Moulana Naeem khan VS Chief Election Commissioner etc.

a)

BE REP HIGH COUH MINGORA

B (Da{-ul-Qaza) , at Swat.

WRIT PETITION # (, 7 oF 201 6, g*Tt'(+'t 7"/3 -y'.b Moulana Naeem Khan S<in of Amin Khan Resident of Matkanai, Tehsil Batkhela, Malakarid Agency

(Pettttoner)

VERSUS

Chief Election Commissioner of pakistan at Islamabad Provlncial Election Commissioner of Khyber Pakhtunkhwa at peshawr 3 Deputy Election Commissioner Malakand at Batkhela, District Malakand 4 Assistant Electlon Commissioner Malakand at Batkhela, Dlstrict Malakand' 5 Government of Khyber pakhtunkhwa through Chief Secretary at Peshawar 6 Secretary to Govt: of l(hyber pakhtunekhwa Department of Local Government, Election & Rural Development at Peshawar;

7 Secretary Council Board,'Khyber pakhtunekhwa at Peshawar 8 Tehstl Munlcipal Administration Batkhela, District Malakand through its I'ehsil Municlpal Officer at Batkhela

9.Tehsil Munlcipal OIIicer/ Secretary Tehsil Municipal Administration Batkhela Dlstri,ct Malakand at Batkhela

10.Speaker/ Presiding Officer/ Naib Nazim Tehsil l Municipal Admirrlstration/ Tehsil Council Batkhela, District Malakanrl

11.Fazal Wahid alias Lalajee Member Tehsil Council Batkhela, Dlstrict Malakand

(Respondents)

WRIT PETITION

WRIT PETITION UNDER ARTICLE 199 OF THE

CONSTITUTION OF THE ISLAIVIIC REPUBI,IC OF PAKISTAN

Re s p e cttallg S he ut eth :

pti:-[;.,11q$*il, Brief facts of the case are as unfer:- ''l.l r.{iiv 15

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JUDGMEIIT SHEEI'

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-ULQ AZA),SWAT

(Iudicial Department)

W.P. No. 673-W2016

With CMs No. 1196lVI/2016 & l2-MJ2017.

JUDGMENT

Date of hearing : 24.01.2017.

Petitioner:- ou eem Khani,) bv Mr. Sher Muhammad Khan. Advoc:ate.

Respondents:- Election Commissioner o Pakistan & otlers b Mian llussai li Attlorney Gene."al, Mr. Sabir Shah. ,l.A.G for the o cial res n,lents and Mr. Isbal. ussa ln Advocate on btzhal o the TMO

MOHAMMAD IBRAHIM KHAN. J..- Moulana Naeem Khan petitioner treiein, is irnploring the constitutional .iurisdiction'of this Oourt setting his prayer as follows:-

"Il is, lhcrefore hunbly prayei that on acceplance of this writ pctilion, oppropriate writ(s) may kindly be issued a.gainst the

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respondents whereby:

t^ The impugned resolution/no confidence proceedings dated 18.J0.2016 ma1:, kindty be set aside ,leing illegel, arbilrary. perverse, without latt,ful aulhority & void-ab-initio.

The nolificaliou daled 3L10.2016 ksued respondent # 6 and. on lhe basis of lltis

ATTEST

impugned nolificalions lelters daled E xatr Me 01.11.2016 and 07.11.?016 hsued by Pcsh:r',;.t' '1r:l ' . 'dcnch i,l:, r,;,' 1'. - :l r S,!Jl

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77t,iv respondent #. 8 may' kin(ly be declarpd iiirtit,:' nir,iui i;b1ut' ouiiiiiy,, )ii,,,riry and be canielled with immediate effeqt The respondents may kindly be directed to abstain frotm obslructing rhe petitioner in performing his dutiei and functions as Tehsil fazim, Tehsil lVlunicipat Adminislratio n Balkh ela, District Malakand.

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Any olher relief wilh thk august co,url deems i frl may also be granted in favour of pelilioner.

2 Introducing himself as permanent resident of District Malakand Khyber Pakhtunkhwa, Moulana , Naeem Khan has contested the Local Government Elections and qlected as Tehsil Nazim of Tehsil, Municipal Administration Batkhela, District Malakand.

