P L D 1963 Supreme Court 652 (PLP)

B. Z. KAIKAUS, J.‑

Chaudhri Manzur‑ul‑Haq the appellant in this appeal was in February 1960, elected as a member of Union Committee "B" of Ward No. 4, Urban Area Montgomery‑, In April 1960, he was elected as a Chairman of the Union Committee and he became thereby by virtue of Article 1 2 (51 (b) of the Basic Democracies Order, 1959, an ex‑officio member of the Municipal Committee, Montgomery. On the 5th of June 1960, he was elected as Vice President of the Municipal Com mittee of Montgomery. In accordance with Article 15 (2) of the Basic Democracies Order as amended in 1960 every Vice Chairman of a Municipal Committee becomes an ex‑officio member of the District Council. However, it was assumed on all hands that notifications regarding his election as Vice Chairman of the Municipal Committee as well as regarding his becoming a member of the District Council were necessary under the law. No such notification was actually issued by the Govern ment and presumably he was not allowed to act either as a Vice Chairman or as a member of the District Council. The appellant made continued efforts with the executive authorities that they may accept him as Vice‑Chairman of the Municipal Committee and member of the District Council but to no avail. Ultimately on the 10th June 1961, i.e., more than a year after his election as Vice‑Chairman he filed in the High Cour0bf West Pakistan Writ Petition No. 383 of 1961 praying for a mandamus directing the Controlling Authority; the District Council, and the Municipal Committee to permit him to function as Vice‑President of the Municipal Committee as well as a member of the District Council. This petition came up for hearing on 20th June 1961, and notice was issued to the respondents to show cause why the mandamus prayed for should not be granted. On the 1st of July 1961, i. e., ten days later the appellant received from the Controlling Authority that is, the Collector of the district, a notice calling upon him to show cause why he should not be removed from the membership and Chairmanship of the Union Committee as well as from the membership of the Municipal Committee. In this notice the charges against the appellant were stated. The appellant sent a reply to this notice denying all the charges and claiming that an open enquiry be held and that the persons mentioned in the notice in respect of whom the charges had been framed be produced as witnesses. On the 11th August 1961, the Controlling Authority made a reference to the District Council for removing the appellant from the Chairmanship of the Union Committee. On the 12th August 1961, the appellant received a notice that a meeting of the District Council was to be held on the 21st August 1961, for a considera tion of the reference made by the Controlling Authority for his removal. On the 21st August 1961, a special meeting of the District Council, Montgomery, was held and a resolution re moving the appellant from the membership of the Union Committee and its Chairmanship was passed. Under the circumstances the previous writ petition became infructuous and the appellant then filed Writ Petition No. 600 of 1961, out of which the present appeal arises. In this writ petition the appellant prayed for a certiorari or other appropriate writ declar ing his removal to be invalid and for a mandamus that the appellant be permitted to function as a Chairman of Union Committee "B", a Vice‑President of Municipal Committee, Montgomery, and a member of the District council of Montgo mery. Before the High Court it was urged on behalf of the (i) that the appellant having become a member of the District Council no order removing him from membership of a Basic Democracy or a Municipal Committee could be based on any resolution which did not result in the removal of the petitioner from the membership of the District Council ; (ii) that the meeting removing him was irregularly held add its proceedings were invalid ; and (iii) that the Controlling Authority in relation to the appellant in his capacity as a member of the Municipal Committee was o. the Commissioner and not the Collector of the District and, therefore, the reference by the Collector was incompetent. All these contentions were repelled by the High Court and the writ petition was dismissed. Leave to appeal had been granted in this case because a number of questions of law relating to the interpretation of the Basic Democracies Order and the rules framed thereunder arose for decision. Before us learned counsel for the appellant has put forward two contentions :‑ (i) that proceedings were taken against him under Article 25(4) of the Basic Democracies Order which does not relate to official members whereas the appellant was in fact an official member; and (ii) that for a number of reasons the proceedings of the meeting in which the resolution of his removal was passed were invalid. Before proceeding further it will be convenient to reproduce Article 25 of the Basic Democracies Order. It runs :‑ "

