P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.

This petition for a writ of mandamus etc. has been filed by the petitioner who is the Mayor of Karachi Municipal Corporation. He was elected Mayor on 30th May 1956. On 23rd June 1956, i.e., about three weeks after his election, a notice of a motion of 'No Confidence' signed by forty-three Municipal Councillors was received by the petitioner for calling a special meeting for the purpose. The petitioner ruled out this motion as being ultra vires the Act and the Rules by which the Karachi Municipal Corporation is governed. This ruling of his is not challenged so far. It appears that after this motion was ruled out, the Councillors started working in harmony with the petitioner. Nearly three months later the Corpo?ration passed a resolution whereby they deputed the petitioner to attend the Asian Mayors' Conference which was to be held at Tokyo from 30th September to 9th October 1956. The petitioner accordingly left for Tokyo as a representative of the Karachi Municipal Corporation on 25th September 1956. While he was attending the conference at Tokyo he received a telegram from Karachi on 2nd October 1956 to the effect that the petitioner's father had died. The peti?tioner took the earliest plane for Karachi and landed here on the night of 3rd October 1956. After he landed here he came to know that on that same date viz. 3rd October 1956, a Special General Meeting of the Corporation had been summoned by respondent No. 2, the Deputy Mayor, to consider a motion of 'No Confidence' in the petitioner and to declare the office of the Mayor as vacant. The petitioner alleges that at that Special Meeting a complete pandemonium prevailed, the poll was demanded but refused and no resolu?tion was really passed, though the stand taken by the respondents is that the motion of 'No Confidence' was actually passed. The petitioner alleges that the Special Meeting in question could not legally be called and the resolution of No Confidence' even if passed, was void ab-initio. The petitioner saw the Chief Commissioner of Karachi on 4th October 1956 and apprised him of all the facts. Then he resumed the duties and functions of the Mayor. The Councillors created trouble and ultimately he wrote a letter to the Chief Commissioner on 6th October 1956 informing him of all the facts. On 8th October 1956 the Chief Com?missioner wrote a letter to the petitioner in his capacity as the Mayor assuring the petitioner that he was keeping a close watch on the affairs of the Corporation and its meetings and he would not hesitate to take appropriate action if and when necessary. On 7th October 1956 the petitioner received a notice of an Ordinary General Meeting of the said Corporation to be held on 15th October to transact the following business: "Election of Mayor under section 19 (3) of the Municipal Act. This meeting had been called by the order of respondent No. 2 and was signed by Mr. Fazle Haq, the Law Officer of the Corporation on behalf of the Deputy Chief Officer. The petitioner has challenged the legality of the action of respondent No. 2 in calling the Ordinary General Meeting. He therefore came to this Court with the present writ petition on 10th October 1956 praying for a writ of mandamus or any other appropriate writ, direction or order restraining the respondents from holding any meeting of the Corporation for the purpose of passing a 'No Confidence' motion or for the purpose of electing a Mayor of the Corporation. He has also asked for directions restraining the respondents directly or indirectly from interfering with his rights, duties, functions and privileges as Mayor of the Corporation. Mr. Minai the Chief Officer of the Municipal Corporation has filed an affidavit on behalf of respondent No. 1 wherein he says that the meeting on 3rd October 1956 had been held and a motion of 'No Confidence' was passed. He admits that there was great noise and disturbance no doubt but the meeting was not suspended. He has admitted some of the statements made by the petitioner and shown ignorance about the rest. Respondent No. 2, who is the Deputy Mayor of the Municipal Corporation, has filed a counter-affidavit in which he has contested all the allegations made by the petitioner. He says that the petitioner has lost the confidence of the majority of the members of the Corporation, that the 'No Confidence' motion could legally be passed and that he was fully entitled to call the Special General Meeting for that purpose. He alleges that he called the Ordinary General Meeting for 15th October 1956 to elect the Mayor because the petitioner had openly declared in the presence of all the Councillors that he was going to resign from the office of the Mayor. Acting on that statement of the petitioner, he had called the Ordinary General Meeting for the purpose. The petitioner in his rejoinder has denied that he ever resigned his office. We, have heard the learned advocates at great length and we find the petitioner has established his case fully. We will deal with all the questions raised in this petition one by one. (1) The first question is whether the petitioner could be removed from the office of the Mayor by a vote of 'No Confidence'. The Karachi Municipal Corporation is a local self-governing body which is governed by the City of Karachi Municipal Act, 1933, and the rules framed thereunder. Section 19 (1) of the Act reads as follows: "19 (1). The Corporation shall at its first meeting in the month of May in each year elect from amongst the Councillors one of their number to be the Mayor and another to be the Deputy Mayor. The Mayor and Deputy Mayor shall hold office until the first meeting of the Corporation in the month of May of the next following year, unless the Councillors in the meantime retire from office when the Mayor and Deputy Mayor shall hold office until the day for retirement: Provided that if the Councillors retire from office during the term of office of the Mayor, or the Deputy Mayor, the Mayor and the Deputy Mayor shall continue in office until the day for retirement from office of the Mayor or Deputy Mayor repectively." This clearly proves that the Mayor has to hold his office for a period of -twelve months. The causal vacancy in the office of Mayor occurs only as provided by section 11 which reads as follows: "

