P I D 1970 Dacca 350 (PLP)

SALAHUDDIN AHMED, J.

‑I have listened to the Judgment delivered just now by my learned brother M. R. Khan, J. With great respect to my learned brother I feel myself unable to agree with the answer he has given to the question referred to the Full Bench. The question referred to the Full Bench for consideration is whether sub‑rule (3) of the rule 2 of the East Pakistan Local Councils (Vote of No‑Confidence) Rules is mandatory or directory. The facts upon which the question has arisen may briefly be stated as follows: The petitioner as Chairman of a Union Council having failed to convene the special meeting in accordance with rule 2 (3) (1) of the East Pakistan Local Councils (Vote of No‑Confidence) Rules, hereinafter called the rules, in response to a requisition by the requisite number of members of the Union Council to consider a resolution of no‑confidence against the Chairman of the Union Council, the Controlling Authority by its notice dated 25th June 1966, convened the special meeting on 7th July 1968, that is, beyond the prescribed period 12 days too late. In the meeting held on the 7th July 1966 a no‑confidence resolution was passed against the petitioner. The petitioner, who himself deliberately failed to convene the meeting under the rules having felt aggrieved by the passing of the aforesaid no‑confidence resolution, challenged the legality of the resolution before this Court upon an application under Article 98 of the Constitution and obtained a Rule nisi. The legality of the passing of the no‑confidence resolution has been disputed on the ground that the special meeting convened on the 7th July 1966 was beyond the period prescribed under rule 2 (3) (ii) of the Rules and it was held without first having obtained from the Government extension of time. A Division Bench of this Court presided over by the learned Chief Justice, which heard the rule, having been inclined to take the view that the provisions of rule 2 (3) of the Rules were mandatory and not directory as have been held by two different Division Benches of this Court in cases reported in 19 D L R 761 and 461, made the present reference. Mr. Abdur Rashid learned Advocate appearing on behalf of the petitioner has contended that the rule is directory. He 44s based his contention mainly upon the language of the rule. In support of his contention he has cited a case reported in 16 D L R 536, which is not applicable to the present case inasmuch as rule 3 of the Rules was never complied with. Rule 3 provides that at least one week before holding the meeting the notice of the meeting along with certain other matters shall be given to every member of the Council. This notice was never sent to one of the members, namely, the Chairman of the Union Council at all. Learned Advocate‑General appearing on behalf of the State has on the contrary strenuously contended that the rule is mandatory. In support of his contention he has placed before us a number of decisions, foreign as well as Pakistani. I shall hereafter discuss these cases. On the facts of the case the question that really calls for consideration is whether the aforesaid no‑confidence resolution passed at a special meeting convened by the Controlling Authority on the 7th July 1966, without the prior sanction of the Pro vincial Government to hold the meeting on that day is illegal and without jurisdiction. Consideration of the question involves the process of finding out the true intent and scope of the rules. The rules purport to have been framed in exercise of the powers conferred under Article 89 read with Article 25‑A of the Basic Democracies Order, 1959, hereinafter called the Order. Rule 89 authorises the Provincial Government to make the rules. Article 25‑A which, inter alia, deals with the, passing of a no‑confidence resolution against the Chairman of an Union Council and its effect, provides the following in clause (3) :‑ "No Court shall enquire into or question the validity of any motion of no‑confidence passed against a Chairman or Vice‑Chairman." The relevant provisions of the rules apart from the rules as a whole that call for consideration in this respect are as follows:‑ Rules 2 (3), (f), (ii) and 5 (1) (b). "(3) (i) The Chairman shall convene the special meeting to be held within a fortnight of the receipt of the requisition; (ii) If the Chairman fails to so convene the meeting or the meeting is not held within the aforesaid time, the Controlling Authority shall convene the said special meeting within the following fortnight Provided that Government may extend the time of holding the special meeting by the Controlling Authority." "5 (1) (a) In case the requisite two‑thirds number of the existing members do not attend the meeting within one hour of the appointed time, the proposal for the vote of no confidence shall, subject to confirmation by the Controlling Authority, be deemed to have been moved and failed and the meeting shall accordingly be terminated with an open declara tion in presence of the members and a note recorded to this effect by the Presiding Officer who shall forthwith submit his report to the Controlling Authority. (b) The Controlling Authority shall, within 48 hours of receipt of such report from the Presiding Officer, confirm the same and issue formal orders accordingly communicating the said orders to the local council and officers concerned: Provided that when the Controlling Authority is satisfied that two‑thirds number of the existing members could not attend the meeting due to reasons and circumstances beyond their control, he may withhold his confirmation and himself convene a fresh meeting of the Councillors concerned for moving the vote of no‑confidence to be held within the fortnight of the date of issue of the order ; and the provisions of rules 2, 3 and 4 shall, so far as applicable apply." Reading the rules as a whole with particular reference to the provisions quoted above, and the provisions of Article 25‑A (3) of the order it seems to me that the purpose of the rules is to consider and dispose of the resolution of non-confidence quickly. To achieve this end