25. Resignation and removal of members.‑(1) Any member of a Local Council may resign his office by tendering his re signation to the Chairman, and if he is the Chairman, to the Controlling Authority, and the seat of the member, or the office of Chairman, as the case may be, shall become vacant when the resignation is accepted by the Controlling Authority. (2) A member of a local Council shall render himself liable to removal from membership: (a) if he incurs any of the disqualifications specified in Part If of the Second Schedule ; (b) if he, without reasonable excuse, absents himself from three consecutive meetings of any Local Council ; or (c) if he is guilty of an abuse of power or of any misconduct in the discharge of his duties as a member, or has been responsible for any loss or misapplication of any money or property of any Local Council, or any local body or other local authority. (3) The Controlling Authority may, after such enquiry, if any, as may be considered necessary, remove any appointed member of a Local Council, who is liable to removal under this Article, from such membership Provided that no appointed member shall be removed without consultation with, or without the previous approval in writing of, the authority in consultation with whom or with whose approval he was appointed under Article 21. (4) An elected member of a Local Council shall not be removed from such membership unless, at a special meeting to be convened for the purpose in accordance with the rules made by competent authority, a resolution to the effect that he is liable to be removed under this Article is passed‑ (a) in the case of a member of a Union Council . or a Town Committee, by a majority of the representative members of the Thana or Tahsil Council, concerned ; (b) in the case of a member of a Union Committee, by a majority of the representative members of the municipal body or the Cantonment Board concerned ; and (c) in the case of a member who is the Chairman of a Union Council or a Town Committee, or of a Union Com mittee, and is ex‑officio a member of a Thana or Tahsil Council, or of a municipal body or a Cantonment Board, by a majority of such members of the District Council concerned as are the Chairmen of the Union Councils, of the Town and Union Committees, and of the municipal bodies, in the District, and the Vice‑Presidents of the Cantonment Boards therein ; and on the passing of such resolution, the member shall stand removed. (5) A person removed under this Article shall cease to be a member of every Local Council of which he may be a member, and shall not be eligible for election or appointment to any Local Council for such period, not exceeding five years, as the Controlling Authority of the Local Council from which he is removed may fix in each case. (6) Nothing in this Article shall apply to any official member. (7) No Court shall have jurisdiction to enquire into or question the validity of anything done, or any order made or resolution passed under this Article. It will be observed that according to clause (6) this Article is not applicable to any official member. In order to prove that the appellant is an official member learned counsel for the appellant relied upon Article 15 of the Basic Democracies Order which runs: "

