P L D 1964 (W (PLP)

SAJJAD AHMAD JAN, J.‑This is a petition by Abdul Majid, one of the members of Union Council No. 60 from Chak No. 490/GB, Tahsil Samundari, District Lyallpur, who was later elected as the Chairman of the same Council. In his capacity as the Chairman of the Council he was also an ex‑officio Member of the Tahsil Council. On the 4th of December 1963 (paragraph 5 of the petition states that it was on or about that date), ten members of the Council sent a written request to the Assistant Director of Basic Democracies, Lyallpur (respondent No. 2), that a meeting be convened to enable them to move a vote of no‑confidence against the petitioner under rule 3 of the West Pakistan Basic Democracies (Vote of No‑Confidence Against Chairman) Rules, 1963 (hereafter to be referred to as the rules). Respondent No. 3, who is the Tahsildar of Samundari, thereafter sent a letter to the Secretary of the Union Council, instructing him to summon a meeting of the Union Council for the 30th of December 1963 for the aforesaid purpose. The Secretary in turn sent a circular letter on the 23rd of December 1963, to the members, including the petitioner, informing them that a meeting will be held on the 30th of December 1963, for the purpose of moving a vote of no -confidence against the Chairman (the petitioner). In consequence, a meeting was held on the above‑mentioned date under the President-ship of the Tahsildar (respondent No. 3). A vote of no confidence was moved against the Chairman which was passed by a majority of ten to two. The total strength of the Union Council consisted of 12 members. Simultaneously, respondent No. 3 ordered the removal of the petitioner from the chairmanship of the Council.

2. The validity and legality of the no‑confidence motion and the petitioner's removal from the chairmanship as a sequel thereof are challenged on the grounds: (1) That the meeting which was convened by respondent No. 2, Assistant Director of Basic Democracies, Lyallpur, was violative of rule 3 of the Rules, inasmuch as the meeting could be convened only by the Collector as the Controlling Authority and the one convened by respondent No. 2 was illegal and without any effect. (2) That the meeting had taken place after the expiry of fifteen days from the date of the notice as required by rule 3 (1) of the Rules. (3) That seven clear days' notice had to be given for the convening of the meeting which was riot done in this case and which infringed rule‑ 3, sub‑rule (2) of the Rules. (4) That the Basic Democracies Order (18 of 1959) does not provide for the removal of a Chairman of a Union Council and the one brought in through an Ordinance (West Pakistan (Amendment) Ordinance (XXXV of 1963) ) passed by the Governor of West Pakistan, amending the Order in that behalf was without any lawful authority.

3. The last ground, however, was not even hinted during the arguments before us because no objection was taken to the ordinance‑making powers of the Governor under Article 79 of the Constitution of Pakistan, in regard to the amended application or supplementation of the Basic Democracies Order to the territories of West Pakistan.

4. The first ground of attack mentioned above is concluded on a point of fact. In the written statement submitted on behalf of the respondents it is stated that the "requisition" by the members was sent to the Controlling Authority under rule 3 of the Rules, and the meeting in consequence thereof was convened by the Controlling Authority, viz., the Collector, and the Tahsildar (respondent No. 3) was appointed by the Controlling Authority to preside at that meeting. This removes the basis from the con tention of the petitioner that the meeting was not properly convened, having been convened by the Assistant Director, Basic Democracies, Lyallpur (respondent No. 2), and not by the Controlling Authority. The Controlling Authority in the case of Local Councils other than Union Councils in East Pakistan is the Collector according to section 3 (10) (iii) of the Basic Democracies Order, 1959.

5. This brings us to the principal contentions of the learned counsel for the petitioner as embodied in Grounds Nos. 2 and 3, mentioned above. The two provisions of the rules which furnish the basis for these grounds may be reproduced :‑ "

3. Requisition for convening a meeting for moving a vote of no‑confidence.‑(1) Not less than one‑half of the elected members of a Basic Democracy may by a written requisition signed by them, apply to the Controlling Authority to convene a special meeting of the Basic Democracy to consider a no- confidence motion against the Chairman, and the Controlling Authority shall, within fifteen days of such application convene a special meeting of the Basic Democracy for the purpose. (2) Seven clear days' notice shall be given for a meeting convened under the provisions of this rule. It was contended by the learned counsel for the petitioner that the requirements of the statutory provisions with regard to the time of convening the meeting by the Controlling Authority within fifteen days from the date of the receipt of the requisition by the members and of seven clear days' notice to the members for such a meeting were of a mandatory character, the non‑compliance of which destroyed the validity of the meeting and the proceedings taken in that meeting. In brief, the argument is that the act of removing a chairman from a Union Council is of a penal character and the legal provisions bearing on that action both in their application and their construction should receive a very strict interpretation. He pointed out that the word "shall" used in both the provisions was mandatory in its context, denoting a compul sive action and not a permissive one. He cited a passage from Craies, 1952 Edition, page 240, for the contention that where there is a provision of time in a statute, it is of a mandatory nature. He cited Nazir Ahmad v. King‑Emperor (A I R 1936 P C 253) for the general pro position that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all as other methods of performance are necessarily forbidden.

