P L D 1955 Lahore 635 (PLP)

SHABIR AHMAD, J.--‑By this petition under section 223‑A of the Government of India Act, 1935, Ghulam Ahmad, Vice -President of the Municipal Committee, Mandi Baha‑ud‑Din, prays for a writ of prohibition and mandamus against the Punjab Government, the Commissioner, Rawalpindi Division, Rawalpindi, the Municipal Committee Mandi Baha‑ud‑Din and Manzur Elahi Piracha, Municipal Commissioner, Mandi Baha‑ud‑Din District Gujrat. The prayer is that the first three respondents mentioned above be ordered to forbear from treating, giving approval to and publishing the name of Manzur Elahi, respondent No. 4, in the Punjab Gazette as President of the Municipal Committee, Mandi Baha‑ud‑Din, and to restrain Manzur Elahi Piracha, respondent No. 4, from acting as President of that Municipal Committee. A rule nisi was issued by my Lord the Chief Justice on the 7th of January, 1955 and to‑day Mr. S. A. Mahmud, Assistant Advocate‑General, has appeared on behalf of the Punjab Province and the Commissioner, Rawalpindi Division, while Mr. M. Z. Kitchlew, Advocate, has appeared on behalf of, Manzur Elahi Piracha to show cause against the rule. The relevant facts are these. The last general elections to the Municipal Committee of Mandi Baha‑ud‑Din, which is a second class municipal committee under the Punjab Municipal Act, took place in the year 1953. A meeting of the committee was held as required by the Punjab Municipal Act at which Mr. Rahmatullah and Mr. Muhammad Shafi were elected President and Vice‑President, respectively. After the expiry of the term of Mr. Muhammad Shafi as Vice‑President, Ghulam Ahmad petitioner was elected in his place and his election was approved by the authorities concerned and published in the Punjab Gazette. Subsequently, Mr. Rahmat ullah, who had been elected President, resigned from that office and his resignation was accepted by the Committee on the 1st of December, 1954. A meeting of the Committee was fixed for the 4th of December, 1954 to elect a President in place of Mr. Rahmatullah but no business could be transacted because there was disorder in the meeting which was ad journed to the 25th of December, 1954. Before, however, the Committee could meet on the 25th of December, 1954, Ghulam Muhammad, one of the Municipal Commissioners, filed a civil suit for having the Committee restrained from holding a meeting on the 25th of December, 1954 as that day was a public holiday. The Civil Judge in whose Court that suit was pending issued an injunction on the 23rd of December, 1954 at which the petitioner as Vice‑President of the Municipal Committee fixed the 2nd of January, 1955 as the date of the meeting of the Committee for the election of the President. It appears that Manzur Elahi Piracha, respondent No. 4, and some others approached the executive authorities at which Mr. Muhatnmad Ismail Tariq, Additional District Magistrate, Gujrat, sent a letter to the petitioner to hold the meeting on the 29th of December, 1954 and also sent him a telegram to that affect. in obedience to this letter which described Mr. Tariq as the Deputy Commissioner of Guitar, the petitioner changed the date of the meeting from the 2nd of January, 1955 to the 29th of December, 1954 and a notice to that effect was sent to all‑the members of the Committee on the 26th of December, 1954 by the Secretary of the Committee. A meeting of the Committee was held on the 29th of Decem ber, 1954 at which a point of order was raised that the Deputy Commissioner could not have ordered the Vice‑President to alter the date of the meeting. After some discussion on the point of order the petitioner who, as Vice‑President of the Municipal Committee, was presiding at that meeting, ad journed it sine die with a view to obtaining from the Deputy commissioner a clarification on the question raised in the point of order. In his letter, Mr. Tariq had said that the meeting was not to be adjourned till the election of the President had taken place and had deputed Mr. Muhammad Shafi, Resident Magistrate, Mandi Baha‑ud‑Din, to attend the meeting. It appears that after the petitioner had adjourned the meeting as the Chairman thereof, some members held a meeting at which they elected Manzui Elahi Piracha, res pondent No. 4, as the President of the Committee. Another meeting of some members of the Committee was held on the 2nd of January, 1955 in which the petitioner did not take part and at that meeting a resolution 'was passed confirming the election of Manzur Elahi, respondent No. 4, as President of the Committee on the 29th December, 1954 and the members present proceeded to hold another election which resulted in Manzur Elahi Piracha, respondent No. 4, being elected as President of the Municipal Committee. It is contended by the learned counsel for the petitioner that the proceedings of the meeting held on .the 2nd of January, 1955 were null void and inoperative because no authorised person had fixed the 2nd of January, 1955 as the date of the meeting. To this the learned counsel for the respondents replied that as the petitioner, who was the Vice President, had fixed the 2nd of January, 1955 as the date of the meeting for electing the President of the Municipal Committee, the meeting held on that date was a valid meeting. It was added that though as Vice‑President of the Municipal Committee it was the right of the petitioner to preside over the meeting held on the 2nd of January, 1955 but as he did not choose to take part in that meeting, the members present at that meeting were within their right to elect another Chairman of the meeting and, therefore, the proceedings of that meeting were perfectly valid and could be taken no exception to. Another contention on