P L D 1967 Lahore 1040 (PLP)

S. A. MAHMOOD, J.‑This petition under Article 98 of the Constitution of Islamic Republic of Pakistan is by Ghulam Moeen- ud‑Din praying that it be declared that the order of the Election Tribunal (respondent No. 1) dated the 18th of February 1967 is without lawful authority and that the respondents be restrained from interfering with the petitioner's right and title to function as duly elected Chairman of Union Council No. 70 (re‑numbered as 89), Mahar Sharif, Tehsil Chishtian, District Bahawalnagar. 2. In the first meeting of the Union Council in question held on the 18th of January 1966 at 12 noon, which was attended by seven out of nine members of the Union Council, Ghulam Moeen‑ud‑Din petitioner was unanimously elected as Chairman of the Union Council, Sahibzada Ghulam Nabi respondent, who did not attend the meeting, filed an election petition under rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, challenging the petitioner's election alleging that notice of the date of the election was neither given nor served on him or any member of the family which was violation of rule 5 of the West Pakistan Local Councils (Assumption of Office) Rules, which was mandatory in character, and that the election was held secretly when the petitioner was a candidate for election as Chairman and had the support of the majority of the members of the Union Council. He prayed for these reasons that the election of the petitioner be declared null and void and that a re‑election be ordered. As his own witness, he stated that he wanted to contest the election of Chairman, but he did not receive any notice of the meeting. His witness Muhammad Sharif Patwari deposed that having been deputed to effect service of the notices of the meeting on the members of the Union Council when he went to serve the notice on respondent No. 2 on the 17th of January 1966, he came to know that he had gone to Pindi, and made an endorsement to this effect on the notice. The petitioner produced in rebuttal four of the members of the Council, and an affidavit from another member, namely Muhammad Saeed. Apparently, therefore, he had the support of these members. The members of the Union Council who appeared as his witnesses were Muhammad Khan (R. W. 1) Ghulam Farid (R. W. 2), Falak Sher (R. W. 3) and Muhammad Yusaf (R. W. 4). They deposed that respondent No. 2 had approached them to convass for their votes for him in the election of the Chairman. Their evidence was intended to show that he was not unaware of the date of the meeting. The petitioner also appeared as his own witness. The Election Tribunal came to the conclusion that rule 5 of the West Pakistan (Assumption of Office) Rules, 1.960, was mandatory and as three days' clear notice of the first meeting of the Union Council was not issued, as the notice was not served on 14th January 1966, and as the service of the notice was not in accordance with Article 95 of the Basic Democracies Order, and as the petitioner himself wanted to be a candidate for Chair manship, the election was not validly held. The tribunal, therefore, declared the election of the petitioner null and void, and ordered that a fresh election should be held as soon as was possible. 3. The first question, which falls for determination in this case is whether the failure to issue a notice of the meeting with three days' clear notice and failure to effect its service in accor dance with Article 95 of the Basic Democracies Order invalidated the election of the petitioner. For the determination of the first question the relevant rule 5 of West Pakistan Assumption of Office Rules, 1960, reads:‑ "The Controlling Authority shall, on three days' clear notice in the case of Union Council, Union Committee or Town Com mittee and seven clear days' notice in the case of other Local Councils, addressed to all members of the Local Council, convene the first meeting on the date appointed under rule 4." The requirement of this rule is the convening of the first meeting of a Union Council on addressing three days' clear notice. There was no evidence before the Election Tribunal that the notice of the first meeting was not issued on three days' clear notice. In fact, the order of the Collector of Bahawalnagar District convening the meeting shows that it was issued on the 8th of January 1966. Whereas the Election Tribunal had to confine itself to the question of issue of the notice, it invalidated the election party on the ground that this notice was sent for service of respondent No. 2 on the 17th of January 1966, and was not served by 14th January 1966, with 3 clear days in between the date of the meeting being the 18th of January 1966. Service of the notice on the petitioner by the 14th of January 1966 was not strictly the requirement of rule 5, for its emphasis is on the addressing of three days' clear notice, which condition was not held to have been disregarded. It is true that although the emphasis in the rule is on addressing of the notice to the members, the intention also is that it should be served on the member, but a failure to serve the notice on the member on three days' clear notice cannot invalidate the election unless it is shown in terms of rule 7 of the West Pakistan Election of Chairman Rules that it has materially affected the result of the election. 