15. District Councils.‑(1) A District Council shall, subject to the other provisions of this Article, consist of such number of official and appointed members as may be fixed by the Commissioner. (2) The Chairman of the Thana or Tahsil Councils, the Vice‑Chairmen of the municipal bodies, and the Vice‑Presidents of the Cantonment Boards, in the District, and such represen tatives of departments as may be specified by the Government and appointed by the Commissioner, shall ex‑officio be the official members of the District Council. (3) The total number of appointed members of a District Council shall not be less than the total number of its official members, and at least one‑half of the appointed members shall be chosen from amongst the Chairmen of the Union Councils and of the Town and Union Committees, in the District. (4) The Collector shall ex‑officio be an official member of the District Council and its Chairman." This Article shows that the District Council consists only of the appointed and official members. 1t is admitted that the appellant is not an appointed member. At the same time clause (2) of Article 15 makes it clear that Vice‑Presidents of Municipal Committees are to be ex‑officio "official members" of the District Council. This does not leave the matter in doubt and clearly the appellant was an "official member" of the District Council. In this connection the learned Additional Advocate‑General put forward two contentions :‑ (i) that according to definition of "official member" he must be an official and the appellant is admittedly not an official within the meaning of the Act ; and (ii) that the appellant has not been notified either as a Vice President or as a member of the District Council, and is there fore not entitled to the writ which he claimed. It is true that "official member" has been defined in Basic Democracies Order as "a member who is an official" and an "official" has been defined as "a person who is in receipt of a salary from the revenues of the Federation or a Province, out of a Local Fund" and admittedly the appellant would not be covered by this definition. However, the definition applies only in the absence of a repugnancy in the context and here the repugnancy is as strong as it could be for Article 15 describes the appellant as an official member of the District Council and at the same time the District Councils consist of only two kinds of members appointed and official and the appellant is not an appointed member. The contention that as the appellant has not been gazetted as a Vice‑Chairman or a member of District Council he is not entitled to be regarded as such receives no support from the Municipal Administration Ordinance or the Basic Democracies Order. There is no provision whether with respect to the Vice Chairman or with respect to an official member of the District Council that there has to be a notification in the Gazette. According to section 17 of the Municipal Administration Ordinance there has to be a notification with respect to a member, but there is no reference in this section to a Vice‑Chairman. In Article 26 of the Basic Democracies Order there is a provision for notification with respect to appointed members but there is no such provision with respect to official members. It has to be pointed out at the same time that the mere existence of a provision for notification is a wholly insufficient basis for saying that the absence of a notification will stand in the way of the person whose office is to be notified. There are some provisions which simply cast a duty on the executive Government to notify the holder of an office and have no further effect. Section 17 of the Municipal Administration Ordinance and Article 26 of the Basic Democracies Order are provisions of this character. Unless there be something in the language of a statute which shows that the person concerned will not com mence to hold an office till there is a notification in the Gazette, C a provision for a notification should not be interpreted as al condition precedent to the holding of an office. As Article 25 does not apply to the official members and proceedings were taken against the appellant under Article 25 the contention' of learned counsel that the proceedings taken against the appellant were not in accordance with law appeared prima facie to be a good one. However, a closer examination would show that there is a serious flaw in the argument. The appellant is no doubt an official member of the District Council, but it is to be remembered that proceedings which were being taken for his removal were not being taken for his removal from the membership of the District Council but for his removal from Chairmanship and member ship of the Union Committee. In accordance with Article 25 a person is to be removed from the membership of a Union Com mittee in case he happens to be a Chairman of such Committee only by such members of the District Council as are specified in Article 25 (4) (c). Although the membership is of the Union Committee the resolution for removal has to be passed by the District Council. So far as an official member of a District Council is concerned there is no provision at all either in the Basic Democracies Order or in any rules framed there under for his removal. The reason apparently is that the official members are only ex‑officio members and the moment they are removed from the office on account of which they are members of the District Council they cease to be members of the District Council. A Vice‑President of a Municipal Committee is member of the District Council in his capacity as Vice Chairman. The moment he ceases to be a Vice‑Chairman he ceases to be a member of the District Council. The member ship of the Municipal Committee is in turn due to a person being a Chairman of a Union Committee and if he ceases to be a Chairman of the Union Committee he ceases to be a member of the Municipal Committee. Proceedings for removal were in this case taken by the Collector who is the Controlling Authority so far as the Union Committees are concerned. It is clear that the proceedings which were being taken against the appellant were not for his removal from the membership of the District Council but for his removal from the membership of the Union Committee, and they were not proceedings for the removal of any official member, but for the removal of an elected member. A Union Committee consists of two kinds of members, i.e., appointed and elected, and the appellant was an elected member. Article 25 admittedly does apply to elected members. The contention of the appellant therefore that section 25 was not applicable fails. The next contention of learned counsel for the appellant is that the proceedings at the meeting for removal of the appellant were invalid. In this connection his main argument is that there was no proper opportunity to show cause. The matter is governed by rules 4, 5, 6 and 7 of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, which are reproduced below :‑ "

4. Notice of disability.‑(1) If the Controlling Authority is of opinion that any member has rendered himself liable to removal from the membership, under clause (2) of Article 25 of the Order, it shall, by notice in writing, call upon such member to show cause, within fourteen days of the receipt of the notice, why he should not be so removed. (2) On receipt of the notice under sub‑rule (1) such member may, within the specified period, offer such explanation as he may deem necessary or he may resign his office. (3) If the explanation offered under sub‑rule (2) is in the opinion of the Controlling Authority, not satisfactory or if the resignation tendered by the member is not accepted, the Controlling Authority shall‑ (a) in the case of an appointed member, take action under rule 5 ; and (b) in the case of an elected member, make a reference for taking proceedings as required by clause (4) of Article 25 of the Order. (4) The Controlling Authority, while making a reference under clause (b) of sub‑rule (3), shall send a copy of the reference to the member concerned.

5. Removal of appointed members.‑(1) If the explanation offered by an appointed member is, in the opinion of the Controlling Authority, not satisfactory, the Controlling Authority may hold such enquiry as may be necessary, and shall consult or obtain the approval of the authority in consultation with whom, or with whose approval, such member was appointed. (2) If the Controlling Authority is of opinion that the member concerned has rendered himself liable to removal, he shall pass an order removing such member from member ship and specifying the period, under clause (5) of Article 25 of the Order, for which he shall not be eligible for election or appointment to any Local Council.

