P L D 1968 Lahore 403 (PLP)

S. A. MAHMOOD, J.‑

This is a petition by Mirza Muhammad Shafi under Article 98 of the Constitution of Islamic Republic of Pakistan, challenging his removal from the office of Chairman of Town Committee Dhaban Singh, District Sheikhupura, by reason of a vote of "no confidence' passed against him on the 6th of June 1966.

2. There were only three members elected to Town Committee Dhaban Singh, District Sheikhupura, namely, Mirza Muhammad Shafi, petitioner, Sher Muhammad, respondent No. 3, and Jan Muhammad, respondent No.

4. In its first meeting held on the 18th of January 1966, Mirza Muhammad Shafi petitioner was elected as Chairman. That meeting was only attended by Mirza Muhammad Shafi petitioner and Jan Muhammad respondent. The petitioner's case is that the oath of office was administered to them at the first meeting, but Sher Muhammad the third member, remained absent and the oath of office was never administered to him. Further meetings of the Town Committee were held on the 27th of January 1966, 3rd of February 1966, 7th of April 1966, 19th of April 1966 and 28th of April 1966, which were attended by the petitioner and Jan Muhammad. Another meeting was held on the 21st of May 1966, ,when Sher Muhammad respondent attended as a member for the first time. No business was transacted at this meeting as when Muhammad Shafi Chairman was called to hold the meeting, he came and stated that he was ill on that day. It is the case of Jan Muhammad respondent No. 4, that Sher Muhammad was administered the oath of office on the 21st of May 1966. He has produced a copy of a document attested by him as Annexure "R/1" on page 79 of this file, which shows that Sher Muhammad took an oath on the 21st of May 1966. On the 4th of June 1966, another meeting of the Town Committee was held, which was not attended by the petitioner, but was attended by the other two members.

3. On the 24th of May 1966, Sher Muhammad and Jan Muhammad respondents presented an application before the Controlling Authority, Sheikhupura, for convening a special meeting of the Town Committee to consider a motion of "no confidence" against the Chairman. As it was found to be in order, and the Controlling Authority was bound to fix a date of the meeting within 15 days of the application, the Controlling Authority fixed the 6th of June 1966 as the date of the meeting. The Tehsildar, Sheikhupura was supplied with copies of notices in duplicate for service upon the members of the Town Committee. The notices were returned duly served on Sher Muhammad and Jan Muhammad, but the report on the notice sent to the petitioner was that he had refused to accept service. One copy of the notice was affixed at his house. The report of the Process Server, Shabbir Husain Tehsil Peon, was attested by the signatures of Muhammad Shafi and Muhammad Ishaque, Rice Dealers of Mandi Dhaban Singh. The special meeting to consider the motion of 'no confidence' was held on the 6th of June 1966 under the Chairmanship of Ch. Muhammad Abdullah, Development Officer, Basic Democracies Sheikhupura, and the "no confidence" motion was passed by Sher Muhammad and Jan Muhammad respondents voting it its favour. Muhammad Shafi petitioner did not attend this meeting. The removal of the petitioner from Chairmanship of the said Town Committee was notified on 17th June 1966, and on the 27th of June 1966, another meeting was held to elect a Chairman, at which Jan Muhammad, respondent No. 4, was elected as Chairman, and his election was notified on the 30th of June 1966. This petition was instituted on the 20th of June 1966 to challenge the removal of the petitioner from Chairmanship of the Town Committee.

4. The main ground of challenge to the removal of the petitioner is that Sher Muhammad respondent not having taken the oath of office could not have participated in the proceedings of the meeting, and that the Town Committee was in consequence constituted of two members only. The success of the plea turns on the question whether Sher Muhammad had taken an oath as alleged on the 21st of May 1966, as is the case of Jan Muhammad and is stated in Annexure "R/1", but the petitioner's learned counsel contends that it is a forged document, and further that it cannot be looked at unless it is formally proved.

