1991 PLP 154 (CLC)

(c) coercion exercised by the State functionaries especially the Special Advisor to Chief Minister who is also a member of the Local Council, the Deputy Commissioner and Abdul Ghani and Amjad Ali Waraich, the proclaimed offenders with the result 'that members were not free to make their choice freely and independently. It was alleged that Abdul Gham and Amjad Ali Waraich kept 32 members confined at a bungalow at Model Town, Bahawalpur and thus the petitioner was also denied the opportunity to explain his conduct to them. It was added that Amjad Ali Waraich is a proclaimed offender in a murder case and despite moving of three applications to apprehend the said P.O., the Deputy Commissioner failed to act in accordance with law and to arrest him and thus provided him opportunity not only to coerce other members but also to participate in the said meeting. The plea was that had the law been obeyed and Amjad Ali Waraich been arrested and removed from the scene, the motion would have failed and then the 2/3rd majority could not be mustered. (v) Motion of no‑confidence was not allowed to be specifically discussed as the petitioner was not allowed to make oral submission while the written explanation supplied by the petitioner though was circulated amongst the members but was not even gone through by them. The plea was that the denial to grant opportunity to make oral submission in the meeting, has rendered the proceedings illegal as according to the learned counsel, the principle enunciated by the Supreme Court in the case of Chief Commissioner Karachi and another v. Mrs. Sohrab Katrak (P L D 1959 S.C. 45) equally applies to the proceedings of no‑confidence.

4. We have given serious consideration to the pleas and arguments advanced by the learned counsel for the petitioner and the Advocate‑General and have reached the conclusion that the petition is without merit for the reasons hereunder. The plea that the proceedings of no‑confidence held on 21‑12‑1989 stand vitiated and as such are of no legal effect is based on the premises that Rule 4 (a) of the Vote of No‑Confidence Rules, 1980 is ultra vires being in conflict with Section 38 of the Ordinance and being also derogatory to the concept of autonomy of the Local Self‑Government Institutions. It was submitted that these Institutions must be kept independent and free from the official influence and as such the Deputy Commissioner the representative of the Executive could not legally be allowed to preside over the meeting.

5. It was also argued that as subsection (2) of section 38 provides that all meetings, whether ordinary, special, or emergent, are to be presided over by its wit Chairman, Vice‑Chairman or the member but Rule 4 of the Rules which provides that meeting is to be presided over by the officers of the executive being contrary to the parent legislation is ultra vires as such the proceedings conducted stand vitiated and are of no legal effect. Learned counsel sought to support the aforesaid plea by relying on Sh. Abdur Rchman, Advocate, Bahawalnagar v. The Collector and Deputy Commissioner, Bahawalnagar and 13 others (P L D 1961 SC 451). In order to appreciate the submission, the provisions of law may be reproduced. The relevant part of section 38 _of the Punjab Local Government, Ordinance, 1979 reads as under: "

38. Meetings. (1) A Local Council shall within three months of the assumption of office, frame bye‑laws for the conduct of its meetings which may , besides other matters, provide for ..... (a) the types of meetings, that is to say, ordinary, special or emergent; (b) the types of business to be conducted in different types of meetings; ' (c) the place of meetings (2) All meetings of a local council shall be' presided over by its chairman, and in his absence by the vice‑chairman, and in the absence of both, by a remember chosen for that purpose by the members present. The relevant part of Rule 4 of the Vote of No‑Confidence Rules, 1980 reads as under:‑ "

4. Presiding Officer: The meeting convened under rule 3 shall:‑ (a) in case of a Municipal Corporation or Zilla Council, be presided over by:‑ (i) the Divisional Commissioner; or (ii) the Additional Commissioner or the Deputy Commissioner, if so, nominated by the Divisional Commissioner." 6.The vote of No‑Confidence Rules, 1980 were framed by the Government of the Punjab in exercise of powers vesting under section 31 read with section 167 of the Ordinance. Section 31 forms part of Chapter 4 which is titled as "Election and Related Matters," while Section 38 forms part of Chapter 5, which bears the heading "Executive Powers and Conduct of Business". Section 38 has been quoted above. Section 31 reads: "