6. The statutory provisions of an enabling character, sac as the rules in question, have an absolute or a directory effect, depending on the real intention of the Legislature or the rule making authority. The intention has to be gathered by carefully attending to the whole scope of the statute or the statutory rules. One general rule, although it may also be found to have it exceptions, is that where a provision is expressed in a negative and prohibitory language, it is considered to be absolute and the one expressed in an affirmative language may be considered a directory. Where a provision is absolute having an obligator force, it carries an implied nullification for its disobedience, but where it is merely directory, its non‑compliance may not be fatal unless the complaining party is able to show that the non-compliance has worked to its prejudice. Again, 3 directory provision may be waived by a party whose interests are apparent affected by its non‑compliance. Waiver would be presumed if a party, who could have insisted on a strict compliance with the provision before it was made to work, has failed to do so. Rule 3 of the Rules provides an illustration of a composite provision containing obligatory as well as directory mandates. The firs part is expressed in a negative and prohibitory language and the second in an affirmative one. When it says in the first part that "not less than one‑half of the elected members of a Basic Democracy may by a written requisition signed by them, apply to the Controlling Authority to convene a special meeting of the Basic Democracy to consider a no‑confidence motion", the intention of the prohibitory language used is clear that no sac requisition can be made or a meeting is to be convened unless one‑half of the elected members make a written requisition. The second part that the Chairman shall then convene a meeting within fifteen days is of a directory import expressed as it is in affirmative language. Non‑obedience of the first part would, destroy the validity of the requisition but non‑compliance with the second part will not do so to invalidate the meeting unless it i shown that some basic prejudice was caused to the affected party. Again, while considering this provision I feel the true import of the words "convene" as used in its context has to be examined.

7. This word has several meanings as stated in the Shorter Oxford English Dictionary: "To come together; to meet, esp. for a common purpose ; to occur together, to cause to come together ; to convoke ; to summon before a Tribunal." The intention, of the rule seems to be that the Controlling Authority shall not sit over the requisition received from the members but must take peremptory action within fifteen days in the maximum to convene the meeting. If the word "convene"' were to be construed to mean actual holding, of the meeting, the very object of the rule may in some cases be stultified. It may not be possible to hold the meeting within fifteen days for want of a quorum, for instance, which is to be two‑thirds of the total number of the members of the Basic Democracy concerned for such a meeting under sub‑rule (3) of rule

3. The meeting has then to be adjourned. What seems to me to be more consistent with the intention of the rule is that the Controlling Authority, on a valid written requisition, has to take steps within fifteen days for the convening of such a meeting for consideration of the vote of no- confidence, and not that it is obligatory on it to actually hold the meeting to have the issue finally decided before the expiry of fifteen days. It is well‑settled that in interpreting statutes the remedy under the statute has to be promoted and any mischief that might retard its object has to be suppressed.

8. 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" emphasise 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.

9. While the first rule, i.e. rule 3 (1) providing fifteen days for convening of the meeting from the date of the requisition is made in the interests of the movers of the resolution to ensure a peremptory action on the part of the convening authority to convene a meeting, the second seems to be a rule in favour of the Chairman whose removal is sought by the resolution to give him time to retrieve his position. The failure on the part of the petitioner to prove that non‑compliance with the rule has worked to his prejudice, resulting in the denial of justice to him, an having waived the objection at the proper time by acquiescing in the proceedings, it is not equitable to entertain his plea now regarding the defective duration of the notice after the close o the event. It is relevant to quote here the words from the opinion of Darlay C. J. cited at page 249 of Craies on Statute Law, Fifth Edition: "It is, to my mind, a clear principle of equity, and I have no doubt that there are abundant authorities on the principle, that equity will interfere to prevent the machinery of an Act of Parliament being used, by a person to defeat equity which he has himself raised and to get rid of a waiver created by his own acts." In the present case, the petitioner not only did not lodge any objection to the holding of the meeting but participated in its proceedings. The vote of no‑confidence against him was passed by a majority of ten against two. In view of his own conduct, amounting to a complete waiver of the objection with regard to the legality of the meeting, I consider that it is very late for him now to take up that objection. He is clearly estopped from) doing so. The result is that this petition is dismissed with costs. MUHAMMAD AKRAM, J.‑I agree. S. Q. Petition dismissed.