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Judgment Sheet in the Peshawar High Court, Peshawar Judicial Department

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Judgment Sheet in the Peshawar High Court, Peshawar Judicial Department 1 JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT Writ Petition No.1802 -P/2016 JUDGMENT Date of hearing: 24 th May, 2016 Petitioner(Himayatullah Mayar: By: Mr.Khalid Mahmood, District Nazim Mardan etc) advocate, Respondent(Chief Minister : By: Mr.Abdul Latif Yousafzai, KPK & 5 others) Advocate General KPK. ___________ NISAR HUSSAIN KHAN, J .- Petitioners through instant constitutional petition seek declaration of Notification No.DG(LG)RD/LGC/2016, dated 6.5.2016, vide which they were suspended for 30 days for not passing the budget by simple majority of total memberships of District Council Mardan, as illegal, malafide, based on political victimization and colourable exercise of power and as such passed without lawful authority. 2. It is averred in the petition that petitioners are District Nazim and Naib Nazim of District Council Mardan, Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan) 2 respectively, who were elected in the Local Government Elections on the tickets of two different political parties; that after assumption of their office, salary budget was unanimously passed on 22.10.2015 by the District Council Mardan and in continuation, Annual Development Programme (ADP) Budget was passed on 10.12.2015 by simple majority of 59 members out of total membership of 112. It was followed by another salary and non-salary budget of District Council Staff which was unanimously approved by District Council on 15.1.2016; that proceedings of approval of ADP budget of 2015-16 was subsequently approved on 25.1.2016 by majority members of the District Council; that in the light of approved budget, majority of the members from treasury and opposition benches, submitted their proposed schemes of projects through identification forms; that District Council approved all the guidelines in the light of ADP Budget in its meeting held on 3.5.2016. By recapitulating all these proceedings, petitioners averred that the impugned notification was issued for political victimization and ulterior motives, in colourable exercise of authority. To substantiate their contention, proceedings of the meetings and attendance roll of the meeting of salary budget Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan) 3 and ADP budget were also annexed alongwith record culminating into issuance of impugned notification. 3. The learned Advocate General submitted comments on behalf of the respondents. Though they forfeited their right of submission of reply/comments on the very first day when the instant petition was heard in motion. However, during the course of arguments on 12.5.2016, learned AG referred different documents which were not made part of the record, hence he was allowed to bring the same on the file through proper C.M. Accordingly comments alongwith complete record has been submitted wherein stance of the petitioners has emphatically been repudiated. 4. Learned counsel for petitioners argued that ADP budget was passed with simple majority of total membership of the District Council, Mardan; that even if respondent’s stance is accepted, it may not be a ground for suspension of the petitioners; that minutes of the meeting were maintained by the secretary of the Council which are public documents, supporting the stance of the petitioners. He maintained that malafide of the respondents is palpable from Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan) 4 the simple fact that both Nazim and Naib Nazim of District Council Mardan have simultaneously been suspended which is against the mandate of law, hence the impugned Notification is liable to be struck down. 5. As against that learned Advocate General while responding to the arguments of the learned counsel for petitioners, has taken us through the detail comments and the record appended therewith. He raised objection that Chief Minister is not answerable to any court in terms of Article 248 of the Constitution of Islamic Republic of Pakistan, 1973, who has wrongly been impleaded in the instant petition as respondent No.1, hence instant petition is defective and is liable to be dismissed. He by referring to the record submitted that 40 members and Secretary of the District Council Mardan , moved complaint about irregularities committed in the approval of ADP budget which was not passed by a simple majority, hence is in violation of section-35 (b) of Act-XXVIII. Therefore, three members committee was constituted who reported after exhaustive enquiry that the ADP budget was not passed with simple majority because 5 out of 60 members have disowned their signatures on attendance roll which were Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan) 5 to be referred to the hand writing expert for verification, so it reduced the strength of consenting members to 55, which do not constitute simple majority. On the basis of said enquiry report and recommendation for suspension of petitioners, the impugned Notification was accordingly issued by the Local Government Commission, which is its sole discretion; that since prima facie case against petitioners, was made out in the light of enquiry report, so they were rightly suspended, hence instant petition is liable to dismissed. 