P L D 1967 Lahore 583 (PLP)

ANWARUL HAQ, J.‑This order will dispose of Writ Petitions Nos. 1837 and 1838 of 1966, which concern the same matter, namely, a meeting which has been convened for the 31st of October 1966, by the Chairman of the Municipal Committee of Sargodha to consider a motion of no‑confidence, against its Vice‑Chairman, Mian Khan (petitioner in Writ Petition No. 1837). The petitioners in the other case, namely, Muhammad Yunus and others are Members of the Union Committee Ward No. 8, Sargodha, and petitioner No. 1, Muhammad Yunus intends to offer himself as a candidate for the Chairmanship of this Union Committee at the election which is to be held on the 29th of October 1966.

2. One ground is common between these two petitions, namely, that Muhammad Yunus petitioner No. 1 in Writ Petition No. 1838, will not be able to participate in the meeting of the Municipal Committee, Sargodha to be held on the 31st of October 1966, as his election as Chairman of the Union Committee Ward No. 8, which will be held on Saturday, the 29th of October 1966, cannot be gazetted by the 31st of October 1966; nor can he take the oath as an ex officio member of the Municipal Committee, by virtue of his expected election as Chairman of the Union Committee, by that date and, therefore, he will be deprived of the valuable right of participating in that meeting. The co‑petitioners of Muhammad yunus are his supporters, and they feel that by juxtaposition of the dates of the two meetings the Chairman of the Municipal Committee of Sargodha has acted in a mala fide manner so as to prevent their prospective representative, namely, Muhammad Yunus, from participating in the meeting of the Municipal Committee to be held on the 31st of October 1966. [1]

3. It appears from the petition of Khan Mian Khan, although it is not specifically so stated, that he expects Muhammad Yunus (petitioner in Writ Petition No. 1838) to support him at the meeting which has been convened to consider the motion of no‑confidence against him. Before dealing with the other contentions which have been raised by Mr. Ijaz Hussain Batalvi in Mian Khan's petition, we think it would be appropriate to consider the contention which is common to both the cases. It is conceded that the Chairman of the Municipal Committee Sargodha is the Controlling Authority for the Union Committee Ward No. 8, and he has the power and jurisdiction to fix a date for the election of the Chairman of that Union Committee. He has named the 29th of October 1966 for this purpose. The petitioner Muhammad Yunus had represented to the Chairman of the Municipal Committee of Sargodha that the date of his election as Chairman should be so fixed as to allow sufficient time for his election to be gazetted and for him to be sworn as a Member of the Municipal Committee thus enabling him to take part in the motion of no‑confidence against Mian Khan, Vice‑Chairman of the Municipal Committee; but that application was refused by the respondent. In other words, the only prayer made to the statutory authority concerned was for a change in the date of the election of the Chairman of the Union Committee of Ward No. 8, and no prayer was made for altering the date of the meeting of the Municipal Committee, Sargodha convened for considering the motion of no‑confidence against Mian Khan. On this short ground alone we consider that the petition of Muhammad Yunus and others can be dismissed, as they have not made the necessary request to the statutory authority in this behalf.

4. Even otherwise, the discretion to fix the dates of the two meetings in question is vested by law in the Controlling Authority in one case and the Chairman of the Municipal Committee in the other, and mala fides are not to be presumed. There is no legal provision laying down the interval of time which must elapse between meetings of this kind. The right which Muhammad Yunus is asserting is clearly in the nature of speculative or conjectural right. He hopes that he will be elected as Chairman of the Union Committee Ward No. 8 at the election to be held on the 29th of October 1966, but it is also possible that he may not be so elected. Unless and until such time as he is elected as the Chairman of this Union Committee, he does not become an ex‑officio Member of the Municipal Committee, and no right would accrue to him until that time to participate in the deliberations of the Municipal Committee, or to pray for a postponement of any possible meetings of the Committee, which may be convened for various purposes. We consider, therefore, that no justification is made out for interfering with the choice of dates made by the Chairman Municipal Committee, Sargodha for the two meetings in question. Writ Petition No. 1838 of 1966 is, therefore, dismissed in limine.

5. Coming now to the other contentions raised on behalf of Mian Khan, it may be stated that in the first place, the authority of the respondent Sardar Asghar Ali, P. C. S. to act as Chairman of the Municipal Committee, Sargodha is challenged on the ground that although he took over as such Chairman at an earlier date, yet he took the oath of office as Member of the Municipal Committee only on the 21st of October 1966, and accordingly, the order issued by him on the 19th of October 1966 convening the meeting of the Municipal Committee for the 31st of October 1906, is without lawful authority. In the second place, it is submitted that the first motion of no‑confidence having been considered at a meeting of the Municipal Committee held on the 2nd of August 1966, no further motion in this behalf could be moved until after the expiry of six months from the date of the earlier meeting, as provided in the proviso to subsection (3) of section 11 of the Municipal Administration Ordinance, 1960.