4. That the failure to serve the notice to comply with rule 5 is not mandatory, and cannot invalidate the election, is plain from the fact that if the members attend the meeting and an election is held, the meeting is not invalidly convened. There is no provision in the Rules attaching a penalty to the non -observance of rule 5. Besides, rule 7 (3) of the West Pakistan Local Councils (Assumption of Office) Rules provides that when the oath of office has been taken by all members present in the meeting the Local Council shall be deemed to have assumed office and if a member is unable to be present or is absent, he takes his seat when such member has taken the oath under its sub‑rule (4). Therefore, the assumption of office of the members is dependent upon the administration of the oath of office and not on the regularity of the convening of the meeting or even the service of the notice for convening the meeting. Rule 5 of these Rules is, therefore, directory and not mandatory. Rule 3(2) of the West Pakistan Basic Democracies (Vote of No‑Confidence against Chairman) Rules, 1963, requires seven clear days' notice to be given for the meeting. In interpreting this rule a Division Bench of this Court has held in Abdul Majid v. The Province of West Pakistan and others (P L D 1964 Lah, 531) that "though the province is couched in words of command, but it is directory in nature and its non- compliance and disobedience does not nullify all incidents connected therewith or consequences flowing there from." Another Division Bench of this Court also took the view in Ch. Sadiq Ali v. Collector, Gujranwala and another (P L D 1964 Lah. 255) that the rule cannot be deemed to be mandatory one so as to invalidate the proceedings of the election. The same is the position of rule 5 of the assump tion of Office Rules. It could not, therefore, be held that there was a violation of this rule or that it was a mandatory provision. In fact, it has been shown that there was no violation, as notice of the meeting to be held on the 18th of January 1966 was issued on the 8th of January 1966, and there is nothing in the rules relating to the period within which the notice had to 'din be served. 5. It is difficult to see how Article 95 of the Basic Democracies Order has not been complied with. It provides as under: "95 (1) Where anything is required to be done or not to be done by any person under this Order of the rules or by laws, a notice shall be served on the person concerned speci fying the time within which the requirement shall be complied with. (2) No notice shall be invalid for defect of form. (3) Every notice shall, unless otherwise provided, be served or presented by giving or tendering the notice or sending it by post to the person for whom it is intended or by affixing it on some conspicuous part of his place of abode or business. (4) A notice intended for the public in general shall be deemed to have been sufficiently served if a copy thereof is axed in such public place as may be determined by the local council concerned." In the present case, the notice was taken for service to the petitioner, but he could not be found. Therefore, the notice was not served on the petitioner, but it could not be said that there was a violation of or non‑compliance with this Article. 6. The only question, which remains for determination in this case is whether by reason of the non‑service of the notice on the respondent, there was a material irregularity or other sufficient reasons for which the election could be set aside by the Election Tribunal. Rule 7 (3) provides that "the Controlling Authority or the officer appointed by the Government under sub‑rule (1), as the case may be, may, after such inquiry as it or he may consider necessary, uphold the election, or award any declaration prayed for under sub‑rule (2) for any material irregularity, or any other sufficient reason to be recorded." There is an explanation to this sub‑rule that "material irregularity" means any non‑compli ance with the provisions of the Order or these Rules which materially affects the result of an election. Unless, therefore, there is a material irregularity or other sufficient reason, which in the opinion of a reasonable person is of sufficient importance and weight to justify annulment of the election as held in Mehar Allah Yar v. Syed Hasan Jahanian Shah Gardezi (P L D 1961 Lah. 247) the election of the petitioner could not be set aside. When the petitioner was unanimously elected as Chairman by seven of the members of the Union Council, who were present in the first meeting, the absence of the respondent and one of the other members, by reason of non‑service of notice of the first meeting on them, was and could in no way be material. It could not affect the result of the election. It made no difference that the petitioner intended to seek election, because it is plain that he was not able to gather sufficient support, since 7 of the members unanimously elected the petitioner. It cannot even be said that there was any sufficient reason for avoiding the election of the petitioner. The Tribunal, therefore, acted in excess of its jurisdiction in declaring the election of the petitioner void and in ordering a fresh election. 7. We, therefore, accept this writ petition and declare the order of the Election Tribunal to be without lawful authority and of no legal effect with the result that the petitioner remains Chairman of the Union Council concerned. We leave the parties to bear their own costs of this petition. K. S. A. Petition accepted.