the author of the rules put time limits within which the Chairman, and failing him the Controlling Authority must call a special meeting to consider such a resolution. The essence of the rules is to hold the special meeting and dispose of the no‑confidence resolution without an) loss of time. Apparently this is the reason why the Legislature under Article 25‑A (39 debarred a Court from enquiring into or questioning the validity of the resolution of no confidence. Proviso to Article 25‑A also prohibits a Motion of no‑confidence being moved against the same Chairman for a period of twelve months from the date on which an earlier such Motion failed. Rule 5 (1) (b), proviso indicates that under certain circumstances the Controlling Authority can convene a first meeting of the Councillors beyond the prescribed fortnight in rule 3 (ii) without Reference to the Government. It appears that prior to 26th February 1964, rule 2 (3) did not put any time limit upon the Controlling Authority to call the special meeting on the failure of the Chairman to convene the meeting within a fortnight of the receipt of the requisition. This was obviously a lacuna, and it bas now been remedied. The fact, however, that a time limit has now been put supports the view that the Legislature intended that the special meeting for consideration of a no‑confidence resolution should be held quickly and the resolution disposed of. The following tests for deciding whether a particular provision of a Statute is directory or imperative have been mentioned by the Privy Council in the case of Montreal Street Railway Co. v. Normandin (1917 A C 170) "The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Edn., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." These tests have been consistently followed in the Indo‑Pak. sub‑continent. Similarly in the cases of Caldow v. Pixell ((1877) 2 C P D 562) and Phillips v. Golf (17 Q B D 805) it has been held that the time limit mentioned in similar circumstances is directory only and not imperative. In Maxwell, l1th Edn., p. 364 on the basis of two cases reported in 1926 A C 619 and 1939 A C 277 (P C) it has been stated that the whole scope and purpose of the statute under consideration must be regarded. Crawford on the `Construction of Statutes' at page 529 while dealing with Statutes pertaining to official action says inter alia. "As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory or if nothing is stated regarding the consequences or effect of non‑compliance, the indication is all the stronger that it should not be considered mandatory". In the case reported in P L D 1960 Dacca 438 the Court considered section 57of the Pakistan Criminal Law Amendment Act, 1958 which provides that previous statements of witness to be examined by the prosecution at the trial shall be supplied to the accused at least one week before the commencement of the trial. Such statements in the case under report were supplied actually only five days before the commencement of the trial. It was held: "Where an Act orders a thing to be done by a public body or a public officer and appoints specific time within which it is to be done, then the enactment making such provision is directory only and might be complied with even after the pres cribed or appointed time. The requirement of subsection (7) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1958 for the supply of copies of previous statements provides only for the performance of a public duty over which others have no control. In such circumstances the provisions should be regarded as being in the nature of mere instructions for the guidance of those on whom the duty is imposed and not as a mandatory provision entailing the vitiation of the resultant acts as a consequence of non‑compliance. However, if any prejudice or injustice is caused by such non‑compliance to any accused person, the Court will not hesitate to set aside the trial and, if necessary, order a re‑trial. Montreal Street Railway Company v. Normand L R 1917 A C 170; Biswanath Khemka v. Emperor A I R 1945 F C 67 and Interpretation of Statutes by Maxwell, p. 376 ref." In P L D 1959 Dacca 382 it was held that failure on the part of the special Judge to make the reference under section 52 (1) of East Bengal State Acquisition and Tenancy Act (XXVIII of 1951) within 90 days by itself does not render the reference competent. The provision that the reference has to be made within 90 days is not mandatory but directory. In A I R 1945 F C 67 it has been held that the direction laid down in section 256 of the Constitution is directory and not mandatory, and non‑compliance would not render an appoint ment otherwise regularly and validly made ineffective. In all these cases the language of the particular law was imperative as in the present case. I think the principles laid down in the cases cited above are clearly applicable to the rule under consideration. The prescription of rule 2 (3) (ii) is a direction upon a public officer to do a public duty, namely, convene a special meeting within a specified time. The invalidation of the no‑confidence resolution would work serious general inconvenience to persons who have no control over the Controlling Authority who has been charged with the duty of convening the special meeting.. Furthermore the invalidation will far from‑ advancing the purpose for which the rules have been made will tend to defeat the object of the rules. In these circumstances, I think, the prescriptions are mere instructions for the guidance of the Controlling Authority, and they are therefore, directory only. It is also significant to note that the rules are silent about the consequences or effect of non compliance with rule 2 (3) (ii), and this is yet another indication that the rule is directory. It is said that if the rule be directory the Chairman or the Controlling Authority may call the meeting at any time he likes according to his discretion. This confuses the two concepts of "discretionary" and "directory". The Chairman or the Control ling Authority has no discretion in the matter of convening the meeting. He has to convene the meeting