6. The Chairman of a Municipal Committee is appointed by the Provincial Government under section 10 of the Ordinance which lays down that: "for every Municipal Committee, there shall be a Chairman, who shall be appointed by, and hold office during the pleasure of, the Government." Subsection (2) of this section lays down that: "the Chairman shall be an official Member and shall be so regarded for purposes of clause (c) of section 9." Section 9 of the Ordinance deals with the composition of the Municipal Committee and prescribes that a Municipal Committee shall consist of the elected members and such official members and appointed members, if any, as the Controlling authority may in the prescribed manner fix. The oath of office is prescribed by section 13 of the Ordinance which enjoins every elected member to make, and subscribe to, an oath in the prescribed form before taking his seat. These are the only provisions in the Ordinance itself dealing with the office of the Chairman and the administration of oath to the members of the Municipal Committee, and they do not anywhere pres cribe that a Chairman shall take an oath of office before entering upon his duties as such Chairman.

7. However, Mr. Ijaz Hussain drew our attention to the West Pakistan Municipal Committee (Assumption of Office) Rules 1960, made under section 12 of the Ordinance, which deals with the subject of the term of office of the Municipal Committee. In these rules, it is laid down that as soon as may be after the names of the members of a Municipal Committee have been notified in the official Gazette, the Controlling Authority shall appoint a date for the assumption of office by the Municipal Committee. Rule 4 of these rules prescribes that the first meeting of the Municipal Committee shall be presided over by the Chairman. Rule 5 then lays down that: " At the first meeting of a Municipal Committee the Chairman shall take an oath on the form specified in the Schedule and thereafter administer the oath of office to all members present at the meeting turn by turn." It is submitted by the learned counsel for the petitioner that rule 5 makes it clear that even an appointed ‑Chairman is under an obligation to take an oath in the prescribed form, and that it was in pursuance of this rule that the respondent did in fact, take an oath on the 21st of October 1966.

8. The Assumption of Office Rules, to which the learned counsel has referred, clearly relate to the first meeting of a Municipal Committee which is constituted after a fresh election and it is for this reason that rule 5 of these rules con templates the administration of oath to all members present at the meeting turn by turn. It is true that this rule does contemplate that the Chairman shall first take the oath in the prescribed form, but the oath is as a Member of the Committee and not as a Chairman. In the unamended section 13 of the Ordinance, as it stood before the promulgation of the Municipal Administration Ordinance (West Pakistan Amendment Act) 1965, the oath of office was necessary even for an appointed member, and accordingly it seems to us that rule 5 of the Assumption of Office Rules, in so far as it relates to the taking of oath by the Chairman, gave effect to the provisions as contained previously in section 13 of the Ordinance. A reference to the oath which was actually taken by the respondent also shows that he subscribed to this oath in his capacity as a nominated or an appointed member and not as a Chairman of the Municipal Committee. Now, that sect on 13 as amended in 1965, has dispensed with the requirement of oath in the case of a nominated member, we cannot read in the relevant statute any requirement that an appointed Chairman shall take or subscribe to any oath whatsoever before entering upon his duties as such Chairman. Whether this state of affairs is desirable or not is not for us to say. As the different provisions of law stand at present we are satisfied that there is no prescription enjoining the appointed Chairman of a Municipal Committee to take any oath of office as such Chairman before entering upon his duties as such Chairman. As a result, we cannot hold that the order issued by the respondent on the 19th of October 1966, convening a meeting of the Committee to be held on the 31st of October 1966, is without lawful authority simply for the reason that by that date he had not yet taken the oath of office.

9. We now turn to the next contention based on the proviso to subsection (3) of section 11 of the Ordinance. This proviso is to the effect that: "where a motion of no confidence against a Chairman has been moved and has not been carried, no similar motion shall be moved until after the expiry of six months from the date the motion was moved." The previous motion of no‑confidence was to be considered at a meeting of the Municipal Committee held on the 2nd August of 1966, but it was postponed under a direction issued by the Commissioner, Sargodha Division on that very day. It seems to us that in these circumstances it is clear that it is not a case where it can be said that the previous motion of no‑confidence against the Chairman "had been moved and no been carried." The situation contemplated by the phrase "has not been carried" would arise only if the members present have been given an opportunity of voting upon the motion presented before them, but if before the voting could take place a superior authority intervenes and prevents the consideration of the motion in question, then it is clearly a case where the motion has not been considered at all in the sense contemplated by the proviso to subsection (3) to section

11. Mr. Ijaz Hussain was good enough to state frankly that it was not even clear whether the motion was in fact moved as such before the order of the Commissioner post poning its consideration was received. This circumstance further lends support to the view that it cannot be said at all that the motion of no‑confidence was moved and not carried at the meeting held on the 2nd of August 1966. Such being the case, the embargo placed by the proviso in question on a second motion of no‑confidence within a period of six months is not attracted in this case.

10. For the foregoing reasons, we see no merit in petition No. 1837 as well, and dismiss the same in limine. K. M. A. Petition dismissed. [1]