P L D 1964 (W (PLP)

S. A. MAHMOOD, J.‑Ch. Sadiq Ali petitioner is an elected member of the Union Council Gunnaur (No. 28), Tehsil and District Gujranwala. By the notification of the Commissioner, Lahore Division, Lahore, dated the 16th of November 1959, the number of elected members was fixed at fifteen and that of appointed members at seven. The names of the elected members were notified on the 13th of January 1960, and those of the appointed members on the 15th of February 1960. The Union Council thus consisted of twenty‑two members. The petitioner was elected as Chairman of the Union Council on the 29th of February 1960. He was duly notified as Chairman of the said Union Council on the 12th of March 1960. Some time in 1961, Hakim Din, one of the appointed members, resigned his office and no one was appointed in his place. The reason may be that there was an amendment in the Basic Democracies Order (18 of 1959). The words "and appointed" in Article 11 and sub‑Article (3) were omitted by Article 4 of the Basic Democracies (Second Amendment) Order, 1962 (President's Order No. 22 of 1962). 2. On a requisition made by 14 members of the Union Council, a meeting of the Union Council was called for the 12th of December 1963, to consider a motion of no‑confidence against the Chairman. Notice of this meeting was served on the members oil the 5th of December 1963. In the meeting held on 12th of December 1963, 19 members were present, out of whom 14 gave votes in favour of the no‑confidence motion, and 5 voted against it. As a result thereof, Ch. Danishmand, respondent No. 2, declared the motion "passed" in accordance with rule 6 of the West Pakistan Basic Democracies (Vote of No-confidence against the Chairman) Rules, 1963. The petitioner challenges the validity of the acceptance of the motion of no- confidence by this writ petition under Article 98(2) of the Con stitution of the Republic of Pakistan, 1962, on two grounds Firstly, that the vote of no‑confidence was not supported by 2/3rd majority of the total number of the members, namely, 22 members ; and, secondly, that seven days' clear notice of the holding of the meeting was not given to the members. 3. After the removal of the petitioner from the office of the Chairman, Ch. Sardar Khan has been appointed as Chairman, of the Union Council in its meeting held on the 14th of January 1964. He has moved an application before us for being impleaded as a party to this writ petition. He has been heard through his counsel, Mr. Karam Elahi Chauhan. The learned Advocate- General appeared on behalf of the respondents on 27th February 1964, and was heard. 4. The main reliance of the learned counsel for the petitioner is on sub‑Article (6‑A) which has been added to Article 11 of the Basic Democracies Order, 1959, by the Basic Democracies Order (West Pakistan Amendment) Ordinance, 1963, and in interpreting the words "total number of members of the Union Council" reliance is placed on letter No. SOI (BD) 3‑17/63, dated the 16th of January 1964, from the Secretary to Government of West Pakistan, Basic Democracies and Local Government Department, Lahore, to all the Deputy Commissioners in West Pakistan, in paragraph 2 of which it is stated that the expression "total number of members" used in the Basic Democracies (West Pakistan Amendment) Ordinance, 1963, means "the total number of members constituting a Local Council and not the actual number of members serving at the time". Reliance is also placed on section 20 of the Basic Democracies (Second Amendment) Order, 1962, (President's Order No. 22 of 1962), which provides as under : ‑ "Savings.‑Notwithstanding the amendment of the said Order by this Order, all Town and Union Committees constituted, and the groups thereof formed, under the said Order, and all appointed members of any Local Council so constituted, and all members of the municipal bodies and Cantonment Boards elected by the groups so formed, shall continue until after the expiry of their respective terms, fresh elections are held and such Committees and councils are re‑constituted in accordance with the provisions of the said Order as amended by this Order." 