6. We have heard learned counsel for petitioners and learned Advocate General KPK and have gone through the record with their valuable assistance. 7. So far as objection of learned Advocate General KPK relating to immunity available to the Chief Minister in terms of Article 248 of the Constitution is concerned, suffice it to observe that Chief Minister is not the only respondent in the petition. Rather there are five other public functionaries in panel of respondents whose action and commissions have been called in question. The impugned Notification has not been issued by the Chief Minister. It was Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan) 6 issued by the Local Government Commission, the respondent No.2. Even if Chief Minister is deleted from the panel of respondents, instant petition still may proceed. There is no cavil about the established law that Code of Civil Procedure 1908 is applicable to all the proceedings, relating to the Constitutional petitions filed under Article 199 of the Constitution. Order-1 Rule 9 CPC stipulates in unequivocal terms that no suit shall be defeated by reason of mis-joinder or non-joinder of the parties and the court may proceed with the matter in controversy so far as regards the rights and interests of the parties, actually before it. It follows that mere mis- joinder of the Chief Minister in the panel of respondents would not defeat the very merits of the instant petition. 8. We have been called upon to examine the legality of the impugned Notification No. DG(LG)RD/LGC/2016, dated 6th May, 2016, issued by the Local Government Commission KPK, purportedly in exercise of power conferred by Section 55 of the Khyber Pakhtunkhwa, Local Government Act, 2013, vide which petitioners who are Nazim and Naib Nazim of District Government Mardan, have been suspended for a period of 30 days, on account of not passing the Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan) 7 budget with simple majority of total membership of District Council, Mardan, for the year 2015-16. KPK Local Government Act, 2013 has been enacted in compliance with Article 37(i) of the Constitution of Islamic Republic of Pakistan, 1973, for decentralization of the government administration as a principle of policy, to facilitate expeditious disposal of its business to meet the convenience and requirements of the public. Whereas Article 140-A of the Constitution of Islamic Republic of Pakistan, 1973, inserted through 18 th Constitutional Amendment, 2010, enjoins that each province shall by law, establish a Local Government system and devolve political administration and financial responsibility and authority to the elected representatives of the local government, election of which shall be held by the Election Commission of Pakistan. Pursuant to the Constitutional command, local government elections were held in the province in 2015 and petitioners No.1 & 2 were elected as District Nazim and Naib Nazim of District Council, Mardan, respectively. It is undisputed that the house of District Council Mardan consists of 112 members and petitioners were elected by the house, by majority of votes. After assumption of office, Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan) 8 as per petitioners’ contention, petitioner No.1 tabled the salary budget which was unanimously passed and petitioners’ this stance is not repudiated. What allegedly, irked the Provincial Government was the Annual Development Programme Budget, which, according to respondents, was not passed by simple majority as per requirement of Section 35(2) of Act No.XXVII of 2013. The District Naib Nazim/Convenor of District Council Mardan summoned a meeting of District Council Mardan for 7th , 9 th and 10 th December, 2015 at 10.00 A.M. at Salateen Shadi Hall, Sugar Mills, Bypass Road, Mardan, vide office circular No. 535-670/DNN(M), dated 1.12.2015. The Agenda of the meeting was “Recitation of Holy Quraan” followed by presentation of budget for the year 2015-16 by District Nazim on 7 th December. Debate, suggestion and approval of the Budget was to be carried out on 9 th and 10 th of December, 2015. The attendance roll alongwith a circular of the meeting, Annexure-C of the writ petition shows presence of 60 members on 10 th of December, 2015, the date of approval of the budget, as the relevant column contains signatures of those members and by relying on the copy of the attendance roll, it is urged by the petitioners that budget was rightly Ishaq Shah,PS WP#1802/2016 (Justices Nisar Hussain Khan & Qaiser Rashid Khan) 9 passed with the simple majority which requires presence of 57 Members and the same was duly approved on 10 th December, 2015 by show of hands by 59 members and then the Session of the District Council was prorogued.
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