1991 PLP 2243 (MLD)

(a) ............................................................... (b) the Deputy Commissioner concerned in the case of a Municipal Committee or a Town Committee; and (c) ............................................................... (3) ............................................................... (4) ............................................................... Rule

3. Convening of meeting to consider the motion of no-confidence.-- (1) The authority to whom the requisition under Rule 2 is made shall, within 7 days of the receipt of such requisition, convene a special meeting of the local council to consider the motion of no- confidence. (2) A seven days notice shall be given for a meeting convened under sub-rule (1). (3) ............................................................... (4) The notice of the meeting shall be published by affixing it on a Notice Board of the office of the local council and may also be made known to the members by any of the following means:-- (a) an advertisement or a Press Note in a newspaper commonly read in the area of the local council; or (b) a radio announcement; or (c) beat of drum; or (d) such other mode as may be considered appropriate by the Presiding Officer. (5) ............................................................... (6) ............................................................... Rule

5. Motion of no-confidence.

(1) At the meeting convened under Rule 3, any member who has signed the requisition under sub-rule (1) of Rule 2 may move the no-confidence motion against the Chairman or the Vice- Chairman, as the case may be. (2) If the motion has been seconded, it shall be open to the consideration of the local council and any member may speak for or against the motion. (3) No member shall speak on the motion more than once. (4) The Chairman or the Vice-Chairman against whom a motion of no -confidence has been moved shall have the right to offer a personal explanation either verbally or in writing, and where a written explanation is offered, it shall be circulated amongst the members and shall form part of the record of the proceedings of the meeting. (5) If at the meeting convened under Rule 3

(i) no member turns up; or (ii) no member moves the no-confidence motion, the no-confidence motion shall be deemed to have been moved and rejected. From the plain reference to Rules 2, 3 and 5 shows that the no- confidence motion has to pass through various phases. Rule 2 deals with requisition for convening a meeting for moving a vote of no-confidence. It postulates that such motion shall be by a written requisition signed by not less than 1/2 of the-total number of local councillors and shall require the convening of a special meeting to consider the motion of no-confidence against the Chairman/Vice-Chairman. This requisition shall be addressed to the Deputy Commissioner concerned in the case of Municipal Committee or a Town Committee: Under Rule 3, the Deputy Commissioner is mandated to convene a special meeting to consider such motion within 7 days of the receipt of such, requisition. Under sub-rule (2) of Rule 3 a 7 days' notice shall be given for a meeting convened under sub-rule (1). It further provides the means of effecting service on Chairman/Vice-Chairman and members i.e. through an advertisement or a Press note in a newspaper usually read in the area of the local council or by radio announcement or by beat of drum or by such other mode as may be considered appropriate by the Presiding Officer. If this exercise is done then comes the Rules 5 and 6 which relate to the proceedings of motion of no-confidence and procedure for voting. The contention of the petitioner is that neither she was given 7 days' notice nor she was afforded opportunity to explain her position qua the allegations contained in no-confidence motion. This question came up for consideration in Sadiq Ali v. Collector, Gujranwala and another P L D f

964. Lah.

255. It was held by a Division Bench of this Court consisting of SA. Mahmood and Muhammad Akram, JJ, as under:-- "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 this was a mere irregularity and did not affect the result or prejudice the petitioner. No prejudice has been alleged or complained of. The rule cannot be deemed to be a mandatory one, so as to in validate 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." The same view was followed in Abdul Majid v. Province of West Pakistan and others P L D 1964 Lah.

531. The relevant passage of the judgment of his Lordship Mr. Justice Sajjad Ahmad (as he then was) is as under:-- "As regards the construction of sub-rule (2) of Rule 3 it will be seen again that it is expressed in affirmative language `seven clear days' notice shall be given...'. The word `clear' emphasises that both the terminal days, i.e. the day on which the notice is given and the day on which it is received, have to be excluded. I consider that the sub-rule is couched in words of command but the command is directory in nature and is not absolute and obligatory in the sense that its non-compliance or disobedience nullifies all the incidents connected therewith and the consequences flowing therefrom:' The view taken in the aforenoted cases, was approved by the Supreme Court of Pakistan in Allah Bachaya Khan v. The Controlling Authority (Collector), D.G. Khan and another 1969 S C M R

127. In this case this rule relating to 7 days' notice was held to be directory. The same principle was followed in Kamil Noor Khan v. Controlling Authority, Union Committee No.60, Karachi and 3 others P L D 1970 Kar. 730.

8. The ratio emerging from the aforenoted cases is that the rule regarding 7 days' notice is directory in nature and cannot have invalidating effect on the proceedings unless and until some prejudice is shown to have been caused to the petitioner. In view of this, I have no hesitation in coming to the conclusion that the contention of the learned counsel for the petitioner is devoid of merit and is accordingly repelled,

9. There is yet another aspect of the case, that the petitioner has been outvoted by 2/3rd majority. She appears to have forfeited the confidence of her constituency. It is not in the fitness of things to foist her on electorate under the garb of mere fetish technicalities. Reference may be made to Ch. Barkat Ali and another v. A.C. Ferozewala and 10 others P L D 1982 Lah.

83. The authorities cited by the learned counsel for the petitioner proceed on distinguishable facts and have no application to the facts and circumstances of this case.

10. For what just has been stated above, I find no merit in these Constitution petitions and also found that it is not a fit case for the exercise of discretionary relief under the extraordinary jurisdiction of this Court in favour of the petitioner. As a result, these Constitution petitions fail and ale dismissed. A.A./R-322/2 Petitions dismissed.