5. The above provision is interpreted by the learned counsel for the petitioner as continuing the Union Council and its con stitution as it originally existed, and it is, therefore, argued that under sub‑Article (5‑A) of Article 11 vote of no‑confidence had to be passed by fifteen members out of twenty‑two. 6. The learned Advocate‑General and Mr. Karam Elahi Chuhan, on the other hand, argued that as President's Order 22 of 1962 omitted the words "and appointed" in clause (1) of Article 11, and its clauses (2), (3) and (4), the Union Councils consisted only of elected members ; and two‑third majority of the total number as required by sub‑Article (5‑A), introduced in Article 11 by Basic Damocracies Order (West Pakistan Amend ment) Ordinance (XXXV of 1963), means two‑thirds of the elected members, not including the appointed members, They also rely on rules 3 and 6 of the West Pakistan Basic Democracies (Vote of No‑confidence against Chairman) Rules, 1963, which provide that one‑half of the elected members may move a nor confidence motion and that it shall be declared as "passed" by the Presiding Authority if two‑third majority of the total number of members of the Basic Democracy, as required by Article 11 or 12 of the Basic Democracies Order, 1959, as the case may be, vote in favour of it. Thus, their contention is that the requisite number of members for passing a no‑confidence vote is two-third of the elected members of the Union Council only. It is, in the alternative, urged that even if the members of the particular Union Council are to be taken as a whole as saved by Article 20 of the President's Order 22 of 1962, it had only 21 members at the time, and, therefore, the vote of no‑confidence was duly passed, as fourteen out of twenty‑one voted in favour of it. 7. Their contention raised on behalf of the respondents must prevail. Originally, when the Union Council was con stituted, Article 11 of the Basic Democracies Order provided for elected and appointed members as may be fixed by the Commissioner, the appointed members not to exceed one‑half of the elected members. The Commissioner fixed the number at fifteen and seven respectively as stated already, so that the Union Council consisted in all of twenty‑two members. Then came the President's Order 22 of 1962, which was promulgated on the 6th of June 1962. Its Article 4 omitted the words "and appointed" from clause (1) and clauses (2) to (4) of Article 11 altogether. The result was that a Union Council consisted of such number of elected members as may be fixed by the Com missioner, there being no provision for an appointed member. One of the members, namely, Hakam Din, had resigned in 1961. His vacancy had not been filled up. Simultaneously, Article 20 of the Order provided that all elected members of a Local Council so constituted shall continue until, after the expiry of their respective terms, fresh elections are held and such councils are reconstituted in accordance with the provisions of the said Order as amended by this Order. The main contest between the parties has been on the question whether this Article had the effect of continuing the constitution of the Union Committee as twenty‑two members or only continued the life of the existing nominated members. In our view, on a plain reading of the Article and in view of the changes brought in Article 11 and other Articles, the purpose of the saving clause was to extend the, membership of the existing appointed members until the Union, Councils were re‑constituted in accordance with the amended Order. In view on the amendment of Article 11, a Union Council consists only of elected members, and the Basic Democracies Order, as amended, does not recognise or permit appointment o appointed members, but the effect of the saving clause is to continue the existing appointed members. Therefore, only those members who were appointed members at the time when Article 20 (which is the saving Article) was enacted, could continue and can at last be said to constitute members of the Union Council. No fresh member could be appointed. Conse quently, the total number of members of the Committee cannot be deemed to be 22, as originally constituted, by reason of Article 20 of the President's Order 22 of 1962. 8. In fact, under Article 11 of the Basic Democracies Order, a Union Council consists only of the elected members. Sub-- Article (5‑A) having been introduced in Article 11 by Ordi nance 35 of 1963, Article 11 now reads as under :‑ "11. Union Councils.‑(1) A Union Council shall subject to the other provisions of this Article, consist of such number of elected members as may be fixed by the Commissioner. (2) Omitted. (3) Omitted. (4) Omitted. (5) A Union Council, shall in the prescribed manner, elect one of its members to be its Chairman, and the Chairman so elected shall ex officio be a member of the Thana or Tehsil Council within whose jurisdiction the Union lies. (5‑A) The Chairman of a Union Council shall vacate office if a vote of no‑confidence is passed against him in the prescribed manner by a two‑third majority of the total number of members of the Union Council: Provided that where a motion of no‑confidence against the Chairman has been moved and has not been carried, no similar motion shall be moved against him until after the expiry