within the pres cribed time. The question, however, is if for any reason of inadvertence or otherwise the meeting has been convened some time after the prescribed period, will the meeting be without jurisdiction so as to invalidate its proceedings. In my opinion having regard to the principles laid down in the cases mentioned above it will not be so. It has been contended that such construction will make the proviso to rule 2 (3) (ii) redundant. This is not true. The proviso has its purpose, and this is to serve as a check upon the Controlling Authority that he calls the meeting within the prescribed time. If he fails to do so he has to explain his lack of diligence in the matter to the Provincial Government, which of course is not desirable for a responsible officer like the Controlling Authority who is invariably a Sub‑Divisional Officer. Non‑compliance with the rule may entail a departmental action against the Controlling Authority but it does not vitiate the proceedings of the meeting convened by him. There is no likelihood of any conflict either. If the Chairman fails to call the special meeting within the prescribed time the Controlling Authority acquires a right to convene the meeting himself. If the Chairman is honest he will convene the meeting according to law. If he is not so he will put off the evil day as long as possible and will seldom call the meeting at all. Once, however, the Controlling Authority has convened the meeting the Chairman cannot again do so. After all the entire purpose of the rules is to hold the special meeting to consider the no‑confidence resolution. The office of the Chairman is an elective one, and the fact that 2/3rd of the members of the Union Council have submitted requisition for considering a resolution of no‑confidence against him shows that the Chairman has lost the confidence of the council. Acting, therefore, on democratic principles, the Legislature has provided that such a resolution should be considered and disposed of at a special meeting of the Union Council without loss of time so as to pave the way for a smooth and democratic working of the Council which indeed is the main object and purpose of the rules. If the meeting of 7‑7‑66 be now declared a nullity the result would be that the matter which has already been delayed by the action or inaction of the authority for more than two years would be further delayed and the only person who will benefit from such a course is the petitioner himself. It would be putting premium on disobedience of the rules. In fact it would reward the Chairman for his own disobedience in not complying with the rules. Furthermore this course will amount to penalising the people for whose benefit the rules have been framed without any fault on their part and giving lease of life to the Chairman for indefinite period with consequent evil effect upon the democratic working of the Union Council itself. How can the Chairman be expected to discharge his duties and the council to function efficiently when the Chairman has lost confidence of the Council. Such unreasonable situation could never have been contemplated by the Legislature. In the case of Edwick v. Sunbury on Thames Urban District Council (L R (1962) 1 Q B D 229 ) in contravention of the Town and Country Planning General Development Order and Development Charge Applications Regulations, 1950 the local planning authority refused the plaintiff's application for permission to use his land for a particular purpose more than two years after the application had been made. Under the law 3 months and 2 months as the case may be is the time within which a reply to such application shall be given. It was held that on a true construction of the provisions of law in this respect they were mandatory, rather than directory, because, first, the language of the law suggested of such an intention ; secondly, it was consonant with the general scheme of the act and the order that there should be stringent terms on which the local planning authority should deal with the application ; and, thirdly, a conclusion to the contrary may result in a grave injustice to the land owner. The notice of refusal of planning permission, therefore, was held void. It is evident that while construing similar provision of law not only the language of the law but also the general scheme of the act as well as the consequences that may follow non- compliance with the law should be considered for the purpose of deciding whether a particular law is mandatory or directory. In the case before us, as I have already noticed, it is not consonant with the general scheme of the rules that failure to strictly comply with the terms of rule 2 (3) (ii) so far as time is concerned should vitiate the proceedings of the meeting. Fur thermore a conclusion to the contrary may result in grave injustice to the majority members of the Council who requisitioned the meeting, and is likely to defeat the very object of the rules. There is no evidence that any prejudice has been caused to any party. If the Controlling Authority has for some reason failed to call the meeting within the specified time and he does not obtain from the Provincial Government an extension of time for holding the meeting an impasse may be created with the result that consideration of the no‑confidence resolution will be held up indefinitely with resultant evil effect upon the working of the Union Council. Such a situation, in my opinion, was never contemplated by the Legislature. For the reasons stated above I find no reason to change my views which I expressed as a member of two different Division Benches in the cases reported in 19 D L R 761 and

469. I, therefore, answer the question referred to the Full Bench, thus :‑ The prescriptions of sub‑rule 3 (ii) of rule 2 of the East Pakistan Local Councils (Vote of No‑Confidence) Rules are direc tory and not mandatory in the sense that a mere non‑compliance with the sub‑rule as to time limit does not vitiate the no n-confidence resolution passed in the special meeting convened by the Controlling Authority beyond the prescribed time. K. B. A. Answer accordingly.