P L D 1967 Lahore 657 (PLP)

MUHAMMAD GUL, J.‑The two petitioners in the case were among 59 advocates, who contested election for the ten elective memberships of the West Pakistan Bar Council to be set up under section 5 of the Legal Practitioners and Bar Councils Act, 1965, hereinafter called the Act. Vide section 8 of the Act the election was "to conclude on or before the thirtieth day of November . . . ". The poll in the instant case was held on the 29th November 1966. The result, however, was announced on the 13th December 1966. According to the result announced respondents Nos. 3 to 9, 29, 30 and 47 secured the first ten places on the basis of the total number of votes polled by each of them and were consequently declared elected. It may be mentioned at this stage that election was to be by multiple vote that is to say, each advocate whose name was borne on the Provincial Roll of Advocates was entitled to record his choice of ten members out of the total number of contestants for the elected seats in the Provincial Bar Council. The petitioners having failed to poll the required number of votes to place them among the successful candidates who secured the first ten places have filed this writ petition under Article 98 of the Constitution to call in question the whole election on a number of grounds which will be noticed in sequel.

2. The impugned election was held under the Legal Practitioners and Bar Councils Rules, 1966 framed on 15‑10‑66, in the purported exercise of power under section 48 of the Act by the (Existing) Pakistan Bar Council constituted under section 7 read with section 14 ibid. A copy of the Rules is Annexure 'A' to the petition. These Rules which for the sake of brevity are hereinafter called as the impugned Rules provide, inter alia, for the conduct of election to the Provincial Bar Council. The Central Government in exercise of its powers under section 49 of the Act, also framed rules, also called the Legal Practitioners and Bar Councils Rules, 1966, which were published in the official Gazette vide S. R. O. 10(R)/66 on the 5th February 1966. These Rules, too, provided inter alia for the conduct of election to the Provincial Bar Council and for the determination of disputes concerning such election.

3. Mr. Shah Muhammad Rahman Ansari, petitioner No. 1, who addressed the main arguments in the case, questioned the vires of the impugned Rules under which the impugned election was conducted on the ground that the (existing) Pakistan Bar Council established "ad hoc" under section 7 read with section 14 referred to in the latter section as "the first Pakistan Bar Council was not competent to frame Rules under section 48 of the Act. He argued that reference to the Pakistan Bar Council in section 48 must be read as reference to the Pakistan Bar Council established under section 3 of the Act, which is possible only after the election to fill the ten elective seats. He laid particular stress on the adjective "first" prefaced to the words "Pakistan Bar Council" in the heading and the enacting provision of section 14 of the Act and urged that by the use of the qualifying word "first" the Legislature intended to draw a distinction between the powers and functions of the first Pakistan Bar Council established ad hoc under section 7 and the Pakistan Bar Council constituted on the regular footing under section 3 after election for the elective seats. Support for the argument was also sought from the fact that the Central Government, on the commencement of the. Act, also issued Rules in exercise of its powers under section 48 which according to the petitioner No. 1 still held the field and it was not competent to the first Pakistan Bar Council to supersede the Rules framed by the Central Government.

4. The whole argument appears to us to be devoid of substance. Section 14 reads as under:‑ "The first Pakistan Bar Council.‑(1) As soon as may be after the coming into force of this Act, the first Pakistan Bar Council shall be constituted in accordance with the provisions of section 12 read with section 7." In our opinion, the qualifying word "first" before the words "Pakistan Bar Council" both in the heading and enacting part of the section was never intended to denude the first Pakistan Bar Council of rule‑making power under section 48 of the Act or otherwise to distinguish between the functions of the first Pakistan Bar Council or its successor bodies brought into being from time to time under the provisions of this Act. The said qualifying word is merely intended to identify the Pakistan Bar Council set up on the commencement of the Act, with reference to the sequence of time and the manner of its establishment and had no significance beyond that. If the Legislature had intended to create distinction between the functions of the first Pakistan Bar Council established under section 7 read with section 14, then it would have inserted a separate setting out such functions to mark them off from those of the Pakistan Bar Council established after election. Absence of any such provision in the Act cannot possibly be explained upon any hypothesis other than this, that functions of the first Pakistan Bar Council and its successor bodies remain identical. Moreover it is impossible to read section 49 of the Act so as to sustain the petitioners' argument that the Rules framed by the Central Government and brought in force on 5‑2‑1966, with the commencement of the Act cannot be superseded by the first Pakistan Bar Council by Rules framed under section

48. For the material purpose sections 48 and 49 read as under: "

48. Power to make rules.‑(1) The Pakistan Bar Council may make rules to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for‑ (a) the manner in which election of members of a Provincial Bar Council shall be held and the manner in which results of election shall be published." "

49. Power to make rules in the transitional period.‑Until rules are made by the Pakistan Bar Council under section 48, the power of that Council under that section shall be exercised by the Central Government." Two propositions are perfectly clear from a plain reading of the above two provisions. First, that the Pakistan Bar Council is the sole repository of the rule‑making power and second that power of the Central Government in the relevant field is exercisable only for transitional period, namely, "until rules are framed by the Pakistan Bar Council". These words indicate a terminus a quo until which the rule‑making power will avail to the Central Government. In other words, as soon as the Pakistan Bar Council (including the first Pakistan Bar Council) frames its own rules to carry out the purposes of the Act, the rules framed by the Central Government will expire automatically, under the terms of section 49 itself. Therefore, it is wholly fallacious to think that the Rules framed by the Central Government still continue to be in force.