behalf of the respondents was that the Deputy Commissioner was within his rights to order that a meeting be held on the 29th of December, 1954 because if the meeting had not been held on that date, statutory provisions contained in the Punjab Municipal Act would have been offended against and. in this connection reference was made to subsection (1) of section 20 and section 234 of the Punjab Municipal Act. In the alternative it was contended that if the Deputy Commissioner was not competent to order that the meeting which was scheduled to be held on the 2nd of January, 1955 be held on the 29th of December, 1954, the notice issued by the petitioner for holding the meeting on the 2nd of January, 1955 remained in force and the election of res pondent No 4 as President on 2nd of January, 1955 was valid. Subsection (1) of section 20 of the Punjab Municipal Act which deals with the question under consideration is in the following terms :‑ "20. (1) Every committee shall from time to time elect one _of its members ‑to be president, and the member so elected shall if approved by the Local Government in the case of a first class committee, or by the Commissioner in the case of second class committee, become president of the committee: Provided that the committee, instead of electing a president and submitting his name for approval to the Local Government or the Commissioner, may apply to the Local Government or the Commissioner as the case may be, to appoint a president from among its members, and that the Local Government may, by notification exclude any committee from the operation of this subsection; and that in either of these cases, or if no election has been made within one month from the occurrence of a vacancy in the office of the president, or if the person elected be not approved, the Local Government or the Commissioner, as the case may be, may, if it or he shall think fit, appoint one of the members of the committee to be president," and section 234 reads as follows :‑ "234. (1) When the Commissioner, after due enquiry, is satisfied that a committee of the first class has made default in performing any duty imposed upon it by this Act, or by any order or rule under this Act, he may by an order in writing fix a period for the performance of that duty ; and, should it not be performed within the period so fixed, he may appoint some person to perform it, and may direct that the expense thereof shall be paid within such time as he may fix by the committee. (2) Should the expense be not so paid, the Commissioner may make an order directing the person having the custody of the balance of the Municipal fund to pay the expense, or so much thereof as may from time to time be possible from that balance, in priority to all other charges against the same. (3) The Deputy Commissioner shall have the same power with respect to the committees of the second class as are by this section conferred upon the Commissioner with respect to committees of the first class." It is clear from the wording of subsection (1) of section 20 that if the Municipal Committee does not elect a President within one month from the commencement of the vacancy in the office of the President, the Provincial Government or the Commissioner, as the case may, be, is competent to appoint one of its members to be the President. This, however, does not mean that the Deputy Commissioner or any other authority can direct the committee to hold a meeting fort he a of the date of the election of its President within one month occurrence of the vacancy. Reference to section 234 of the Punjab Municipal Act was made in order to show that because the committee was not performing its duty of electing a President within the time fixed by section 20 of the Act, the Deputy Commissioner was under subsection (3) of section 234 competent to direct the Committee to elect one of its members as its President before the expiry of a month from the date of the occurrence of the vacancy. I have already indicated that subsection (1) of section 20 of the Punjab Municipal Act does not enjoin on the committee the duty to elect one of its members as its President within one month of the occurrence of the vacancy though it authorises the Provincial Government or the Commissioner, as the case may be, to appoint one of its members as the President if the committee has not exercised that right and, therefore, the mere fact that 2nd January, 1955 was not within one month of the occurrence of the vacancy in the office of the President would not attract subsection (3) of section

234. Reference was next made to section 25 of the Punjab Municipal Act which is in the following terms :‑ "25. (1) Every committee shall meet for the transaction of business at least once in every month at such time as may, from time to time, be fixed by the bye‑laws. (2) The president or, in his absence or during the vacancy of his office a Vice‑President, may, whenever he thinks fit, and shall, on a requisition made in writing by not less than one‑fifth of the members of the committee, convene either an ordinary or a special meeting at any other time". It was said that a requisition had been made to the petitioner as the Vice‑President of the Committee to convene a meeting and as it was the duty of the petitioner as Vice‑President to convene a meeting in the terms of the requisition, the Deputy Commissioner became invested with the powers under subsection (3) of section 234 of the Municipal Act to direct the Committee to do its duty. Apart from the fact that if an office holder of the Committee does not do what the statute makes it his duty to do, it cannot be said that the Committee had made a default in the performance of any duty imposed upon it by the