Sindh High Court on Friday allowed a petition filed by Orangi Town Nazim Shahid Alam against his removal from office of the Nazim and set aside the provincial government's notifications.
"We allow this petition in the terms that the notifications impugned in this petition are declared to be without lawful authority and of no legal effect," SHC's division bench comprising Justice Anwar Zaheer Jamali and Justice Syed Ali Aslam Jaffery ordered.
The Orangi Town Nazim, in a constitutional petition, had challenged the notifications for his removal and ceasing of Town funds by the provincial government contending the government had not any power under the law to remove a duly-elected Nazim.
The director general PM&EC of the provincial local government department, through its notification on December 5, 2003, restrained Shahid Alam to act as the Orangi Town Nazim in pursuance of provision of section 197 of the Sindh Local Government Ordinance 2001 as he is allegedly involved in misappropriation of Town funds and Naib Nazim Muhammad Feroz was directed to act as the Nazim.
Petitioner's counsel Barrister Kamal Azfar submitted that a series of actions were taken against his client to keep him away from his office. He contended the provincial government had not any power under the law to remove a duly-elected Nazim.
The court, in its order observed, that the chief executive of the province, under section 129 of the Ordinance, had authority to suspend only the Zila Nazim, if in his opinion, he is deliberately avoiding or failing to comply with directions given by the chief executive.
Such suspension is again subject to the ratification by the provincial assembly within 30 days according to procedure presented under sub-section (3) to (5) of section 129.
It was noted that no such parallel powers have been conferred on the respondents for any direct action against the Town Nazim.
"In other words," the court observed, "the legislature did not intend to see any involvement of respondent No.2, the chief executive of the province, at such level."
The court did not agree by the submission of AG Sindh Anwar Mansoor Khan that since inquiry proceedings with reference to serious allegations of corruption are pending against the petitioner therefore, issuance of notifications dated 5.12.2003 and 6.12.2003 by the provincial government was justified.
The court observed: "There is hardly any need to observe that when the Ordinance does not permit actions of such nature against the petitioner then seriousness of allegation will not warrant or give legal cover to such actions of respondents. To our query that whether period from 5.12.2003 till this date, more than two months, was not enough for Inquiry Committee or any other agency involved in inquiry to conclude the inquiry, if that was only reason for keeping the petitioner away from his office of Town Nazim, the learned AG was unable to give any satisfactory reply."
"Even if, for the argument sake, there is any substance in allegations levelled against the petitioner then for that purpose on one hand, procedure could have been followed for his recall/removal as contemplated under sections 62 and 63 of the Ordinance relating to external recall and internal recall or on the other hand, appropriate legal actions could have been followed under other relevant laws of the country dealing with the cases of corruption and malpractice," court further observed.
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