11. Any Councillor may resign his office by giving notice in writing to that effect to the Mayor and thereupon his office shall become vacant as from the date of his resignation. The Mayor and Deputy Mayor may resign their respective offices by giving notice in writing to that effect to the Provincial Government and thereupon their respective offices shall become vacant as from the seventh day after the date of their resignations. It follows therefore that the Mayor has to hold his office for the statutory period of one year and unless he.4 resigns under section 11 he cannot be removed from his office' The learned advocates for both the respondents admit this legal position. (2) Coming to the so-called 'No Confidence' motion against the Mayor, we find there is no provision in the whole Act permitting such a motion to be tabled. Reliance seems to have been placed on Rule 5 of Chapter VIII of the Rules framed under the Act. This rule reads as follows: "

5. Notwithstanding anything contained in the rules a motion of non-confidence in the Chair shall not be included c in the Agenda unless it has been signed by at least five Councillors and shall be disposed of at a Special Meeting called for that purpose only." We are of opinion that this rule is irrelevant for the following reasons: (a) In the first place this rule occurs in the Chapter which is headed "Rules Relating to Conduct of Business and Procedure at Corporation Meetings." This has nothing to do with the Mayor. The meeting may be presided by the Mayor, by the Deputy Mayo; or by any other Councillor in the absence of both. The Mayor's function is not only to preside at the meetings ; he has got several other rights and duties as well. (b) The word used in Rule 5 is "Chair". It shows there?fore that this has, no reference to the Mayor. In Rule 4 which immediately precedes Rule 5, the word used is ?Mayor?. That shows that the use of the word "Chair" in Rule 5 1s deliberate and should not be mixed up with the word "Mayor". (c) Rules are always framed to carry out the purposes of the Act. There being no provision in the Act with regard to the motion of 'No Confidence' in the Mayor, it cannot be provided under the Rules. This rule therefore will be ultra vires the Act itself. Section 286 of the Act confers the rule-making power. This section covers fourteen long pages and yet there is no provision therein permitting rules to be framed for the purpose of a 'No Confidence' motion. The rule is therefore ultra vires. (d) The learned Advocate for the petitioner has raised a very interesting point in this behalf. He says the "Chair" on 3rd October 1956, when the 'No Confidence' motion is alleged to have been passed, was the Deputy Mayor, respondent No. 2 himself, and therefore if any motion of 'No Confidence' in the "Chair" was passed it should be considered to have been passed against respondent No. 2 himself. (e) Before the passing of the so-called 'No Confidence' motion no notice was given to the petitioner to explain why the motion should not be passed against him. This violates the fundamental principles of natural justice, and it is further important to know that during the entire course of arguments not a single act of any alleged misconduct of the petitioner was referred to or stated at the Bar. The learned Advocate for Respondent No. 1 argued that there was no bar to the passing of a 'No Confidence' motion on the ground that the members should be allowed to have their say, but at the same time beyond the passing of 'No Confidence' motion the Corporation could not go further as there was no provision for the removal of the Mayor. We are of opinion that since there is no provision for the removal of the Mayor, no question of passing a vote of 'No Confidence' in him can arise. The Corporation is governed by the Act and Rules and therefore all actions must be within the four corners of the statutory provisions; they cannot go beyond that. (3) The learned Advocate for respondent No. 2 has placed his entire reliance on the provisions of section 20 (2) of the Act and he has argued that respondent No. 2 had no alternative but to call a special meeting for the purpose of 'No Confidence' motion on 3rd October 1956. Section 20 (4) reads as follows :- "The Mayor or, in any such event as aforesaid the Deputy Mayor, whenever he thinks fit call a special meeting and shall be bound to do so within two weeks of the receipt of a written requisition signed by not less than twelve Councillors or by not less than four members of the Standing Committee." The argument of the learned Advocate was that when he received a requisition for calling the special meeting he was bound to call it within two weeks, for any purpose what?soever. We asked the learned Advocate that if a requisition was received that the Corporation should consider the question of sanctioning a lakh of rupees per month as allowance to each member of the Corporation, would respondent No. 2 still feel bound to call a meeting for such