Act or by any order or rule made under the Act, there is this weakness in this argument that it is not established that any valid requisition was made under subsection (2) of section 25 of the Punjab Municipal Act. But assuming that the Deputy Commissioner could order that a meeting be held on the 29th of December, 1954, it does not appear to have been within his competence to order that the election of the President must take place on that date. The conduct of 'the meetings of the Mandi Baha‑ud‑Din Municipal Committee is dealt with in the bye‑laws of the Committee which were passed as long as ago as 1945 and were published as Notification No. A‑IV‑52‑E/2 dated the 15th of January, 1945 at rages 16 to 21 of Part I‑B of the Punjab Gazette dated the 16th of February, 1945. Bye‑laws 8 and 15 which are the relevant provisions to be considered read as follows :‑ "

8. The Chairman shall decide all points of order or procedure and his decision shall be final. Whenever he rises, any member speaking shall resume his seat." "

15. If the meeting refuse to obey the ruling of the Chairman on any matter, he may adjourn it at once, and once he declares the meeting adjourned on this or any other ground the subsequent proceedings of the meeting or any residue thereof shall be void and shall not appear in the minutes." Under section 28 of the Punjab Municipal Act the petitioner by virtue of his being the Vice‑President of the Municipal Committee had the right to preside at the meeting held on the 29th of December, 1954 and had all the powers of a Chairman under the Bye‑laws referred‑ to above. The Chair man adjourned the meeting sine die and, therefore, in view of Bye‑law 15, all subsequent proceedings of the meeting were void and could not even appear in the minutes of that meeting. It follows, therefore, that the act of some members of the Committee in electing respondent No. 4 as President of the Committee on the 29th of December, 1954 had no valid effect. It was open to the petitioner to have disregarded the order of the Deputy Commissioner and insisted that the meeting be held on the 2nd of January, 1955 as already directed by him but he did not choose to do so and instead altered the date of the meeting to the 29th of December, 1954. On the 29th the petitioner exercising his powers as a Chairman adjourned the meeting sine die and as on the 26th of Decem ber 1954 a notice had been issued to the members that the meeting formerly fixed for the 2nd of January 1955 had been cancelled and in its stead a meeting will be held on the 29th of December, 7954, the notice issued in the first instance that the meeting will be held on the 2nd of January, 1955 became inoperative and no valid meeting could, therefore, be held on the 2nd of January, 1955. It follows that the election of respondent No. 4 as the President of the Committee on the 2nd of January, 1955 was also invalid. It was next contended by the learned counsel for the respondents that as the matter referred to an election as contemplated by the Municipal Election Rules, 1952 (published in the Punjab Gazette dated the 28th of March, 1952 as Notification No. 11010‑B & C. 51/1551 dated the 3rd of March, 1952), the election could not, because of rule 51 which says that no election shall be called in question except by and election petition presented in accordance with those rules, be called in question in a Civil Court. If the meeting at which some members of the Committee purported to elect res pondent No. 4 as the President of the Committee were a valid meeting of the Committee, the argument that the election could be called in question only by an election petition would have been unassailable, but in the present case, as I have already indicated, the meeting at which respondent No. 4 was elected as the President of the Mandi Baha‑ud‑Din Municipal Committee was no meeting in the eye of law. In these circumstances the jurisdiction of the Civil Courts which are 1 Courts of general jurisdiction cannot be taken away by rule 51 relied upon on behalf of the respondents. Having held that Manzur Elahi, respondent No. 4, was not validly elected as President, I proceed to consider if any writ should issue. It appears to ire that no occasion for issuing a writ to the Punjab Government arises because Mandi Baha‑ud‑Din Committee being a second class Municipal Committee, the election of its President has, under section 24 of the Punjab Municipal Act, to be notified by the Commis sioner, Rawalpindi Division, and not by the Provincial Government. No occasion for issuing a writ to Municipal Committee, Mandi Baha‑ud‑Din arises either because the Committee can accept respondent No. 4 as its President only after his election has been notified by the Commissioner of the Division, The appropriate writ in the present case is one of mandamus which is generally issued to ensure that a personal corporation or an inferior Court does some particular thing therein specified which pertains to his or its office and is in the nature of a public duty. Issue of this writ to respondent No. 4 is in the circumstances of this case, entirely inappro priate and I would, therefore, decline to issue a writ to respondent No. 4 also. It appears, however, that in view of the election of respondent No. 4 being entirely without any valid basis, a writ of mandamus should be issued to the Commissioner, Rawalpindi Division, not to notify the election t of respondent No. 4 as a President of Mandi Baba‑ud‑Dinl Municipal Committee on the basis of the elections held on the 29th of December, 1954 and the 2nd of January, 1955, and I would order accordingly‑ but would pass no orders with regard to costs of the petition. S. A. RAHMAN. C. J.‑I agree. A. H. Writ issued.