6. Resolution about the liability to remove.‑(1) Where a reference has been made by the Controlling Authority under clause (b) of sub‑rule (3) of rule 4, the representative members mentioned in sub‑clause (a) or (b) or, as the case may be, such members of the District Council concerned as are the Chairmen of Union Councils, of the Town and Union Committees, and Vice‑Chairmen of the Municipal Bodies, in the District and the Vice‑Presidents of the Cantonment Boards therein, mentioned in sub‑clause (c) of clause (4) of Article 25 of the Order (hereinafter referred to as the aforesaid members), shall meet within such period as may be specified by the Controlling Authority for the consideration of the reference. (2) The aforesaid members, present at the special meeting, before transaction of business, shall elect one of them as the Chairman for the special meeting. (3) All questions arising for determination by the aforesaid members shall be decided by a majority of the members present and voting ; provided that in case of equality of votes, the Chairman shall have a second or casting vote. (4) The aforesaid members may take into consideration any representation submitted by the member concerned in this behalf. (5) The aforesaid members may take such legal advice as they may deem necessary and may allow any legal practitioner to appear before them on behalf of the members concerned or the Controlling Authority. (6) The aforesaid members shall finally pass a resolution to the effect that the member concerned is or is not liable to be removed under Article 25 of the Order. (7) A copy of the resolution, passed under sub‑rule (6), shall, within three days of the passing of the resolution, be forwarded to the Controlling Authority and the member concerned. (8) If according to the resolution, passed under sub‑rule (6) the member concerned is liable to be removed, the Controll ing Authority shall pass an order specifying the period, under clause (5) of Article 25 of the Order, for which the member concerned shall not be eligible for election or appointment to any Local Council.

7. The powers of the members present at the special meeting. The Controlling Authority and the aforesaid members shall have the same powers as are vested by the Code of Civil Procedure, 1908, in a Court trying a civil suit, and in parti cular, powers in respect of ‑ (a) discovery and inspection ; (b) enforcing the attendance of witnesses and requiring the deposit of their expenses ; (c) compelling the production of documents ; (d) examining witnesses on oath ; (e) granting adjournments ; (f ) receiving evidence taken on affidavit ; and (g) issuing commissions for the examination of witnesses and the summoning and examination suo motu of any person, whose evidence appears to be material." In accordance with rule 4 the Controlling Authority has to issue a notice to show cause why a member should not be removed. If the explanation submitted does not satisfy the Controlling Authority, then, in the case of an elected member, the Controlling Authority can only make a reference to the District Council. There is no provision for an enquiry by the Controlling Authority itself with respect to an elected member. On a reference the District Council has to pass a resolution under rule