5. The learned counsel for the petitioner so vehemently contended that Annexure R/1 is a forged document and did not bear the signatures of Mirza Muhammad Shafi that we were led to afford him an opportunity to examine Muhammad Shafi and other evidence,‑ and we also recorded the statements of She Muhammad, Jan Muhammad and Muhammad Hussain Secretary of the Town Committee. The original of Annexure R/1 was also brought to Court and has been exhibited as Exh. R. Mirza Muhammad Shafi denied before us that he administered an oath to Sher Muhammad or that Exh. R. bears his signatures. He conceded that he and Jan Muhammad took the oath as members of the Electoral College before the Treasury Officer, before he took the oath of office as member of the Town Committee, but he could not say whether Sher Muhammad took the oath on that day. Muhammad Ishaque, who was present in Court with the petitioner, was also examined by Mr. Fazle Mahmood, Advocate. He deposed that he was present at the meeting of the Town Committee held on the 21st of May 1966, which was adjourned by Mirza Muhammad Shafi petitioner, who did not administer any oath to Sher Muhammad. He is proved to be a highly interested witness, whose evidence cannot be relied upon, for he has admitted that he was appointed as Sadar Muharrir by Mirza Muhammad Shafi and was suspended by Jan Muhammad, who succeeded Muhammad Shafi as Chairman. He obviously came as helper of Mirza Muhammad Shafi, and we have no hesitation in rejecting his testimony as highly interested and unworthy of credit. Jan Muhammad and Sher Muhammad stated on oath that they took the oath as members of the Electoral College before the Treasury Officer along with Muhammad Shall together. It appears that the documents of oath remained with the Treasury Officer, and were not sent to the office of the Town Committee, Mandi Dhaban Singh. They further stated that on the 17th of May 1966, there was a compromise between Sher Muhammad and Jan Muhammad, and one of the terms of the compromise was that Mirza Muhammad Shall should be removed from his position as Chairman by moving a vote of "no confidence" and that Sher Muhammad would support Jan Muhammad for being elected as Chairman. They state that this came to the knowledge of Mirza Muhammad Shall on the same evening. They reached the office of the Town Committee on the morning of the 21st of May 1966, but as Mirza Muhammad Shafi Chairman did not come to the office, the Secretary of the Town Committee sent a peon to call him. When he came to the office, he stated that he was too unwell to hold a meeting of the Town Committee. On this, Sher Muhammad insisted that the meeting should not be adjourned sine die, but to a definite date. It was, therefore, decided to adjourn it to the 4th of June 1966. The presence of the Chairman and members was recorded in the Minute Book of the Town Committee by Muhammad Husain. When Sher Muhammad wanted to sign it as a member, the Secretary pointed out that he could not sign the register or participate in the meeting unless he were to be administered the oath of office. On this, the Chairman asked the Secretary to look for a form of the oath. The Secretary was new to the office. The Secretary as well as the Chairman looked for it through the files lying in two almirahs in the office. The Chairman took out the form of oath which Sher Muhammad had taken in 1962, and asked the Secretary to copy it. The Secretary accordingly copied it out in his hand. The Chairman then administered the oath to Sher Muhammad, who read it out. Both Sher Muhammad and Muhammad Shafi signed the oath, which is Exh. R. Sher Muhammad proved his own signature and that of Muhammad Shall on it. Jan Muhammad proved the signatures of Muhammad Shall only. As the presence of Muhammad Husain at this meeting was admitted by the petitioner and the respondents we decided to examine him also. He was examined and he supported the version of Sher Muhammad and Jan Muhammad. He deposed that he pointed out that Sher Muhammad could hot sign the register unless he was administered the oath, on which Mirza Muhammad Shall asked him to look for a form of oath, and then a search was made for the form by him, and the Chairman. The Chairman gave him a document (Exh. E), which was the oath administered to Sher Muhammad in 1962, and asked him to copy it. He copied it out as Exh. R. It was then administered by the Chairman, and read out by Sher Muhammad. Sher Muhammad and Muhammad Shafi signed it in his presence. He identified their signatures on it. Then the meeting was adjourned by the Chairman. The secretary had taken over in April 1966, and though it could be urged that he may be giving evidence because of the fear of or under the influence of Jan Muhammad, the Chairman, we are not inclined to discard his evidence. The above documents have been formally proved.

6. The onus of proving that Exh. R. is a forged document lay on the petitioner. This onus he has not discharged. We find that the document of oath Exh. R. is not in proper form. If it was forged for the sake of meeting the objection that the removal of the petitioner was illegal, for the reason that Sher Muhammad had not taken the oath of office, care would have been taken to prepare the document in proper form, and it was no problem, since copies of the oath in proper form were readily available in the same file, in which Exh. R. was found. Muhammad Shafi admitted that he knew that it was his duty to administer an oath to Sher Muhammad, and as this was the first meeting of the Town Committee, which he was attending, it is, reasonable to infer that he would normally administer the oath to him on the 21st of May 1966, as is required by rule 7(4) of the West Pakistan Assumption of Office Rules. We consider the evidence of Sher Muhammad and Jan Muhammad, supported as it is by the evidence of Muhammad Husain, to be more reliable. We cannot, E therefore, hold that Exh. R. is a forged document, and that no oath was administered to Sher Muhammad on the 21st of May 1966. There is no need therefore to obtain the opinion of an expert whether the signatures of Mirza Muhammad Shafi on Exh. R. are genuine or not.