of six months from the date the motion was moved. (6) There shall be paid to the Chairman of a Union Council such honorarium as may be prescribed." In the above context, the words the total number of members of the Union Council" cannot be interpreted as referring to members other than elected members and cannot include the appointed members, who were continued as members by Article 20 of the President's Order 22 of 1963. It has already been held that that Article did not have the effect of preserving the original constitu tion of the Union Council as twenty‑two. 9. Rule 3 of the West Pakistan Basic Democracies (Vote of No‑Confidence Against Chairman) Rules, 1963, runs :‑ "(1) Not less than one‑half of the elected members of a Basic Democracy may by a written requisition signed by them, apply to the Controlling Authority to convene a special meeting of the Basic Democracy to consider a no‑confidence motion against the Chairman, and the Controlling Authority shall, within fifteen days of such application convene a special meeting of the Basic Democracy for the purpose, (2) Seven clear days' notice shall be given for a meeting convened under the provisions of this rule. (3) The quorum for such a meeting shall be two‑thirds of the total number of members of the Basic Democracy." Rule 6 of the aforesaid Rules provides :‑ "(1) When in the opinion of the Presiding Authority, the motion of no‑confidence has been sufficiently discussed, he shall call upon the member supporting the motion to stand up in their seats. The Presiding Authority shall count the number of such members and record their names, and if such members form a two‑third majority of the total number of members of the Basic Democracy as required by Article 11 or 12 of the Basic Democracies Order, 1959, as the case may be, the Presid ing Authority shall declare that the motion has been passed. If the motion is not supported by the requisite majority, it shall be deemed to have been dropped. (2) A declaration made by the Presiding Authority under sub‑rule (1) shall be final and shall not be questioned in any proceedings." 10. It will be noticed that under rule 3, one‑half of the elected members may apply to the Controlling Authority to convene a special meeting and that under rule 6, if two‑thirds of the elected members vote in favour of the no‑confidence motion, it shall be declared as "passed". In either case, it is the "elected members". The nominated members can neither join the requisi tion nor cast a vote in the no‑confidence motion. As such, the appointed members cannot be taken into consideration for calculating the two‑third majority. Rule 6 specifically provides that it shall be two‑third majority of the total number of members of the Basic Democracy as required by rule 11, i.e., the elected members. In the present case, it is conceded by Mr. S. M. Zafar that the requirements of rules 3 and 6 were satisfied as not less than one‑half of the elected members moved the Controlling Authority to convene a special meeting and not less than two -thirds of the elected members voted in favour of the no‑confidence motion. No argument has been raked by biro in view of the pro vision in Article 39 (4) of the Basic Democracies Order, 1959, that the proceedings of the meeting held to consider the no- confidence vote were invalid for the reason that appointed members took part in the requisition or the meeting. 11. Even if it be considered that the appointed members are to be deemed to be members for purpose of Article 11 (5‑A), the requisite majority did vote in favour of the no‑confidence motion, but we cannot accept the contention that the constitution of the Union Council remained 22 as before. 12. An objection was also taken in the writ petition that seven clear days' notice was not given for the meeting, which was convened under rule 3 (2). It is stated in the report that notice of the meeting was served on the members on the 5th December and the meeting was held on the 12th December. It is true that seven clear days' notice was not given thereby, but o this was a mere irregularity and did not affect the result or prejudice the petitioner. No prejudice has beers alleged or complained of. The rule cannot be deemed to be a mandatory one, so as to invalidate the proceedings of the election. Nineteen members out of twenty‑one attended the meeting and, therefore, no such illegality as invalidates the result of the meeting can be deduced. This objection was not actually raised before us in arguments. 13. For the reasons given above, we see no force in this writ petition, which is dismissed, but as the question of law involved was of some complexity, we leave the parties to bear their own costs. K. B. A. Petition dismissed.