31. Vote of no‑confidence.‑‑‑(1) A Chairman or a Vice‑Chairman shall vacate his office if a vote of no‑confidence is passed against him in the. manner prescribed, by two‑third majority of the total membership of the Local Council " The word `prescribed' used in the Section 31 stands defined in section 3 (xxix) as `means' prescribed by rules'. The rules prescribed by the Government provide the manner of convening and holding the meeting for consideration of the motion of no‑confidence. This meeting is, therefore, not one of the meetings' contemplated in section 38, as for the meetings for conduct of business of the Local Councils, bye‑laws are to be framed by Local Council themselves. It is, therefore, apparent that subsection (2) of section 38 which provides that all meetings are to be presided over by its Chairman, Vice‑Chairman or the member, are only those meetings for which the Local Council has to frame the ` bye‑laws and not the meetings to be convened for considering the no‑confidence motion the wires of rule 4 of Vote of No‑Confidence Rules 1980, as such, is not' to be tested on the touch‑stone of section 38 of the Ordinance. The reference made to and reliance placed on provisions of section 38 of the Ordinance is, therefore, misplaced. The case of Sh. Abdul Rehman (supra) is also not relevant as in the said case the three persons who had participated in the meeting were held to have no right to participate or to vote under Article 25 (4) (c) of the Basic' Democracies Order 1959. Their participation and the chairing of the meeting by one of them was thus held to be an illegality of the type in the circumstances of the case which had rendered the meeting illegal as it was observed that these persons could have very well‑affected the passing of the resolution itself. At the time, it was further observed that every irregularity of this kind does not necessarily vitiate the proceedings. The rule which is applicable to the instant case nominates the officer who is to preside over the meetings. The rule as is framed under the legislative power has not been shown to be ultra vires. In view of above, this contention is repelled.

7. The second submission is premised on the principle of natural justice. According to the learned counsel as the elected Chairman is entitled to complete the tenure of his elected officer, he is entitled to be made aware of the charges, allegations or causes on account of which he is sought to be deprived of the elected office and that this will necessarily entail allowing of reasonable opportunity to defend himself. It was added that neither reasonable opportunity of offering the explanation oral as well as written can be denied by the `subordinate legislation as was held in the case of Sh. Abdul Rehman (supra) and Manzurul Haq v. Controlling Authority, Local Councils Montgomery and others (P L D 1963 S.C. 652) nor the provisions of rule 5 (4) of the Rules were complied with as the petitioner was not provided an opportunity to orally explain his position. Learned counsel pressed into service the Supreme Court judgment in the case of Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (P L D 1959 S.C, 45), wherein it was observed that mere consideration of the memorandum of appeal alongwith other material was not sufficient for deciding the appeal and that rule of justice embodied in the maxim `audi alteram partem' also extends to all proceedings by whomsoever held which may affect the person or property or other right of the parties concerned. Reference was also made to Afazuddin Ahmad v. Divisional Commissioner, Rajshahi and others (P L D 1967 Dacca 293) in this respect. Learned counsel submitted that neither in the requisition submitted any allegations were made nor before the meeting or during the meeting any charges or allegations were made known what to say of serving any show cause notice. It was added that the written explanation of the petitioner was though circulated amongst the members but they did not even go through the same. His plea was that Superior Courts have repeatedly held that the principle of natural justice is to be considered to be forming part of every statute unless excluded specifically and that this principle equally applies even to proceeding held for considering a no‑confidence motion.

8. At this stage we may note that learned counsel for the petitioner conceded that neither in the Ordinance nor in the Rules, there is any provision providing for the service of show‑cause notice or charge‑sheet or that the requisition for no‑confidence meeting is to contain any charges or allegations or of making the Chairman aware of any such allegations, charges or accusation. Learned counsel also admitted that he was not able to find any precedent or opinion of any jurist or commentator wherein the principle of natural justice, is being canvassed, was held or considered to be applicable.

9. We have considered these submissions but find them without merit. Any persons holding any elected office, has the right to hold the office only if he continues to enjoy the confidence of the electorate or the members who have elected him. Once we hold that there has necessarily to be good grounds or charges and that too establishment of the same by holding an enquiry, then we will have to hold that the result achieved i.e. the carrying of the no‑confidence motion by the requisite majority is justice able and as such its reasonableness or otherwise would be open to scrutiny of the Court in judicial review. Obviously the choice of the voters of the electorate is neither justice able nor open to scrutiny in judicial review. The extension of the principle of natural justice in its fullest detail as canvassed i.e. service of show‑cause notice or existence of good and reasonable grounds or holding of enquiry or some sort of proceedings to find out the correctness of the allegations after providing adequate opportunity of defence cannot be extended as that will amount to curtailing or curbing the right of the electorate/members to unseat the person from the elected office. The right to' complete tenure of the office exists so long as the holder of the office continues to enjoy the support and confidence of the members. Rule 2 (4) of the Vote of No Confidence Rules provides that for the purpose of moving a requisition under p sub‑rule (1) a mere expression of no‑confidence, without assigning any reason, therefore, shall be sufficient. Law presumes that members will act reasonably and in the interest of public and the constituency that they represent and if they go wrong then electorate will reject them in the next election. Then Rule 5 (4) of the rules provides that the Chairman or the Vice‑Chairman against whom a motion of no‑confidence has been moved shall have the right to offer a personal explanation either verbally or in writing, and where a written explanation is offered, it shall be circulated amongst the members and shall form part of the record of the proceedings of the meeting. To this extent only the principle of natural justice stands attracted. This provisions was complied with as admittedly written explanation submitted by the petitioner was circulated amongst the members present in the meeting

10. The plea that the petitioner was not allowed to address the meeting was refuted with the assertion that no such plea was made in the meeting. The fact that any such opportunity was sought has also not been mentioned in the recorded proceedings of the meeting. The plea of not allowing an opportunity to address the members orally is firstly not made out and secondly in the circumstances non‑providing of such an opportunity to the petitioner would not; have made any difference as admittedly 34 members of Zilla Council were not even inclined to listen to him.

