P L D 1983 Lahore 92 (PLP)

ABDUL SHAKURUL SALAM. J.-The petitioner was elected as a Chairman of Union Council Barnali, Tehsil Kharian. district Gujrat on 20th December, 1979. On 23-6-1982 respondents Nos. 3 to p put in an application for convening a meeting of 'No-Confidence Motion'. The same day it was so ordered for 30th June, 1982. The petitioner was served with the notice on 28-6-82. On the said date according to the petitioner he submitted a written application to the Presiding Officer but admittedly on the day of the meeting viz. 30-6-82 he submitted an application saying that he had not been given seven days' notice, prior to 28-6-82 all proceedings were kept secret, be had no time to explain and to clear his position before the members, the motion of 'No-Confidence' required two-third majority. The Council consisted of 11 members and for the purpose of carrying the motion the required majority would be 8 members. Lastly, that "under rule 5(4) his personal written explanation be circulated amongst the members if the illegal meeting was not to be postponed". The meeting was held. Seven members voted against the petitioner and three in his favour. He was removed from office on 30-6-82. He has challenged the proceedings through this constitutional petition.

3. Learned counsel for the petitioner has read out the relevant provisions of Punjab Local Councils (Vote of No=Confidence against Chairman and ViceChairman) Rules, 1980. These are Explanation to rule 2, which is to the following effect: "For the purpose of these rules, the expression "total number of members" shall mean the total number of elected members constituting the local council at the relevant time whether as representatives of Muslims or those of non-muslims or of peasants, workers and women." Rule 3(2) as under: "A seven days' notice shall be given for a meeting convened under sub. rule (1). (3) . ." Sub-rule (4) lays down "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: (a) (b) (c) (d) . : ' Rule 5(4) provides: "No Chairman or the Vice-Chairman against whom a motion of noconfidence 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."

4. The learned counsel for the petitioner has submitted that the petitioner was not given .seven days' notice as provided for because he was served on 28-6-82 for the meeting of 30-6-82 and the time will be reckoned .from the date of service and not issuance therefor. He placed reliance on Baboo Ram and others v. Chatte Mall (1), (1949) 19 Com. Cas. 175 referred to in Luqman Beg's Treatise on Company Meeting at pp. 101-102 and (1838) 29 Ch. D 204 as mentioned in Gosh's Company Law, 1979 Edn., pp. 179 and

186. He submitted that the petitioner was obviously prejudiced because he had not enough time to meet the members. explain his conduct and seek their support. Secondly, that notice was not affixed on the Notice Board as required by rule 5(4) resulting in the same consequences. Reliance was placed on Muhammad Samin Jan v. Messrs Ferozesons Laboratories Ltd., Nowshera and 2 others (2). Lastly, with reference to rule 5(4) quoted above, it is submitted that petitioner's explanation was not circulated to the members. Not only there was non-compliance of the rule but that has prejudicially affected the petitioner, because the members were not apprised that the petitioner had not been given due opportunity of defence. He has read from Black's Law Dictionary the meaning of words `circulation' which says passing of the matter from place to place or persons to persons. To the same effect he referred Oxford Dictionary.

5. Learned counsel appearing for the respondents Nos. 3 to 9, has submitted that provisions regarding notice are directory in nature and noncompliance thereof does not, result in annulment of the proceedings. He has referred to Abdul Majid v. Province of West Pakistan (3), as upheld by the Supreme Court in Allah Bachaya Khan v. Controlling Authority (4), Ghulam Moinuddin v. Controlling Authority (5) and Kamil Noor Khan v. Controlling Authority (6). To the same effect is the argument regarding non-affixing of notice on Notice Board of the Union and non-circulation of the explanation of the petitioner to the members. He submitted that the petitioner participated in the meeting and has been out-voted by seven to three. He submitted that the petitioner is not entitled to relief because a person holding representative office must retain the confidence of the constituents and from the facts it is clear that the majority is not in his favour. He has referred to Barkat All v. Assistant Commissioner (7) and Muhammad Yaseen v. James Masih (8).