7. The oath, which Sher Muhammad took on the 21st of May 1966, is the one which is prescribed for members of the Electoral College to be administered to them before and for the purpose of election of the President of Pakistan. The oath of a member for purposes of being a B. D. member is different and is in the following form:‑ "I

having been elected a member of

do hereby solemnly affirm/take an oath that I will bear true faith and allegiance to Pakistan and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment." The oath Exh. R. taken by Sher Muhammad was different. By this oath, he undertook as a member of the Electoral College to faithfully and honestly exercise his vote in the election, without fear, favour or ill‑will, with full consciousness of his responsibility, in favour of the best and the most suitable candidate, who is faithful to the cause of Pakistan, and who would work for and further the national cause. Since the oath has not been adminis tered to Sher Muhammad in the prescribed form, it has been contended that he has not taken his seat as a member of the Town Committee, and was in consequence neither a member of the Town Committee, nor could exercise his vote in favour of the vote of no confidence. It is argued that the result is that there were only two members of the Town Committee, and the vote of no confidence was not passed with the requisite majority.

8. Rule 7(2) of the West Pakistan Assumption of Office Rules directs that at the first meeting of a Union Council, Union Committee or Town Committee the Presiding Officer shall administer the oath of office in the form, specified in the Schedule, to the members present, turn by turn. If any member of a Local Council is unable to be present at the first meeting of the Local Councils sub‑rule (4) of rule 7 directs that tile Chairman of a Local Council at a subsequent meeting of the Local Council shall administer the oath of office to such member. When such member has taken the oath, he shall be deemed to have taken has seat on the Local Council. The, effect is that a person duly elected to a Union Council occupies his seat, when he takes the oath of office in the prescribed form. The question for determination, there fore, is what effect there is on the vote of no confidence, if Mirza Muhammad Shad petitioner administered and Sher Muhammad took an oath, which was meant for members of the Electoral College, and not, the prescribed oath.

9. As it has been stated in the evidence of Sher Muhammad and Jan Muhammad that it came to the knowledge of Mirza Muhammad Shafi that a compromise had been arrived at between them, and one of the conditions of the compromise was to move a vote of no confidence against the petitioner, it is argued for the respondent that the petitioner administered the wrong oath dishonestly, with a view to create grounds for challenging the vote of no confidence, and he could not be permitted to take advantage of his own wrong and dishonest conduct. This contention finds strength from the fact that as Mirza Muhammad Shafi petitioner was administered the oath of office in the first meeting of the Town Committee by the Presiding Officer in proper form, he must have known what the proper form was and yet he chose the wrong form of oath, when the forms of the correct oath were also available in the same file, from which the form was taken out by the petitioner, and given to the Secretary of the Town E Committee for copying. It is surprising that Jan Muhammad did not point out that the oath was not in proper form, but it appears to us that having studied up to the primary classes, and not being so intelligent he had forgotten the exact form of oath of the office, and, therefore, raised no objection to it. Sher Muhammad had also taken oath of office in proper form as a member of the Town Committee in 1962, but it cannot be expected that he would remember the correct form of the oath after four years. In all probability, he took the oath in good faith and in the bona fide belief that it was the correct oath of office. Therefore, the contention on behalf of the respondents is not without force that the petitioner deliberately and dishonestly administered the wrong oath to Sher Muhammad. This being the case, the petitioner is not entitled to the grant of a relief in this discretionary jurisdiction, for he seeks relief on the basis of a wrongful and dishonest act committed by G himself. Even if it be assumed that the petitioner administered the incorrect oath to Sher Muhammad inadvertently, or did not administer the oath the position does not alter and we would refuse the relief to the petitioner on the ground that it is he who is responsible for the omission or commission of the irregularity in the administration of the oath, and the breach of the rules, which affect the assumption of office by Sher Muhammad.

10. Sher Muhammad was a duly elected member of the Electoral College, and took the prescribed oath as its member. In view of the provisions in Article 158(4) members of the Electoral College could be conferred by law powers and functions in relation to matters of local Government. Section 57 of the Electoral College Act is such law. Its subsection (b) provides that for the purposes of conferring on the members of the Electoral College functions in relation to matters of local Government, the Provincial Government shall declare by notification in the official Gazette that the members of the Electoral Units within a Union or a Town, after they have performed their functions of electing a President and the members of the National and Provincial Assemblies, shall constitute the Union Council or Committee for the Union, or as the case may be, the Town Committee for the Town with effect from such date, as may be specified in the notification. The elections having been held, the petitioner, Jan Muhammad and Sher Muhammad respondents were declared members of the Town Committee. Therefore, Sher Muhammad is a duly constituted member of the Town Committee. He is a de facto member, though it may be that he may occupy the seat on taking the prescribed oath.