11. The two cases of the Supreme Court cited by the learned counsel for the petitioner have no application in the instant case as these cases were of removal on the basis of accusations under Article 25 of the Basic Democracies Order. Moreover, Article 25 of the Order and the rules prescribed there under contemplate service of show‑cause notice and holding of an inquiry and the removal renders the office holder ineligible for election or appointment to any Local Council for a period not exceeding five years as the controlling authority may fix. No such situation exists or similar provision applies to the instant case which is a case of removal from elected office as a result of passing of a no confidence motion. For all these reasons this plea is also repelled.

12. The grounds taken for asserting that the meeting held was illegal, are also without any force. Neither the notice is required to be served personally on any or all members of the Council nor the failure to give 7 days clear notice has rendered the meeting illegal. Rule,3 (4) of the Vote of No‑Confidence Rules, 1980 reads as under:‑ "3(4) The notice of the meeting shall be published by affixing it on a Notice Board of the office of the local council and may also be made known to the members by any of the following means: (a) an advertisement or a Press Note of the local council; or (b) A Radio announcement; or (c) beat of drum; or (d) such other mode as may be considered appropriate by the Presiding Officer." The notice was affixed on the Notice Board according the respondents on 14‑12‑1989. The case of the petitioner was that it would have been affixed on the Notice Board on 15‑12‑1989 as notice on him was served on 14‑12‑1989 at 9.00 p.m. It was added that he had noted this time of service on the receipt issued but the photo copy of the same produced for perusal during the arguments does not contain any such endorsement. It only bears the signature of the petitioner with date. Moreover, the perusal of the aforequoted rule 3 (4) of Vote of No Confidence Rules 1980 would show the personal service is not necessary on each and every member. The judgment in the Lahore cases of Muzaffar Ahmad Khawaja (supra) under company law obviously is not relevant. It may be noted that 27 members were personally served and the case of the respondent is that service on the other members was effected by serving the notices on the servants or the relatives of other members as they were not personally available at their residences and that the news of the holding of the meeting was also carried by Daily `Jang' in its paper of 15‑12‑1989. As against the affidavits of seven members filed by the petitioner, containing the assertions that neither they nor any of their servants or relatives was served with any notice of meeting nor the same was affixed on the doors of their houses, the report of Chief Officer, Zilla Council is to the effect that notices were served on the relatives and servants and that the notices were affixed at their doors. In any case, the news flashed in the newspaper of wide circulation could not be refuted. If these seven members were available at their residences, then the petitioner must have contacted them and informed them of the meeting as it was the case of the petitioner himself that he has to be provided seven days time to contact the members to explain his position with regard to the accusation if any or the adverse opinion entertained by them. These members would have thus gained knowledge of the date and time of the meeting.

13. Now coming to the question of seven days clear notice, we are of the view that the provision of seven days notice contained in sub‑rule 3 (2) is directory as was held in the cases of Ch. Abdul Ghani v. Deputy Commissioner and others (1987 C L C 2401) and Ch. Sadiq Ali v. Collector Gujranwala and E another (P L D 1964 (W.P). Lahore 255). Even in the case of the Supreme Court (Abdul Ghani supra) it was observed that every irregularity does not vitiate the proceedings. The Lahore case of Mian Muhammad Masud Ahmad v. Assistant Commissioner, Kharian and 8 others (P L D' 1983 Lahore 2) is distinguishable as in the said case the notice given was only of two days and so it was observed that the petitioner was prejudiced by too short a notice of two days when he was entitled to seven and this was considered objectionable coupled with other irregularities which considered in totality were held to have vitiated the proceedings.

14. The plea as to abuse of office, adoption of coercive tactics and confining of 32 members in a bungalow at Bahawalpur has been controverted. There is otherwise nothing on record to even prima facie establish these allegations. These F pleas cannot, therefore, form basis for holding that members were not in a. position to exercise their choice freely and independently especially when admittedly at the time of meeting no such influence was operating. Again the plea that Amjad Ali Waraich is a proclaimed offender has not been established on record. This fact was also admittedly not established by I producing any record before the Deputy Commissioner. Even if Amjad Ali Waraich is a proclaimed offender to the knowledge of the District Magistrate and d the Toba Tek Singh Police still he could not be deprived of the right to exercise the right of vote though it would have been proper to have apprehended him and made to obey the law.

15. The last plea that motion of no‑confidence was not allowed to be sufficiently discussed has remained unsubstantiated. Even if it has been substantiated, the same, in the circumstances, would not have made any difference as admittedly 34 out of 39 members who attended the meeting were against the petitioner. The petitioner having lost confidence of the two‑third majority of the members forfeited his right to continue in the elected office as Chairman Zilla Council. We are satisfied that no‑confidence motion was passed in accordance with law. This petition has no merit and is, therefore, dismissed in limine. H.B.T./Q‑33/L Petition dismissed.