6. Learned Assistant Advocate-General appearing for the public authorities has submitted that notice was handed over to Musthaq Sher Muhammad Vice-Chairman for affixing on the Notice Board on 24-8-1982. Therefore, there was a compliance of rule 4(3) afore-quoted. He however, admitted that in the record there is no proof that the Vice-Chairman bad affixed the notice on the Notice Board. He supported the contentions of the learned counsel for respondents Nos. 3 tc 9. (1) 144 P R 1894 (2) P L D 1972 Pesh. 133 (3) P L D 1964 Lab. 531 (4) 1969 S C M R 127 (5) P L D 1967 Lab. 1040 (6) P L D 1970 Kar. 730 (7) P L D 1992 Lab. 83 (8) P L D 1982 Lab. 217

7. We heard the learned counsel for the parties at length and perused the record with their assistance. On facts, it is established that the petitioner was not served with seven days' notice as required by rule 3(2). There is no proof on the record that the notice was affixed on the Notice Board of the Council as required by rule 3(4) either. Nor about the circulation of the written explanation of the petitioner as required by rule 5(4).

8. Non-compliance with the rules may not be always fatal, moreso if those be directory as contended by the learned counsel for the respondents Nos. 3 to 9 with reference to reported decisions, but all the same it cannot be held that the rules or laws may not be followed with impunity even if those . deprive the person concerned of time allowed by law to arrange for his defence. The judgments relied upon lay down that non-compliance with directory rules will not annul the proceedings, if no prejudice is caused. In the present case, it is apparent that prejudice has been caused to the petitioner that he did not have seven days' notice within which he could approach and persuade his colleagues not to move no-confidence motion against him. In the circumstances, he needed only one member not to support the motion, thereby depriving the others of having two-third majority. It is anybody's guess that he may have succeeded. It is common knowledge that in elected bodies members do change their view or party at eleventh hour. We have a classic case of one member of the Opposition in the National Assembly voting against even his party mandate for the motion of amendment of Constitution of 1962. Therefore, to hold that the petitioner was not prejudiced by too short a notice of two days when he was entitled to seven is delving in the dark valley without light of past experience of many people. We cannot do so. The petitioner was entitled to seven days' notice under the law. We cannot withhold from him what was given to him by law on the basis of conjecture and-contrary to common experience. There is no proof that notice was affixed on the Notice Board of the Council either. Then, under rule 5(4) the petitioner was given a "right" to offer his personal explanation in writing and where a personal explanation is offered, it is required that "it shall be circulated amongst the members and shall form part of the record of the proceedings". There is no doubt that the petitioner offered his written explanation. It was taken by the Presiding Officer. One of the points mentioned therein about two-third majority was mentioned by him in the meeting. It was overruled. But the other point about non-service of the seven days' notice was not even mentioned. The explanation was not admittedly circulated to the members. The rule is apparently mandatory as it says that the written explanation "shall" be circulated. Even if the - word "shall" is construed to mean "may", then too it has to be E noticed that it is being used in the context of the "right" of the petitioner and that cannot be whittled away by sophistry.. Non-compliance of the rules cannot be condoned ad infinitum. Therefore, we are quite clear in our minds that the proceedings were conducted without due regard to the relevant provisions of law, the petitioner was not allowed the benefit of law, deprived of his right, and prejudicially affected by unholy haste in ousting him from his office. The proceedings, were from start to finish without lawful authority.

9. We are conscious of the fact that the petitioner was out-voted by seven to three and the fact that during the pendency of the proceedings he has been successfully holding the meeting as stated by his counsel is no proof of the fact that he has re-acquired the confidence of the members because that may be on account of the sense of responsibility of the seven members voting against him previously that they did not hamper in the smooth running of the affairs of the council. The reliance of the learned counsel for the respondents Nos. 3 to 9 on the two reported decisions that when a person has lost confidence of his constituents he cannot be allowed relief to retain an elected office is not quite apt because those two decisions proceed on the basis that the confidence has been lost properly and irrevocably. This is not the position here as pointed out previously. For the reasons given in the penultimate paragraph, proceedings being without lawful authority, the resultant resolution dated 30-6-1982 is so too and declared as such and of no legal effect. The petition is accepted. In the circumstances the parties shall bear their own costs. s. A. H. Appeals allowed.