PESHAWAR: A bench of Peshawar High Court on Tuesday declared as illegal the order of chief minister to suspend Mardan district nazim and naib nazim, both from the opposition, and ordered their restoration.

The bench comprising Justice Nisar Hussain and Justice Qaiser Rasheed Khan accepted a writ petition filed jointly by district nazim Himayatullah Mayar of ANP and naib nazim Asad Ali of PPP, requesting to declare as illegal a notification issued on May 6 through which they were suspended for a period of 30 days.

The bench pronounced a short order of allowing the writ petition after completion of arguments by petitioners’ counsel Khalid Mehmood and provincial advocate general Abdul Lateef Yousafzai.

The judgment is of immense importance as it was the first suspension of nazim and naib nazim by Chief Minister Pervez Khattak under the KP Local Government Act, 2013.

Declares chief minister’s order about their suspension illegal

The petitioners were suspended on the ground that they had not passed the annual budget of the district in accordance with law. However, the petitioners had refuted the allegations, claiming that the budget was passed in accordance with the provisions of the local government law.

The advocate general tried to defend the chief minister’s impugned order, arguing that all the legal requirements were fulfilled before issuing the order. He contended that the petitioners had passed the budget in an illegal manner as on that particular day most of the members were absent and the petitioners had put forged signatures of the members on relevant attendance documents.

He argued that under Section 35 of KP Local Government Act, the budget of a local government should be approved by simple majority of the total membership of the respective council. He added that while passing the budget on Dec 10, the petitioners had not followed that legal requirement.

Mr Yousafzai said that several of the members had lodged complaints with the Local Government Commission that they were not present in the meeting and their forged signatures were put on the attendance sheet.

The advocate general contended that after receiving numerous complaints, the provincial government conducted forensic examination of the signatures which proved that the allegations were correct.

He rebutted the petitioners’ contention that the chief minister’s order was based on mala fide intentions. He said that chief minister had received a summary and on the recommendation of the commission he suspended the petitioners so that an impartial inquiry could be conducted within 30 days.

Mr Yousafzai said that the Local Government Commission in its meeting on April 1 received the preliminary inquiry report and it was decided that a formal inquiry should be conducted against the nazim and naib nazim and they may be suspended for 30 days during the course of that inquiry.

He said that chief minister was competent authority to suspend the two petitioners on the recommendation of the Local Government Commission.

The petitioners’ counsel Khalid Mehmood disputed the government claim that fake signatures were put on attendance sheets and argued that three of the members, who according to government, lodged complaints with the commission were in fact not present on the day of passage of the budget and their signatures were also not present on attendance sheets.

He argued that the district council unanimously passed the ‘salary budget’ of the devolved district departments on Oct 22, 2015. He said that in continuation of the budget proceedings, the house later passed the Annual Development Programme on Dec 10 by a simple majority i.e. 59 of the total 112 members.

The lawyer said the council unanimously approved the ‘salary and non-salary budget’ for its staff members on Jan 15, 2016.

He said that in compliance with the budget, the district government development committee headed by the district nazim was convened on Feb 16 wherein development schemes were approved.

Mr Mehmood said that district council unanimously approved certain guidelines in light of the budget on May 3 proving that there was no ambiguity about the passage of the budget by a majority of members.

He said there was no provision in KP Local Government Act for the suspension of district nazim and naib nazim for their failure to pass the budget. He said that the impugned notification had paralysed the Mardan district government and thus, hurting public interest.

Mr Mehmood said that law didn’t suggest that in case of the suspension of nazim and naib nazim, how and who would run the functions of the district government concerned.

Published in Dawn, May 25th, 2016