an absurd purpose ?, The reply was that the respondent No. 2 was bound to call a meeting whatever may be the purpose and then it was for the Provincial Government under section 274 of the Act to rule out such a motion or Resolution. We do not agree with this line of argument. The Mayor as well as the Deputy Mayor have to do their duties and perform their functions within the four corners of the Act and the Rules. The Mayor is not a mere nodding automaton. We are further of the opinion that the Deputy Mayor had no jurisdiction and authority to call the meeting for 3rd October 1956. He could call the meeting only if the Mayor was "incapable of acting". Section 20 (3) reads as follows :- "The day, time and place of meeting shall in every other case be fixed by the Mayor, or, in the event of the office of the Mayor being vacant or of his being incapable of acting, by the Deputy Mayor." Subsection (8) of section 20 reads as follows :- "Every meeting shall be presided over by the Mayor if he is present for holding the same, and by the Deputy Mayor if the office of the Mayor is vacant or if the Mayor is absent and by such one of the Councillors present as may be chosen by the meeting to be Chairman for the occasion if both the Mayor and the Deputy Mayor are absent." It will be seen that the words used in subsections (3) and (4) of section 20 are "incapable of acting", while the word used in subsection (8) is "absent". The difference becomes clear. When the Legislature employs different language in a context like this, it must be presumed that their intention was different in the two cases. The petitioner in this case had been deputed to Tokyo by the Municipal Corporation at their own expense by a resolution of the Corporation. He cannot therefore be said to be "incapable of acting " He was actually representing the Corporation at Tokyo and was on duty. Therefore, under section 20 (4) the Deputy Mayor had clearly no authority to summon this meeting In this connection a reference may be made to the case of Ch. Zahur Mohiyyuddin and others v. The Crown (P L D 1956 B J 1), where it was held that the Governor-General who had gone to Europe was held to be on duty and capable of exercising all the powers of the Governor-General. The case of respondent No. 2 under section 20 (4) must therefore fail. The learned Advocate for the petitioner has argued further that by virtue of section 38 (4) of the Act, the Chief Officer had with the approval of the Standing Committee delegated to the Deputy Chief Officer certain duties. The notice of the meeting was signed by the Law Officer Fazle Haq to whom no such delegation had been made and there?fore the notice itself was illegal. The Chief Officer in his counter-affidavit at para. 6 has alleged that as the Deputy Chief Officer had accompanied the petitioner to Tokyo, the work of signing the notices by the Deputy Chief Officer was assigned to the Law Officer, and he was therefore competent to sign the notice in question. We do not think this position is tenable because no approval of the Standing Committee as required by the statute has been alleged much less produced. The learned advocate for the respondent No. 2 has admitted that now that the petitioner is in his office as the Mayor the respondent No. 2 will have no authority to call a meeting if any meeting is, called it would be ultra vires and without jurisdiction. With regard to the summoning of the meeting for 15th October 1956, to elect the new Mayor, the learned advocate has argued that the respondent No. 2 acted on the statement of the petitioner in the presence of the Councillors that he was going to resign his office and therefore he called this meeting. The petitioner has denied this statement and we cannot go into the facts to find what the matter really was. The respondent No. 2,however, being a responsible officer of the Corporation, should have known that that resignation was to be tendered to the Government under section 11 and not to the Municipal Councillors. The respondent No. 2 therefore should have known by 7th October whether the resignation had actually been sent to the Government. Without waiting to inquire about that fact the respondent issued notices for calling the Ordinary General Meeting on 15th October 1956 to elect the Mayor. This action of respondent No.2 was ill-considered and absolutely illegal. The Mayor was in Karachi, he was attending the office and during his presence it was no business of respondent No. 2 to call a meeting of this kind without even caring to know whether the resignation had actually been sent. Since the alleged fact of resignation before the Municipal Councillors has been repudiated by the petitioner, we have to act on the assumption that there was no such resignation specially when the resignation could not be tendered to the Municipal Councillors. We think this was only a pretext made out for the action of the respondent No. 2 in calling the Ordinary General Meeting. The learned advocate then argued that when the petitioner found that the majority of the Corporation was against him he, as a self-respecting man, should have volun?tarily resigned and should not have desired to impose the will of the minority on the majority. We are not concerned, here with the morals of men but even on that plane we are satisfied that the conduct of respondent No. 2 or the so-called majority is far from laudable. We have already said above that during the entire course of arguments, not a single reference to any misconduct on the part of the petitioner was made. He was elected on 30th May and on 23rd June the motion of 'No Confidence' came. It cannot be disputed that this