is also admitted that 58 Members out of total 65 members of the House have not attended the meeting and there was noting on record to show that absentee members had notice of the date of meeting, therefore, a strong presumption would be raised that meeting was called without proper notice to the members. The recall motion is placed before the House for deliberation under Section 24(3) for the purpose of voting under Section 24(4) of the Ordinance and motion may or may not be succeeded. In case of failure of motion Section 24(6) and (8) would become operative.
6. Section 24 of the Sindh Local Government Ordinance, 2001, provides a complete procedure for moving recall motion against Zila Nazim, as under :--
"Recall of a Zila Nazim.--(1) If in the opinion of a member of the Zila Council, there is a reason to believe that the Zila Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity for improvement in governance and service delivery to the people within the ambit of his responsibilities, he may, seconded by another member of the Council, give notice to move a motion in the Zila Council through the Naib Zila Nazim for recall of the Zila Nazim.
(2) On receipt of notice referred to in sub-section (1), the Naib Zila Nazim shall summon a session of Zila Council not earlier than three days but not later than seven day, if the Zila Council is not already in session.
(3) Where the Zila Council is already in session, the motion referred to in sub-section (1) shall be taken up for deliberations on the next day form its receipt by the Naib Zila Nazim;
(4) Where the motion referred to in sub-section (1) is approved by two-third majority of the votes of the total membership of the Council, through a secret ballot to be conducted by the Returning Officer nominated by the Chief Election Commissioner, the Zila Nazim shall cease to hold office forthwith and the notification shall be issued in this behalf by the Chief Election Commissioner accordingly.
(5) ***************************************
(6) Whether the motion fails in the Zila Council, the proposer and seconder of such motion shall lose their seats both as [members of the Zila Council and Union Nazim, if any one of them is also a Union Nazim].
(7) The Zila Nazim shall have the right to appear before the Zila Council and address it in his defence before approval or rejection of motion referred to in sub-section.
(8) No motion for recall of Zila Nazim shall be moved during the first six months of assumption of office of Zila Nazim nor shall such motion be repeated before the expiry of twelve months from the rejection of previous motion."
The plain reading of Section 24 of the Ordinance would show that this is mandatory requirement of law that recall motion must be considered and put for voting in terms of sub-section (3) and (4) of Section 24 of the Ordinance and if the motion is adjourned without putting for voting, it would be deemed to be pending for consideration. The bye-law of Zila Council referred by the learned counsel framed under Section 42 of the Ordinance for the purpose of regulating the business of House cannot override the statutory provisions and Section 24 of the Ordinance containing procedural as well as substantive provisions on the subject would prevail, therefore, there would be no legal effect of the bye-laws by virtue of which quorum for a special or urgent meeting is not necessary. The motion was moved in accordance with law and proceedings of the House were not adjourned in breach of any provision of law invalidating the recall motion, therefore, putting off the motion to another date for consideration, neither caused any prejudice to the petitioner nor it offended any law and consequently, the petitioner without pointing out any illegality in the proceedings, could not maintain a constitution petition before the High Court. This may be seen that even in terms of bye-laws, the meeting in question would neither acquire the status of special meeting nor it would be considered an emergent meeting, rather in the normal circumstances for all intents and purposes, it would be treated a general meeting. Be that as it may, even in special and emergent meeting unless the requirement of Section 24(3) and (4) of the Ordinance in respect of recall motion is fulfilled in letter and spirit, the motion is deemed to have been not put before the House for the voting.
7. The recall motion can be placed before the House in any meeting in the manner provided in law for voting by way of secret ballot and failure of motion would essentially result in the consequence provided in sub-sections (6) and (8) of Section 24 of the Ordinance. Zila Nazim, has right to address the House and proceedings on recall motion in his absence may have legal complications and further in the absence of vast majority of members, it would not be legal and proper to proceed with recall motion, therefore, in the circumstances noted above, there was no option except to adjourn recall motion without voting. This may be pointed out that out of 65 members of the House only 7 members were present in the meeting, therefore, either it was general meeting or not, the motion was to be necessarily adjourned to meet the requirement of law. There is no cavil to the proposition that the legislature with a view to protect Zila Nazim from frequent recall motions for political or any other reason provided safeguard in Section 24(6) and (8) of the Ordinance but the provisions of Section 24(1) to (4) being not a mere formality of law cannot be defeated on technical grounds. The petitioner unsuccessfully challenged the action in the constitution petition on the ground of procedural technicalities and in the circumstances the interference of High Court or this Court in the matter in discretionary jurisdiction would amount to defeat and frustrate the policy of law and public interest on the basis of technicalities of law. The concept of discretionary jurisdiction is to advance the cause of justice and Court is not supposed to exercise this jurisdiction against the policy of law or in aid of injustice. The Court should also restrain from interfering in the internal business of representative bodies in the discretionary jurisdiction.
8. Law certainly provides protection to Zila Nazim against successive recall motions but at the same time law has taken care of the proper functioning of Zila Council and if Zila Nazim is not discharging his duty in the public interest, he may face recall motion. Be that as it may, in the present case no adverse action has been taken against Zila Nazim in recall motion and same having been adjourned was still pending for consideration, therefore, the questions raised in the constitution petition as well as in this petition are of purely academic in nature at this stage.
9. In the light of foregoing reasons, we without taking any exception to the impugned judgment of the High Court, dismiss this petition, leave is refused.
(W.I.B.) Leave refused.
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