Soon after he assumed thg charge of his office on 30th August, 2015 and on takir;g oath he performed his duties and responsibilities up to l f the utmost satisfaction of his abilities with the role of leadership to have been able to pass the budget for the fiscal year 2016-17 on29.6.2016.

As mark of successful T'ehsil Nazim serving nr"*'f[ community solving their problems with a step to deliver good 6sovernance anf senerate enough ,s:fili{i"1'l,l:l

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revenue foi the Administration/Council' It so happened that vide letter No'

Nazim/TMiVBatkhela 843-53 d:rted l0' I 0'201 6 the monthly meeting of thc council was convened fl:r 18.10.2016 and the agenda was set { for various services pertaining to .delivery and progress irr developmental works/project with the heads of the different dephrtments in the District. Ht: was astotrnded whert all of a sudden f

he being sc devoted to his office' on l8'10'2016, 'i

ti one of the member Fazal rVahid, who is

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respondent No' I I moved resolution of no confidence over him. This application was entertained without giving him prior notice and even it was not enli:'ted in the,business of the meeting. l'his act manifests bt:ing under the ,1. collusion c,f Responclents No' ! to 11 when all t

such proc,ledings u'ere carrieC out in hasty manner artd against the norrr's of procedure governing the law under the Lc.cal Government Ordinance. 2013. The meetinS; of vote of no t :

confidence. was schr:duled for 24'10'2016' he ) I\rrESpt the Ixarfiirret l [it-r]Ctl filed writ petition at )ar-ul-Qaza impugning pn.!r;,.ri.', Ir'rr" \ ' rr rt1 !

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lr-'' 4 t/D,y'/ f.-, unlawful and,,unwa[ted aborie-mentioned- I .r1,,:;.'l"xi,,.i:, i,, i .',.:.' ,u, i ,-tl', 1'-'.: ,r't t,

proceedings of the said date and in his absentia , no confidence vote was passed in the Tehsil Assembly. Hd by being aggrieved of the proceedings of no confidence mcived against him, thereby has challenged notifi c ation dated 31.10.2016 for the election of Nazim and the letters in this behalf dated 04;l 1.2016 & 07,11.2016. He is also aggrieved of the letters addressed to him for the returnrof official vehicle No. SWA-1327 and closure of his office.

3 Pri<lr to the petitioner Moulana

Naeem Khan filed writ petition No. 625-M of 2016, since by that time the notification and letters were isqued against him deglaring him t)' I f,^ functus oficio of his status as Telrsil Nazim, thus, the said v''rit petition was withdrawn with permission to file another petition to impugn the Iatest proceedings against him.

4 There are as nrany as grirunds from

(i)to(xi) on the basis of which prayer has set _:li;ffi Niwrb

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ni v lucrative seeking declaration flor setting aside the notification dated 31.10.2016 issued by Respondent No. 6 and on its basis letters dated

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04.11.2016 & 07.11.2016 issued by the Respondent No. 8 are to be declared illegal, without lawful authority, arbitrrrry and liable to immediate cancellaticn.

5 The orde,r dated 22.11.2016 handed dou'n by this court l;peaks of that notices were served upon the Rr:spondents for 28.11.2016 and the case was fixed fol' arguments on maintainability.

6 We havd, heard learned counsel for

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the petitioner, learn,:d D.A.G, Iearned A'A'G' for the official Respondents and with their assistance record wal; dealt deep into' l t!: i)- 7 It is indeed a gospel truth that by the t1 time the p.'oceedings against the petitioner were tabled to avoid no confidence n ove against him, he filed \trr.p. No. 625-M of 2r)16 with interim ,1T"Es" relief which was wilhdrawn or. 24'10'2016' By E.x.r111 that time the devekrpment of'the proceedings Pcslr.rri;, . ,. l-,1 I i,

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f t'*.4 had gorng up rttith papsing of ,lhel+9 cppfldepce vote against him and he was notified as defunct Tehsil Naziln by the corresponding notification and letters addressed in this behaif.

8 Center of arguments for declaration of the notification dated 31.10.2016 issued by the Respondent No. 6 and letters dated i 04.ll.2016 and 07.11.2016 issued by the Respondent No. 8 to be illegal,:without lawful authority and fanciful' for want of the requirement under sqction 13 Chapter V Election of the Nazim, it reads aJ under:-

13.Resolulion for, vote of ru) confidence t,subiecl lo againsl rhe Nazim: (I) provisions of the Act antl rules, a member may give nolice to the secretary in wriling the 7or resirlution of no conlidence against t Nazim.