6. The validity of impugned Rules was also attacked on the ground that they were not published in the official Gazette as was done in the case of the Rules framed by the Central Government, nor do the impugned Rules specify any date for their commencement. A short answer to the first part of contention is that publication in the official Gazette of the Rules framed under section 48 or section 49 is not a condition precedent for their operation. Whenever law requires publication in the official Gazette as the necessary condition for the coming into operation of the statutory rules, it expressly says so. See for instance section 38 of the Act I of 1944. The second part of the contention is equally devoid of substance. Statutory rules, ordinarily come in force as soon as they are framed by the competent authority, unless they require to be approved by or laid before the Legislature. There is no such limitation in the present case, It is pertinent to point opt even the Rules framed by the Central Government did not contain any commencement clause.

7. It was next argued by petitioner No. 1, that notices regarding the polling stations were not duly published as required by rule 3(5) of the impugned Rules. It was urged that the requirement of the rule was mandatory and its non‑compliance vitiated the election. Rule 3(5) requires the publication of notices regarding the places where polling stations are to be established, "in four leading newspapers of the Province over the signature of the Secretary on a date not later than thirty‑one days preceding the date fixed for polling". The petitioners placed on the file, a copy of the notice (Annexure 'B') issued by the Secretary and published in the issue of The Pakistan Times dated the 12th November 1966, giving list of polling stations in various districts of the Province. An additional list was published in the same newspaper on the 15th November 1966. It was urged on the basis of these facts that the notice fell short of thirty‑one days as required by the rule 3(5) and its violation vitiated the whole election. That the notices were not published within the prescribed time cannot be doubted. Even in the news item published in The Pakistan Times on 29th November (Annexure B') setting out the Schedule relating to the election to the Provincial Bar Council, it was stated that the list of polling stations will be announced shortly . . . .".

8. The question whether the requirement of rule 3(5) regarding the publication of notice is to be construed as mandatory or directory is however, a question of some nicety. The rule itself does not indicate the consequence of its non- compliance. Therefore, the question whether the prescription as to the duration of notice is to be regarded as a mere direction involving so invalidating consequence in its disregard, or imperative with implied nullification for its disobedience will be a matter of inference depending upon the object or scope of the provision. Ordinarily, nullification will be the usual consequence of disobedience, but when such result would involve general inconvenience or injustice to innocent persons without promoting the real cause or object of the enactment, such an intention is not attributed. Accordingly, it has been observed in Maxwell on the Interpretation of Statutes, 1962 Ed. at page 364‑ " . when a public duty is impugned and the statute requires that it shall be performed in a certain manner, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative." The above principle which is founded on a strong line of judicial precedent is apt in the instance case. Rule 3(5) impose, what essentially is a public duty on the Secretary to the Provincial Bar Council to notify the polling station at least thirty‑one days prior to the election. The Secretary by publishing this notice on the 12th November 1966, plainly failed or neglected to discharge this duty duly. Nevertheless election has been held on the due date and respondents Nos. 3 to 9, 29, 30 and 47 have been declared elected. To read the prescription as to the duration of notice in the mandatory sense and to invalidate the election of the aforesaid respondents owing to the shorter duration of notice over which they have no manner of control would cause them intolerable inconvenience and injustice, Therefore, the prescription must be read as merely directory. In Ch. Sadiq Ali v Collector, Gujanwala (P L D 1964 Lab. 255), rule 3(2) of the West Pakistan Basic Democracies (Vote of No‑Confidence against Chairman) Rules, 1963, which read as follows came in for interpretation: "Seven days clear notice shall be given for a meeting convened under the provisions of this rule." It was held in this case the requirement as to duration of notice was directory and its non‑observance per se will not render the notice invalid. This case was distinguished in Muhammad Akram v. C. A. Saeed (P L D 1965 Lab. 703) in which rule 36 of the Electoral College Rules, 1964, which inter alia, provided for similar notice in relation to proceedings before the Election Tribunal set up under section 59 of the Electoral College Act, 1964. But the notice in the case being held as regulatory of proceedings which were essentially judicial in character, the requirement of a proper notice in that case was mandatory. We have no doubt, in our mind, that the instant case falls within this rule, laid down in Sadig Ali's case, the matter being germane to election and not to judicial proceedings. 8‑A. Lastly, it was argued that vide section 8 of the Act the election was to conclude before the 30th November, but the result was not announced till 13th December 1966 and therefore whole election was invalidated for having been concluded beyond the time prescribed by the statute. For the reasons stated in the preceding paragraph, the provision of the statute with regard to the terminal date, before which the election is to conclude must be held directory. Footnote No. 42 at page 369 of Maxwell's Interpretation of Statute refers to a number of English Cases in which a British statute which required an officer to prepare and deliver to another officer list of voters on or before a certain day, under a penalty was held to be directory so far as the validity of electoral list was concerned and the list not delivered till a later day was held to be valid. It was observed that to hold the electoral list to be invalid in such circumstances, would in effect, be to put it in the power of the person charged with the duty of preparing it to disenfranchise the electors, a conclusion too unreasonable for acceptance. We consider that the instant case stands on a better footing, in that the election was held within the prescribed date and only the announcement of result was delayed till after that date for reasons over which the contesting candidates has scarcely any control.

9. For the foregoing reasons, we dismiss the writ petition in limine. K. B. A. Petition dismissed.