motion could not have been conceived in a single day ; there must have been some talks before the sending in of such a motion. What the petitioner did during those two or three weeks has not been alleged at all. It will be for the Provincial Government to inquire into causes that led to this kind of motion and then to take a suitable action in the interests of the administration of this local self-governing body. After this motion was ruled out by the petitioner, nothing was done by the so-called majority to challenge this ruling. On the contrary, it is clear on record that thereafter the petitioner had no opposition and ultimately after three months, the Corporation passed a resolution and deputed him to Tokyo to represent the Corporation at the Asian Mayors' Conference. Having sent him out to Tokyo, the majority again started planning and called a meeting within a week to discuss the 'No Confidence" motion. The petitioner, before going to Tokyo, had the absolute confidence of the Corporation or else he could not have been deputed there at the expense of the Corporation. What he did after leaving for Tokyo to provoke this motion of 'No Confidence' is beyond our imagination. Not only this, but when the petitioner actually returned to Karachi and resumed his duties, an Ordinary General Meeting was summoned for the purpose of electing the Mayor, to say nothing about the telegram sent to the petitioner at Tokyo. Therefore, before the respondent No. 2 challenges the petitioner on the plane of morals it would be better for him to heal himself. All these are matters which may be considered by the Provincial Government hereafter. If, as alleged, the petitioner has no quorum to conduct the meetings of the Corporation, the Provincial Government could dissolve the Corporation by virtue of the powers tinder section 280 of the Act. The learned advocate for respondent No. 2 had opened his arguments by saying that the petitioner had another remedy and he should not therefore be here with this writ petition. He also further said that the petitioner had asked for a writ or mandamus to restrain the respondent from doing some things and therefore the writ of mandamus in the negative form could not issue. The learned advocate has referred to several rulings on the second aspect of the case. With regard to the other remedy he said that the petitioner should have moved the Provincial Government under section 274 of the Act or should have filed a regular suit instead of filing this writ petition. We, however, see no substance in both these arguments. With regard to section 274, it has been proved that the petitioner did actually approach the Chief Commissioner and also wrote him a letter. The Chief Commissioner merely informed the petitioner that he was keeping a close watch on the meetings of the Corporation and beyond that he took no further action. After the meeting had been illegally called for 15th October 1956 to elect the Mayor, it is apparent that the consequences for the petitioner would have been disastrous and beyond repair. He had, therefore, a very clear case for immediately coming here with a writ petition. With regard to the filing of a regular suit, the less be said the better. The suit may take a number of years to decide and long before it came to a termination the statutory period of one year, during which the petitioner has to occupy his office, will actually run out. The suit was therefore no remedy whatsoever. With regard to the argument that a writ of mandamus in the negative form cannot issue, we consider it unnecessary to refer to all the rulings quoted by the learned advocate for respondent No. 2 because all the ruling were based on a misconception with regard to the power of the High Court in the matter of issuing writs. We have got the latest rulings and those are a complete answer to the point raised. In the case of Said Omar v. Federation of Pakistan and others (P L D 1956 Lah. 382) their Lordships directed the respondents that they should not interefere with the possession of the petitioner till it was lawfully concluded. In the case of Abdul Latif v. M. R. Inayat and two others (P L D 1956 Lah. 537), their Lordships ordered as follows :- "We accordingly issue a writ of mandamus to Govern?ment restraining it from proceeding further with the inquiry". In the case of Ch. Khadim Mohy-ud-Din v. The Deputy Rehabilitation Commissioner Lyallpur (P L D 1956 Lah. 479) we find the con?cluding order in the following words: "We, therefore, allow this petition and direct the issue of a writ of mandamus to the Deputy Rehabilitation Commissioner, Lyallpur, restraining him from ejecting the petitioner from the bungalow in question in pursuance of the two notices issued by him on 7th and 21st October 1955". It is therefore clear that a writ of mandamus can issue restraining the respondents from doing certain things. In view of all these reasons we allow the petition and direct a writ of mandamus to issue restraining the respondents from holding any meeting of the Karachi Municipal Corporation for the purpose of passing a 'No Confidence' motion in the petitioner or for the purpose of electing a Mayor of the Corporation during the petitioner's term of office. We further restrain the respondent No. 2, his agents, servants and all persons claiming through or under him from directly or indirectly interfering with the petitioner's rights, duties, functions and privileges as Mayor of the said Corpo?ration. We further direct that respondent No. 2 should bear the costs of the petitioner. A. H.??????????????????????????????????????????????????????????????????????????????????????? Writ of mandamus issued.