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r. (2) The secretarY shall . enler lhe resolution in the name of the member concerned in the lkt ol business fo7 the lirst working day after the expiry of one clear day of receipt of notice and, as soon as ma!' be, circulire the notice to all lhe l\a'lE:ssrT members.

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(i)Leave, to move the resblufion, shall i Fes-\r ;;,r' t' ' -:. :'u!31' 'lIil"In' be oskad after quesliohs, if any, and hefore Naweb

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other business entered in the list ot business. is laken uP.

(4)llhen lhe resolution is'moved, lhe presidin,g ollicer muy, after considering the state of business, t'llot a day 'tr days for discussion on the resolution. i

(5)The resolution shall nttt be voled upon btfore the a:piry of three days, or lnter thm seven a'ays, from llc tlay on which ,rhe resolulion is moved in lhe council.

(6),gefore voling on the re.rolution the Nazim witl be ghrcn an opporlunily lo address the Couru:il' for clarifictlion of allegation (s), if anlt

(7)Voting on the resolutioit shall be by open division which shall he held in such manner as rhe presiding offtcer may direct'

(S)The council,shall not b1 Prorogued until th,e resolutiott k disposed off or, if leave is granted, the resolution has been voted upon,

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9 Learned counsel for, the petitioner insisted thal in order to mov e'no cohtldence against the rctitioner t:here is baliic requirement that any rnember nIaY glve inotice to the Secretary tn writing for res<>lution of no confidence against the Nazim' A.ccording to the ATT 6efE

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B errch learned cornsel, nonb Tmongst the members r n,g\ , SvlaL Pe 5har;l i 1.,1 i:rgci'"

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have ever given any notice to thp Secretary in black &. white, therebY the very first requirement has not been met out In this behalf when we see Para N o 8 of the present writ petition, the date set for, meeting 1.e. 18.10.2016 it has been admitted that one Fazal Wahid, respondent No. 11,' who has been i

for a necessary PartY to the writ

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admitting itself that no'conf,tdence application was moved by him. This applicalion is on Page No. 20 annexed with the writ petition' A look over would reveal for the reason set for that the petitioner Ivloulana Naeem Khan had lost conf,tdence over his members and it was i

designed thrrt another,member as Tehsil Nazim would be elected by the Houst:' Thereby the f)' I Y^ first ever condition fc'r move of no confidence vote has bee,n fulfilled.

10.The next imPortant and foremost condition against the petitioner was that if the resolution moved, the presidiqg officer maY STTFEf, allot a daY or dayl; for discussion on the r resohrtion, whereby the piesent petitioner would !'r E-xar' I (-l , 'J,' rt Ch lil l 1r ' 1 rr SwaL P esh:vr:rr a \,Ir,la -: 'r-r"

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have handover an ollportunity to address the r council for clarification of the allegations' If any, indeed a fair opportunity is right of every Tehsil Nazim who is facing res':lution for vote of no conlidence against him to address the council, but as asserted the petitioner was over dismayed by the resclution proceedings against him. Thereby he filed W.P' No' 625-M. of 2016 for interim relief who had since been successful in withdra,ryal of the said petir:ion and taking liberty to impugn iiny procer:dings initiated the date against him regarding his remo'ral' On was fixed when the rt:solution filr no confiience to utter he should join his colleagues/ ntembers ri

Tehsil words satis,fuing his right as srrccessful not face Nazim, but he acted as muffer and did l f^ the House wonderihg in Courts for filing t writ petition which was later withdrawn'

11.As bY n>w' the nc'tification dated 31.10.2016 has been issued with respective

Pakhtunkhwa letters and Govemment of Khyber

ATTESTE has been irrformed ol'the vote c'f no confidence

E x'tn in against tire petitioner' whjch has been p L.sh,r'r r. ili t i Wl

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successfullY Passed. There 'is no room for maintainability of tire presdirt writ petition, thus, the same is hereby dismissed {ongwith CMs'

12.It is also pertinent to mention here that the petitioner shall handover the official vehicle bearing No. SWA-I327 to the concerne,J authorities foithwith without downtime.

A nrlounc€d ;

Dt:24.01.2017 JT'DGE

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Certi{ierl te be trre C@PUUDGE

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