6. There is no specific provision granting a right to the member concerned to be heard though in accordance with rule 6(4) the members of the District Council may take into consideration any explanation submitted by the mem ber concerned. There is no provision casting a duty on the District Council to make an enquiry, but it has powers of summoning witnesses etc., if it wants to do so. The relevant facts may here be stated. On 1‑7‑1961 the Controlling Authority had, as already stated, served a notice on the appellant to show cause why he should not be removed from the Chairmanship of the Union Committee as well as from the Office of Vice‑Chairman of the Municipal Committee. Subsequent proceedings for removal make no reference to the office of Vice‑Chairman and, therefore, that part of the notice may be kept out of consideration. The notice was accompanied by a charge‑sheet containing the following three charges (i) That the appellant had caused loss to Municipal Com mittee, Montgomery in the year 1958 by supplying to the Municipal Committee D. D. T. in bags which contained admixture of pebbles and pieces of small stones. (ii) That he was harassing the Municipal Staff and giving them directions which amounted to abuse of power and resulted in causing dissatisfaction in Municipal Staff. (iii) That ever since his election as Chairman, Union Committee, Montgomery, he had not called any meeting of the said Committee, nor had he sent any copies %f the pro ceedings in such meetings to the Controlling Authority. The appellant submitted a reply denying all these charges and claiming an enquiry. On the 12th August 1961, the appellant received notice that a special meeting of the District Council was to be held on the 21st August 1961, to consider the question of his removal. According to the appellant he was not allowed to remain present during the proceedings of this meeting and was actually turned out whereas the Secretary of the District Council who is not a member and who was exhorting the members to take a decision against the appellant remained present through out. It has further bee nalleged by the appellant that the Secretary when presenting the case on behalf of the Controlling Authority even told the members that he would disclose the names of those who voted against the resolution to the Controlling Authority. The version of the respondents on the other hand is that at the meeting the appellant was given a full opportunity of placing his case before the District Council and that he was directed to leave the meeting only when the members of the District Council intended to confer between themselves. The Secretary it was said was allowed to remain because he was to assist the District Council with reference to the record and facts. On the main question of fact as to whether the appellant was heard by the District Council there is a dispute between the parties and as this can be decided only on the basis of oral evidence it is not a matter on which a decision can be given in a writ petition. If the appellant was in fact heard by the District Council then in view of the rules which have been reproduced above we do not think he is entitled to any relief on the ground that he was not allowed a proper opportunity to show cause. The rules do not favour the contention that the District Council was bound to make any enquiry though it had the power to make one. With respect to the explanation submitted by the member concerned the provision is that it may be taken into consideration. The Legislature has not chosen to use mandatory words even with respect to the consideration of the explana tion and it cannot therefore be urged that the District Council was bound to hear the appellant. On the facts we are unable to hold that the appellant was not heard. A person has, in accordance with the principles of natural justice, a right that he will not be condemned unheard. Right to be heard may even imply a right to show cause which would involve a right to defend himself with the result that if the person concerned denies the charges an enquiry will have to be made. But the difficulty is that the provisions with which we are concerned do not support even a simple right to be heard. The use of the word "may" in rule 6 (4) is not consistent with the existence of a full right in accordance with the principles of natural justice to show cause. In the absence of a provision to the contrary we would presume that principles of natural justice were to be observed but here there is a provision to the contrary. The office involved is of importance and it is unfortunate that a person may be condemned and removed from the member ship of a Local Council without an opportunity to show cause bull the law has to be administered as it is. While the District Council has power to make an enquiry it is not bound to do so and the decision really depends on votes. There was an argument as to irregularity of the meeting based on the absence of a Chairman of Municipal Committee from the meeting and the presence of two Vice‑Chairmen. In accordance with Article 15 (2) of the Basic Democracies Order as it was originally enacted in 1959 the Chairmen of the Munici pal Committees and not the Vice‑Chairmen became ex‑officio official members of District Councils. Article 15 was amended by the Basic Democracies (Amendment) Order 14 of 1960 and Vice‑Chairmen of Municipal Committees were substituted for the Chairman so that henceforth the Vice‑Chairman became ex‑officio members of the District Council. However, Article 25 (4) of the Basic Democracies Order, which provides for the members who are to vote at the resolution for the removal of a Chairman of a Union Committee was not amended so as to bring in accord with the new amendment and Chairmen of Municipal Committees continued to appear in Article 25 (4) while Vice‑Chairmen were absent. The result was that the Vice Chairmen of Municipal Committees were not entitled to vote at the resolution. The contention of learned counsel for the appellant is that Chairmen of Municipal Committees should have been served with a notice and should have been present at the meeting while Vice‑Chairmen should not have participated in it. What actually happened is that Chairmen were served with a notice, but whether that was done or not is immaterial for according to Article 25 (4) it is those Chairmen of Municipal Committees who are member of the District Councils that can vote at this resolution. The absence of the Chairmen, therefore, from the meeting is not at all in violation of any law for none of them was henceforth a member of the District Council. There is no doubt an objection to the presence of two Vice Chairmen who were not entitled to vote in accordance with Article 25 (4) but one of these two was otherwise entitled to vote at this resolution because he was a member of the District Council in his capacity as a Chairman of a Union Committee. The vote of the other Vice‑Chairman, was no doubt cast improperly for he had not right to vote. But that does not affect the validity of the resolution for removal because the voting was eight to two and the absence of one vote will not make any difference. It is contended by learned counsel for the appellant that the presence of even one Vice‑Chairman who was not entitled to vote should be a ground for setting aside the resolu tion, because he may have influenced the other members, but this only means that there was an irregularity and the resolution could be set aside on the ground of the irregularity only if it was material. Onus is on the appellant to show that as a matter of fact this irregularity affected the result of the voting. Admittedly there is nothing at all on the record to prove that the presence of the Vice‑Chairman who had no right to vote in any way affected the resolution. The mere presence of a member not entitled to vote is not itself sufficient for setting aside the resolu tion. This appeal fails and is dismissed, but there is no order as to costs. K. B. A. Appeal dismissed.