11. There can be little doubt that sub‑rules (1), (2) and (4) of rule 7 of the West Pakistan Assumption of Office Rules are directory and not mandatory. They are in the nature of directions in imperative form to the Presiding Officer or the Chairman to administer the oath of office in prescribed form, and when the oath is taken, the members take the seat on the Local Council. The question, therefore, is that if there be not strict compliance with this rule, whether the proceedings of the Local Council, i.e. the Town Committee in this case, are invalidated. Since Sher Muhammad was a member of the Town Committee, the irregularity in the administration of the oath cannot invalidate his basic membership of the Town Committee, or the proceedings of the Town Committee in which he participated. No prejudice whatever has been caused to the petitioner or is even alleged by him. Article 39 (4) of the Basic Democracies Order expressly provides that no proceedings of a Local Council shall be invalid by reason only of the existence of any vacancy in or any defect in the constitution of the Council or by reason only that some person, who was not entitled to do so, sat or voted, or otherwise took part in the proceedings. In Muhammad Nawaz Khan v. Ghulam Farid and another (P L D 1963 S C 623) the appellant and the respondent were candidates for election to the office of Chairman of a Union Council, and the main ground of attack on the election of the respondent was that he had been proposed by Abdul Majid, an appointed member, who was less than 25 years of age, and it was urged that, therefore, his election was void. This objection was given effect to by the Controlling Authority, but its order was set aside by the High Court in exercise of writ jurisdiction, relying on Article 39 (4) of the Basic Democracies Order. The High Court's order was upheld by the Supreme Court observing that election of a Chairman ‑was a business of the Union Council, and the question for consideration being whether the fact that the member, who proposed the name of the respondent was not qualified to be a member, was a sufficient reason for setting aside the election, it could not be said that this would constitute sufficient reason, because under Article 39 (4), the fact that a person who voted was not entitled to vote, did not by itself vitiate any proceedings. If a member of a Local Council has not taken the oath in proper form; objection can be taken to his participating in a meeting, but if he has participated, then the proceedings taken and business transacted is not invalidated by reason of Article 39(4). We are unable to regard the proceedings of the Town Committee vitiated by reason merely of the participation of Sher Muhammad in the special meeting of 6th June 1966.

12. Since Rule 7(4) is directory and not mandatory, a proceeding taken in disregard of it is not necessarily invalid. It has been stated by Maxwell in 'Interpretation of Statutes' which was quoted with approval by the learned Judges of the Supreme Court in Zain Noorani v. Secretary of National Assembly (P L D 1957 S C 46) that the neglect of provisions that are directory may be penal, but it does not affect the validity of the act done in disregard of them. "On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescrip tions seem to be generally understood as mere instructions for the‑ guidance and Government of those on whom the duty is imposed or in other words, as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them."

13. The duty of administering the oath of office as member of the Town Committee was entrusted by sub‑rule (4) of rule 7 to the petitioner, but he failed to appear in the meetings of the Town Committee on the 4th of June 1966 as well as 6th of June 1966, and in all its subsequent meetings except of 13th September 1966. The irregularity in the oath could be rectified by the petitioner in any of the meetings of the Town Committee of the 4th and 6th June 1966, but he did not attend on these dates as he was interested in defeating the 'no confidence' motion by refrain ing from attending the meetings, having administered the incorrect oath. The petitioner had evidently planned to defeat the motion of no confidence by administering an incorrect oath, and remained absent as planned, from the meetings of the Town Committee, in which the defect could be rectified. The responsibility for the defect in the assumption of office by She r Muhammad lies entirely on the shoulders of the petitioners. To give effect to the technical plea raised by the petitioner is to further fraudulent and dishonest conduct on his part. It is he who violated the rule by administering a wrong oath, and even if he did not administer the oath, it is he who violated rule 7(4) of the West Pakistan Assumption of Office Rules, and this equitable and discretionary relief, which he claims on the basis of his own acts of commission or omission, which are dishonest or in violation of rules cannot be granted to him. It is not even in the public interest that any relief should be granted to him, because in order to prevent Sher Muhammad from assuming office he may either delay or refuse to administer an oath to him in, proper form, or fail to attend meetings of the Town Committee and continue a defect caused by him in the constitution of the Town Committee, with a view to delay or defeat the vote of no confidence, which was duly moved against him. This Court also does not issue a writ, where it can be made infructuous and futile, which can be done by Sher Muhammad and Jan Muhammad again passing a vote of no confidence against the petitioner. Jan Muhammad should now administer the oath of office in proper form to Sher Muhammad to rectify the irregularity.

14. For the reasons stated above, we dismiss this writ petition, but make no order as to costs. K.M.A. Petition dismissed.